Court Discretion to Order Party be Assisted by an Interpreter

BY Hearsay

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In Schoonwinkel v Inspec Group Pty Ltd & Ors [2023] QCA 173 (25 August 2023) the Queensland Court of Appeal addressed the issue of court procedure where a party to a court application requested, but the hearing judge refused, an interpreter for that party upon the application. The decision was upheld by the appellate court. Dalton JA (Bond JA in substantial part, and Flanagan JA agreeing) wrote:

The Proceeding Below

Mr Schoonwinkel has begun a personal injuries proceeding in this Court. Mr Schoonwinkel has drawn his own statement of claim. In the proceeding Mr Schoonwinkel says he was employed as a diesel fitter at the Blackwater Coal Mine at the time of the acts he complains about. He sued the first respondent, who he alleges was his employer; the second respondent, who he says engaged the first respondent as its subcontractor, and the operator of the Blackwater Coal Mine, where the subcontract work was performed. He alleges that a co‑worker made a sexual comment to him during the course of his work and when he retaliated, burnt his hand with a cigarette. He alleges that on that day, or the next day, “faeces-like matter” was smeared on the windscreen of his car. His claim is for $4,925,729 as damages resulting from these actions, and what he says was a failure to respond appropriately by the respondents. The claim itself acknowledges that Mr Schoonwinkel needs leave pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) in order to proceed.

The Application Below

Mr Schoonwinkel filed an application asking the Court to order that the parties to this litigation attend a compulsory conference under the Personal Injuries Proceedings Act 2002 (Qld), and that the respondents to this appeal provide disclosure to him of various identified documents. Mr Schoonwinkel swore an affidavit supporting his application.
At the date fixed for the hearing of the application, Mr Schoonwinkel appeared by telephone and spoke to the applications judge in a language which was not English. Despite the primary judge’s endeavours to engage him in either hearing the application, or having it adjourned to a date which was suitable for him, he refused to participate in the proceeding in English. The primary judge made an order adjourning the application to a date to be fixed, with costs reserved.

The Grounds of Appeal

Mr Schoonwinkel appealed to this Court on the grounds that the judge should have allowed him an interpreter at the hearing of the application and that in the absence of an interpreter, he had been “denied the right to a fair hearing and not given a reasonable opportunity to present [his] case”. The second ground of appeal was that the applications judge discriminated against him by insisting that he engage an interpreter at his own cost. There were 13 more grounds of appeal but they did not allege errors of fact or law which are recognisable or susceptible of meaning or adjudication according to the laws which this Court must apply.
Mr Schoonwinkel speaks Afrikaans and asserts (in English) that that is his mother tongue. The claim, statement of claim, application and affidavit are all written in English. The correspondence annexed to the affidavit to and from Mr Schoonwinkel is written in English. The notice of appeal and a 25 page outline of argument in this Court are in English. The documents are all written in perfectly good English. I draw the inference that Mr Schoonwinkel can communicate in and understand written English. It seems to me likely that Mr Schoonwinkel spoke and understood English when he worked as a diesel fitter at the Blackwater Coal Mine. The allegations he makes in his statement of claim are about his co-workers taunting him in English; his retorting in English, and about his subsequent conversations with management, in English.
So far as the first two grounds of appeal are concerned, Mr Schoonwinkel cited authorities for the proposition that in a criminal trial a defendant who cannot speak English ought to be provided with an interpreter, otherwise there will be an unfair trial: Ebatarinja v Deland (1998) 194 CLR 444, 454, [27]. He cited Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 for the proposition that the Court has a discretion as to whether or not to allow a witness to give evidence in a proceeding through an interpreter. In that case the appellant’s first language was not English. The High Court said:

“[The primary judge] was asked to permit a witness Sammitt to give evidence through an interpreter. What his Honour said as to this in the course of Sammitt’s examination in chief was as follows: ‘I feel that his English so far has been good enough to give evidence. It may be the interpreter can come forward and if there is any particular word he does not understand, you can ask me and I will clear it up through the interpreter’. From time to time thereafter the interpreter was used for the purpose his Honour indicated. It was contended before us, however, that it was an error not to permit the witness to give evidence in his native tongue. The general proposition that a witness is entitled to give evidence in his native tongue is one that cannot be justified. It appears to us that in adopting the course which he did, his Honour was not only exercising his discretion but was exercising it wisely. We agree with the decision of the Full Court of the Supreme Court of New South Wales in Filios v Morland [1963] SR (NSW) 331 that there is no rule that a witness is entitled as of right to give evidence in his native tongue through an interpreter and that it is a matter in the exercise of the discretion of the trial judge to determine on the material which is put before him whether to allow the use of an interpreter and the exercise of this discretion should not be interfered with on appeal except for extremely cogent reasons”.

The appellant cited the judgment of Kirby P in Adamopoulus v Olympic Airways SA (1991) 25 NSWLR 75. In that case, Mahoney JA said that:

“Mr Adamopoulos submitted that the trial should be adjourned because he did not have the assistance of an interpreter. His submission was rejected. Mr Adamopoulos has submitted to this Court that the judge was guilty of appealable error in rejecting it.

A party does not in law have the ‘right’ to an interpreter. A court before which a party comes will consider whether it is appropriate that an interpreter be available and if, in an appropriate case, it does not do so, the party may appeal on the ground of error. But to describe this as a ‘right’ to an interpreter is, in my opinion, conceptually inaccurate. Such a description may be a useful tool in other contexts, for example, in discussion in general human rights contexts. But to use the term ‘right’ in a professional legal context, in considering whether a party may appeal against the grant or refusal of an adjournment, is in my opinion apt to lead to confusion.

…

It is generally for the trial judge to decide whether, upon an assessment of the circumstances, the party seeking an interpreter would without one suffer such disadvantages as would result in a level of unfairness unacceptable in the context of the time and the trial. This, I think, is the principle adopted by the High Court in Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 in a civil case. Giving due weight to the circumstances of Mr Adamopoulos, I do not find in the present case that the learned judge was guilty of an appealable error in directing that the trial proceed as it did.” pp 80‑81. Handley JA said in the same case:

“The appellants also challenged his Honour’s refusal to allow the first appellant the assistance of an interpreter. At the date of the hearing the first appellant had been resident in Australia for some thirty-five years. The judge concluded that he did not require the assistance of an interpreter. No similar application was made to this Court and the first appellant appeared to conduct the proceedings and address the Court without any apparent difficulty arising from the use of the English language. The decision of a judge at first instance to allow or refuse a party or a witness the services of an interpreter is also a matter within the discretion of the judge and no ground has been made out for this Court to interfere with the exercise of that discretion: see Dairy Famers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464.” – p 84.

The appellant relied upon more liberal comments made by Kirby P in the same case, to the effect that as Australia has become a much more multicultural nation since the decision in Dairy Farmers Co-operative Milk Co Ltd v Acquilina, some of the remarks expressed in that case were no longer applicable to the obligations of courts operating today. In fact, I think the wide discretion given to a judge by the rule laid down in Acquilina is applicable today. What might have changed is the content of the matters considered in exercising that discretion. Kirby P said that, “… [in] a multi‑cultural society, courts should strive to ensure that no person is disadvantaged by the want of an interpreter if that person’s first language is not English and he or she requests that facility to ensure that justice is done.” – p 78. Later Kirby P said, “This said, a discretion must always be reserved to the trial judge to balance the inconvenience occasioned by a late application for an interpreter; the possibility that the application has been made for extraneous or ulterior purposes; and an assessment that in the particular case an interpreter is not needed for the issues involved.” – p 78.
In this case there was no evidence at all that the appellant did not speak and understand English perfectly well. In fact, I draw inferences to the contrary. If that is so, he is not entitled to an interpreter in court, whether he pays for the interpreter or not.
At a factual level, the appellant submitted, in perfect written English, that he had no opportunity to present his case before the applications judge because nobody could understand what he said when he spoke Afrikaans. He does not have a right to speak Afrikaans in Court; Court proceedings are conducted in English.
The appellant submitted that the applications judge was well aware ahead of the hearing that he needed an interpreter and was unable to afford an interpreter himself due to being a disability pensioner. He based that submission on the fact that he had emailed the Court prior to the hearing of his application. In fact, there was no evidence that the primary judge was aware of such things.
There is no basis for thinking that the judge ought to have arranged for an interpreter for Mr Schoonwinkel, and no law binding on the primary judge compelled her to do so. It was a matter for her discretion and, in the circumstances of the present case, I cannot see that her discretion in any way miscarried. As to the order the judge made, it was the fairest available in the circumstances. It would have been open to her Honour to dismiss the application, as Mr Schoonwinkel did not properly appear to prosecute it. Instead she preserved his rights, leaving it at his discretion as to when the application came back on in Court, and made no costs order against him.
Because it has been expressly raised, I will say something as to the cost of an interpreter. In 2017 the Judicial Council on Cultural Diversity developed Recommended National Standards for Working with Interpreters in Courts and Tribunals. Queensland Courts, including the Supreme Court, adopted the guideline in part. The part of the guideline adopted by Queensland Courts is published on the Supreme Court website as “Working with Interpreters in Queensland Courts and Tribunals” (14 September 2022). That document is not binding on any particular court or judge; it is a guideline to assist a court or judge in considering how to best afford justice in any particular case where there is a participant in a civil or criminal proceeding who has limited English. The guideline works on the basis that such a person will be assisted by an interpreter in order that they properly understand and participate in the proceeding – paragraph 2.1. The standard recommended at schedule 1, paragraph 3.1(b) is that in civil proceedings, where no legislation provides to the contrary, the costs of an interpreter are to be borne by the party to the proceeding who requires the interpreter.

(emphasis added)