Harb v Distaga Pty Ltd t/as [1989] NSWCC 9; (1989) 5 NSWCCR 165 (1 July 1989)

[1989] NSWCC 9; (1989) 5 NSWCCR 165 (Matter No. 346-87)

HARB v. DISTAGA PTY LTD t/as

COMPUTER RESOURCES CO

Compensation Court of New South Wales: Manser J

T. Rowles, for the applicant

B. Kops, for the respondent

EVIDENCE - WITNESSES - EVIDENCE THROUGH INTERPRETER - RIGHT TO INTERPRETER - DISCRETION OF TRIAL JUDGE - ANSWERS BEING GIVEN BY WITNESS IN ENGLISH OR BEFORE QUESTIONS TRANSLATED

Ex tempore

MANSER J: In this matter the worker claims compensation from the respondent for incapacity which he alleges arises out of injuries suffered by him in the respondent's employ. The matter was originally listed before me on 13 February 1989 and proceeded late on that day with the taking of the applicant's evidence using an Arabic interpreter. The matter was listed for hearing for 17 May but was adjourned to 23 June.

On 23 June there was further evidence from the applicant. I note from the transcript of 23 June that there was a discussion between the Bench and applicant's Counsel, about the habit of the applicant to give his evidence in a manner which indicated that he was not using the facility of the interpreter. That is to say that it was at least apparent that answers were being given to questions before they were translated or that they were being given in English. Mr Rowles, at page 5, drew attention to the fact that there were occasions when the worker had to be reminded of the necessity to give his evidence in Arabic.

The matter was listed today, commencing at 4.00 pm, the Court being of the hope that the evidence would be concluded so that the matter could proceed to judgment before the end of the current law term. The evidence has proceeded in a halting fashion due - in no small measure it appeared to me - to the worker's continued habit of answering questions before they had been translated to him.

I came to the view, after having observed the worker over three days and having listened to him giving his evidence, that he did not need the services of the interpreter.

The rights of witnesses to the use of interpreters where there is a claim that they are not fluent in the English language received attention by the Court of Appeal in GRADIDGE V. GRACE BROS PTY LTD (1988) 93 FLR 414.

It is interesting to note that the President's judgment which occupies some 12 pages and contains within it numerous citations, was delivered according to the report ex tempore. The President's judgment is - as so many of his judgments are - well researched and the points tellingly put. It seems to me that the thrust of his Honour's judgment is that persons appearing before courts must be given every facility to give their evidence properly and where persons so appearing

are parties to litigation, that they should be fully aware of what is transpiring before the court and have every opportunity to present their case in the best possible way.

Such objectives are consistent with the notion that courts are open institutions and that justice must not only be done, but be seen to be done. It has been pointed out - both by the President and by Samuels and Clarke JJA - that it is necessary to balance procedural fairness with both the necessity of permitting a trial Judge to retain ultimate command of order and decorum in the court and the objective of expeditious and speedy trials to actions.

In the present case the Court has attempted to permit the applicant worker the greatest possible latitude in giving his evidence to the point where a trial which, on its face, presents no abnormal difficulties has become extremely protracted. It is now 6.40 pm and it is unreasonable in the circumstances that the Court should tolerate the prolongation of a case beyond what would be regarded as its normal run, with the prospect, at its current rate, of proceeding to another full day or more for the purpose of taking evidence of the various witnesses whom one has had notice of, either expressly or by the nature of the cross-examination such as it has proceeded today.

I have found that the scales have been tipped, regrettably, in favour of bringing an end to the use by the worker of his interpreter as I have become convinced that the interpreter is not required for the purposes of him understanding the proceedings before the Court or in the presentation of his case in the most advantageous way to his cause. I have therefore decided to dispense with the services of the interpreter.

Interpreter's services dispensed with

Solicitors for the applicant: Michell Sillar & Brown

Solicitors for the respondent: Hunt & Hunt