Bundarrah Pty Ltd v Schmahl

Catchwords: CIVIL PROCEDURE — Where English was witness’s second language — Where no application made for witness to give evidence through interpreter — Where no objection taken to evidence in English — Where magistrate attributed witness’s non-responsiveness to language difficulties — Whether magistrate erred by acting on witness’s evidence given in English — Whether plaintiffs denied procedural fairness — Whether magistrate gave too much weight to witness’s evidence

Legislation Cited: Evidence Act 1995 (NSW), ss 30, 55, 56, 135
Local Court Act 2007 (NSW), s 39, 40, 41
Oaths Act 1900 (NSW), s 27A
Uniform Civil Procedure Rules 2005 (NSW), Pt 31, Div 3; rr 31.62, 31.8, 35.7

Cases Cited: Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75
Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1
Bray v Ford [1896] AC 44
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2
Rose v Tunstall [2018] NSWCA 241
Tory v Megna [2007] NSWCA 13

Category: Principal judgment

Parties: Bundarrah Pty Limited (First plaintiff)
Benjamin Foulis (Second plaintiff)
Marlis Schmahl (Defendant)

Representation: Counsel:
A Djurdjevic (First and second plaintiffs)
J Gruzman (Defendant)
Solicitors:
Gells Lawyers (First and second plaintiffs)
Meridian Lawyers (Defendant)

File Number(s): 2025/00134307

Publication restriction: Nil

JUDGMENT

1. The first plaintiff (Bundarrah) is the owner or bailee of a Toyota Hiace motor vehicle that was involved in a collision with a Kia motor vehicle driven by the defendant (Ms Schmahl) on Mona Vale Road on 17 March 2023. The second plaintiff (Mr Foulis) was driving the Toyota Hiace at the time of the collision.

2. Bundarrah sued Ms Schmahl for damages in the Local Court at the Downing Centre. Ms Schmahl cross-claimed against Mr Foulis. On 11 March 2025 Atkinson LCM (the primary judge) gave judgment for Ms Schmahl on both claims as follows:

3. judgment for Ms Schmahl on Bundarrah’s amended statement of claim;

4. judgment for Ms Schmahl in the sum of $27,595.57 together with interest on her cross-claim brought against Mr Foulis.

5. Her Honour’s reasons were given orally.

6. By an amended summons filed 30 June 2025, the plaintiffs in this Court, Bundarrah and Mr Foulis (the appellants), appeal from that decision pursuant to s 39(1) of the Local Court Act 2007 (NSW). Section 39(1) provides for an appeal to this Court as of right “but only on a question of law.”

Context

5. Several observations should be made before turning to the three grounds of appeal that are pressed.

6. First, Ms Schmahl is a native speaker of German. English is her second language. Ms Schmahl gave all of her evidence in English. Each remaining ground of appeal arises out of the following part of Atkinson LCM’s oral reasons for judgment.

“Ms Schmahl gave evidence; it is an indication that even though people [are] English-speakers for many years, having lived in Australia since 1987, English that is used in a court setting can be different to colloquial English and a comment was [made] at the beginning about whether or not an interpreter was required. In my view, one was required. Ms Schmahl clearly struggled with understanding some matters. I did not find her to be unreliable or argumentative. In fact, my impression was, she simply was not understanding some of what was put to her and I have not drawn any adverse inferences about her evidence.”

Tcpt, 11 March 2025, 67.29-37.

7. What her Honour meant by “required” in this context is open to debate. Four pages later in the transcript, in the course of argument as to costs, her Honour said, “I may not have articulated properly. I think this was a case where she [i.e., Ms Schmahl] should have had an interpreter.” Tcpt, 11 March 2025, 71.50-72.1. Half a page later, her Honour said, “My comment is, if in doubt, order an interpreter.” Tcpt, 11 March 2025, 72.19-20. Those observations suggest that her Honour’s use of the word “required” in her oral reasons was intended to convey that it would have been preferable to receive at least some of Ms Schmahl’s evidence through an interpreter, because “Ms Schmahl clearly struggled with understanding some matters” and “simply was not understanding some of what was put to her”.

8. But given that, as will be seen, her Honour relied extensively on Ms Schmahl’s evidence given in English, her Honour should not be taken to have concluded that it was in any sense necessary to do justice as between the parties, or indeed to make use of Ms Schmahl’s evidence as a whole, that it be given through an interpreter. It must follow from the use her Honour in fact made of Ms Schmahl’s evidence that her Honour found it (or at least substantial parts of it) relevant and cogent.

9. Secondly, the basis on which the primary judge decided the matter was to some extent based on preferring Ms Schmahl’s evidence to Mr Foulis’, and to some extent based on Mr Foulis’ own evidence. The accident occurred at an intersection with traffic lights on a dual carriageway in which there were three forward lanes and one right-hand turning lane in each direction: Tcpt, 11 March 2025, 65.40. Ms Schmahl’s Kia was turning right at the intersection when it was struck by the oncoming Toyota Hiace driven by Mr Foulis. Mr Foulis’ case was that he had been travelling in lane 3 (i.e., closest to the median strip). Ms Schmahl’s case was that Mr Foulis had been in lane 1 (i.e., closest to the footpath), obscured by the traffic which had come to a halt at the lights in lanes 2 and 3.

10. Her Honour referred to Mr Foulis’ evidence that when he saw the traffic lights ahead change from green to amber, “I took my foot off the accelerator but as I was driving at 55 to 60 ks per hour, I determined that I did not have enough time to safely stop before the stop line at the lights and I, therefore, continued straight through the intersection while hovering over my brake pedal.” Tcpt, 11 March 2025, 67.10-14. Her Honour expressed doubt about that evidence: at 68.38-69.5.

11. The primary judge also said the following about the evidence of the two witnesses.

“Ms Schmahl, as I said, was a driving instructor for 30 years. She was driving a near-new car. She says that she had actual memory but she has also been teaching this behaviour and, in my view, that distinguishes her from people who might talk about their patterns of behaviour or habits. She is actually teaching this and modelling this behaviour and there is nothing to suggest that she deviated from it. She did not see anyone in lane 1 and, in my view, the damage is consistent with both versions.

One other matter that troubled me with Mr Foulis was his last-minute observation of Ms Schmahl, if his version is to be accepted, and that he was travelling in the right-hand lane. The way the two turning lanes line up, he would have been in relatively close proximity to Ms Schmahl’s vehicle and I find it implausible that he would not have been able to observe her.”

Tcpt, 11 March 2025, 69.7-19.

12. When her Honour “weigh[ed] up all of the evidence today”, she expressly preferred the evidence of Ms Schmahl to that of Mr Foulis: at 69.37 and 69.46. Her Honour found:

“When I take both versions into account, I am persuaded, on the balance of probabilities, the evidence is more consistent with the account given by Ms Schmahl; namely, that she did not see Mr Foulis but that was because he was travelling in lane 1 instead of lane 3 and I note that Mr Foulis did not say which lane he was travelling in until it was being prepared for the hearing. His actions in taking his foot off the accelerator must have caused his vehicle to slow. The light had been orange for some time. He said that it was still orange as he entered, but I still have significant concerns as to whether or not that was indeed the case; he was increasing the risk of the light turning red before he entered it and by conducting the manoeuvre he had. He did speak of the problems if he braked hard, but it just does not explain why he would do something to cause his vehicle to slow its momentum whether [sic] entering what is a major intersection.”

Tcpt, 11 March 2025, 69.23-33.

13. Her Honour held:

“I find that Mr Foulis breached his duty of care when he failed to check for other vehicles and took his foot off the accelerator when he went through [the] intersection. I also find Ms Schmahl did not breach her duty of care. I am satisfied she had been paying attention. She positioned her vehicle in a safe position in the intersection and only moved when she saw the vehicle stopping in response to the traffic lights. She only came into contact with Mr Foulis when he moved into the intersection and, as I indicated earlier, despite the evidence that he gave about it being orange, I cannot be satisfied that it was still orange at the point that he went in.”

Tcpt, 11 March 2025, 70.13-21.

14. In other words, save for the point that her Honour had made earlier (“I have not drawn any adverse inferences about her evidence”), the fact that Ms Schmahl’s evidence had not been given through an interpreter did not feature in her Honour’s dispositive reasoning. As noted above, that reasoning included accepting that Ms Schmahl’s evidence was relevant and cogent.

15. Thirdly, the two principal themes of the appellants’ arguments in this Court are (1) that Ms Schmahl’s evidence given in English was inadmissible and should be treated on the appeal on the basis that it should not have been admitted, and (2) that the appellants were denied procedural fairness because they were unable properly to test her evidence because she did not give it through an interpreter.

16. Yet at no point was any application made by any party that Ms Schmahl give evidence in whole or in part through an interpreter. Nor did the appellants take any general objection to, or make any general complaint of procedural unfairness about, Ms Schmahl’s giving evidence in English without an interpreter. Nor did the appellants object to any particular evidence she gave, or seek to have it excluded pursuant to s 135 of the Evidence Act 1995 (NSW), on the ground that its probative value was substantially outweighed by the danger that the evidence might be (a) unfairly prejudicial to the appellants (because of the difficulty in challenging or testing the evidence in cross-examination in the absence of an interpreter) or (b) be misleading or confusing (because of any difficulty Ms Schmahl may have had in understanding or using English).

17. The appellants submit (reply submissions at par 9) that they were not required to raise any such objection or complaint in circumstances where (a) Ms Schmahl’s affidavit was not translated (“[t]he reasonable inference to be drawn is that [Ms Schmahl’s] lawyers and further and in the alternative [Ms Schmahl] herself were of the view that [Ms Schmahl] did not need an interpreter”); (b) her witness statement was also not translated; (c) on the first day of the hearing, immediately prior to Ms Schmahl’s oral evidence, her counsel said that English was her second language and that it was necessary to ask questions clearly; and (d) under cross-examination, Ms Schmahl said she could speak and read English.

18. With respect, those arguments miss the point. The appellants were not bound by any of those matters at first instance. But they now contend in this Court that Ms Schmahl’s evidence was inadmissible, and alternatively that they suffered a denial of procedural fairness. No such objection or complaint was made at first instance. If these points had been taken below, arrangements might have been made for Ms Schmahl to give her evidence through an interpreter. Instead, the appellants seek a remitter to the Local Court so that that could now happen. Moreover, to the extent that the appellants now submit that what occurred in the course of Ms Schmahl’s cross-examination demonstrates procedural unfairness (in particular, because of difficulty in testing her evidence), those matters must have been apparent at the time to counsel then briefed. The failure to make any complaint (in particular, one that would or might have led to Ms Schmahl’s giving evidence through an interpreter) must be seen as a forensic choice. It was also a rational one, given that Ms Schmahl’s evidence given in English was at times non-responsive, which provided a basis to submit, as Counsel in fact did, that she was an unreliable witness in the sense of evasive. It is also some reason for doubting that what occurred in the course of Ms Schmahl’s cross-examination involved any unfairness.

19. Fourthly, Ms Schmahl’s proficiency in English was the subject of discussion and cross-examination at the hearing, including the following matters. As noted above, immediately before calling Ms Schmahl, her counsel said: “I’d indicate the witness, English is her second language, she is German. It’s fine but we just need to take that into consideration and ask questions clearly.” Tcpt, 4 March 2025, 22.25-7. That Ms Schmahl was a German native speaker who sometimes had “a miscomprehension of English” had also been made express at par 8 of her witness statement served the night before the hearing.

20. Ms Schmahl gave evidence in cross-examination that she had been in Australia since 1987; that she had been a driving instructor for 31 years; and, rejecting the proposition that she was still largely a German speaker at home, said “It’s always English.” Tcpt, 4 March 2025, 25.4-11. Ms Schmahl also confirmed that she could read English, and that she had read through her statement herself in English: Tcpt, 4 March 2025, 27.40-48. The cross-examination occupied some 15 pages of transcript. In transcript, Ms Schmahl’s evidence reads at times as non-responsive. Counsel at times had to repeat or rephrase a question. But it is not obvious that she was ultimately unable to understand the questions being asked.

21. Fifthly, in the course of the final address of counsel for the appellants before the primary judge, the following exchange took place concerning Ms Schmahl’s evidence.

“HANNA: … I wouldn’t put it anywhere as near as the defendant was trying to mislead your Honour in any way, but she was an unreliable witness.

HER HONOUR: I left that afternoon and I said to myself, I think if in doubt [about] a witness’s English ability, it’s worth getting an interpreter. I think there was definitely a language barrier there.

HANNA: I wasn’t attempting to--

HER HONOUR: No, I’m not being critical but I think it’s a lesson about getting interpreters where English isn’t their first language.

HANNA: It is, your Honour, but she was being very non-responsive and even with a reasonable command of English, she was intent on telling her story and not answering the question. To that extent, it was unreliable because it was non-responsive, even to very simply questioning, and your Honour, it was in the nature of the witness. I’m not sure if it would have been that different with an interpreter, with respect. She was intent on saying what she wanted to say.

If we add to that the unreliability of her statement which was clearly drafted from the perspective of the wrong person’s evidence, as in it actually attest[ed] to the other person turning right across her path, and that’s a mistake that was made and she did concede in cross-examination that she trusted the statement that was given to her and she signed it. It was a little curious that there were amendments to her statement right at the beginning which are fairly inconsequential to us, but then on a critical point, that is, who turned right and who was proceeding straight through, there was no change.

On both the written and the oral level, your Honour, the defendant’s evidence should be compared as unreliable, particularly in comparison to the plaintiff’s. …”

Tcpt, 5 March 2025, 57.3-33.

22. It should be noted that counsel for the appellants expressly stated that he was “not sure if it would have been that different with an interpreter”. The reasons advanced were “it was in the nature of the witness” (i.e., to be non-responsive) and “she was intent on saying what she wanted to say”.

23. Sixthly, as to what the primary judge meant when she said that an interpreter was “required”, it is significant that her Honour did not refer to either s 30 of the Evidence Act or Pt 31, Div 3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Both provisions address the use of interpreters. They do so in a context where UCPR, r 31.57 provides, “Subject to this Division, proceedings in the court are to be conducted in English.” It is clear that her Honour was not purporting to determine the application of those provisions to Ms Schmahl’s evidence, and it was not submitted otherwise. Nevertheless, the appellants submit that the primary judge’s statements that “Ms Schmahl clearly struggled with understanding some matters” and “simply was not understanding some of what was put to her” amount to findings which satisfy the criteria identified in both regimes. That submission should not be accepted.

24. Section 30 provides:

30 Interpreters

A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

25. The provision is permissive (“may give evidence”), in the sense that it confers a presumptive permission for any witness to give evidence “about a fact” through an interpreter. The provision is also conditional, in the sense that the presumptive permission is withdrawn if the witness has a certain proficiency in English. The level of proficiency which disengages the permission is not absolute, as the words “sufficiently” and “adequate” make clear. That language entails an evaluative assessment by the court.

26. Before addressing the evaluative aspect, it is important to note that the regime is not mandatory. One reason why it is difficult to make a connection between the primary judge’s use of the word “required” and the operation of s 30 is that the section is purely permissive. It does not “require” the use of an interpreter where, as here, none was sought. Moreover, the primary judge did not refer to s 30, nor address the s 30 criteria, nor purport to carry out the evaluative assessment of what was “sufficient[]” or “adequate”. There was no evidentiary enquiry specifically directed to those issues.

27. The evaluative aspect is significant. The question under s 30 is not whether the witness understands a particular question or questions. It is whether, despite any difficulties, the witness can understand and speak English sufficiently to enable the witness to understand and to make an adequate reply to questions that may be put about the fact. That language contemplates that both the subject matter (“the fact”) and the nature and complexity of the “questions” (for example, cross-examination on a prior inconsistent statement made orally to a third party) may bear on the court’s evaluative assessment. The focus on questions and answers “about the fact” also directs attention to an outcome: has the witness understood and adequately replied to questions about that fact? That it may take more than one question and answer for the witness to do so does not necessarily satisfy the s 30 criteria. Thus, her Honour’s observations that Ms Schmahl “struggled with understanding some matters” and “simply was not understanding some of what was put to her” fall short of meeting the s 30 criteria. Her Honour did not take the further and necessary step of considering whether, despite those difficulties, Ms Schmahl could understand and make an adequate reply.

28. The provision of the Rules corresponding to s 30 of the Evidence Act is UCPR, r 31.58, which uses language similar but not identical to that of s 30. Rule 31.58 provides as follows:

31.58 When interpreters may be engaged

(1) If the court is satisfied that a witness cannot understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put to the witness, then the witness may give—

(a) oral evidence in the other language that is interpreted into English by an interpreter in accordance with this Division, or

(b) evidence by an affidavit or statement in English that has been sight translated to the witness by an interpreter in accordance with rule 31.62.

Note.

Section 30 of the Evidence Act 1995 provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

(2) The party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the standards and requirements imposed by this Division.

(3) If the court is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand and participate in the proceedings, the court must permit the party to use an interpreter who meets the standards and requirements imposed by this Division so as to communicate with the court (but for no other purpose).

29. Subrule (1), which concerns witnesses, is again permissive, not mandatory: “the witness may give…” So too is subr (3), which concerns parties: “the court must permit the party to use an interpreter … so as to communicate with the court (but for no other purpose).” The reference in subr (2) to “a witness requiring an interpreter” should thus be understood to mean a witness who wishes (or perhaps who is called by a party who wishes the witness) to give evidence through an interpreter, and who satisfies the criteria identified in the rule.

30. In this respect, unlike s 30, r 31.58(1) does not confer a presumptive entitlement to an interpreter. Instead, the rule is engaged only if the court is satisfied that the two evaluative criteria (“sufficiently” and “adequate”) are met. The operation of the evaluative criteria differs slightly from that in s 30. Rule 31.58(1) does not refer to “evidence about a fact”. Instead, the issue is whether the witness can understand and make an adequate reply to “questions that may be put to the witness”. It may be that that requires an overall assessment of the witness’s proficiency in English, and thus contemplates that the witness will give the whole, rather than parts, of their evidence through an interpreter. On that approach, the mere fact that a witness had not understood some matters would not itself show that the criteria were met. But it is not necessary to determine those issues. Again, the primary judge did not refer to r 31.58, nor purport to carry out the evaluative assessment necessary to determine whether it was engaged.

31. In the result, when the primary judge said that an interpreter was “required”, her Honour was not referring, and cannot be taken to have been referring, to any “requirement” under s 30 or r 31.58. Those provisions do not in any sense “require” the use of an interpreter unless one is sought. And even where an interpreter is sought, permission to use one will not be granted where (in the case of s 30) the evaluative disengaging criteria are satisfied or (in the case of r 31.58(1)) the evaluative engaging criteria are not satisfied. The primary judge did not undertake those evaluative assessments. Her Honour’s statements that “Ms Schmahl clearly struggled with understanding some matters” and “simply was not understanding some of what was put to her” thus do not amount to findings which satisfy the criteria identified in either regime. The primary judge was clearly satisfied in this case that Ms Schmahl had a sufficient grasp of English to understand questions she was asked and to give adequate replies that it was appropriate to rely on much of her evidence given in English for the purposes of making the dispositive findings below.

32. Seventhly, putting to one side that neither s 30 nor r 31.58 requires a witness to give evidence through an interpreter, and that no interpreter was sought in this case, those provisions do not provide that the failure to permit a witness to give evidence through an interpreter in accordance with either provision has the consequence that evidence given in English without an interpreter is automatically rendered inadmissible. The appellants argued in this Court that evidence given in English by a witness who “required” an interpreter (in the sense that the witness did not understand some of what was put to her) is necessarily irrelevant, and therefore inadmissible. The breadth of that submission should not be accepted.

33. As I understood the argument, it was that any purported answer to a question which has not been understood must be non-responsive, and that a non-responsive answer must be irrelevant. The absoluteness of the first proposition is doubtful. A question might be partially understood and the answer may be responsive to that part. But even assuming that an answer is non-responsive, the second proposition (that the answer is irrelevant) does not necessarily follow. That is particularly so where a witness who speaks English well enough has difficulties in understanding a question. If the question is, “Was the traffic light orange when you entered the intersection?” but the witness understands it as “Was the traffic light red when you entered the intersection?”, the answer, “Yes, it was red when I entered the intersection” could hardly be said to be irrelevant. That is so, even though the apparent agreement with the proposition that the light was orange conveyed by the word “Yes” may require clarification.

34. Moreover, non-responsive answers may be relevant, even central, to submissions about the credibility or reliability of the witness, as occurred in this case. Let it be assumed that a witness would have been entitled under s 30 of the Evidence Act to give evidence through an interpreter for some parts of their evidence but not all of it, but no application for an interpreter was made. Any non-responsive answers might be because of difficulties of language, or might be because the witness was evasive, or both. But all the answers would be relevant for the purpose at least of submissions about credibility and reliability.

35. On the other hand, where a witness who lacks proficiency in English completely misunderstands a proposition put in cross-examination and gives a yes or no answer purporting to agree or disagree with the proposition, it is arguable that such evidence could not rationally affect the assessment of the probability of the existence of a fact in issue so as to be relevant within the meaning of ss 55 and 56 of the Evidence Act. Moreover, the danger that such evidence might be unfairly prejudicial or misleading or confusing would be high, and the probative value of such evidence, if any, would be low. In such a case there would be scope for the operation of the general discretion to exclude the evidence in s 135 of the Evidence Act. The fact that the witness misunderstood the question may only become apparent later, if at all. But it would be an extreme case in which the proper exercise of the discretion was to exclude the whole of the witness’s evidence.

36. It follows that the appellants’ submission (that any evidence given in answer to a question which the witness has misunderstood is necessarily inadmissible) should not be accepted in the blanket way in which it was made. The fact that a witness does not understand some of what is put to her does not mean that the answers she gives to those questions are necessarily irrelevant and therefore inadmissible; still less that all the witness’s evidence was inadmissible. It would be necessary to identify particular questions and answers in order to attempt to address the issue. Save for two examples, the appellants did not do so.

37. The first example arose towards the start of the cross-examination, when Ms Schmahl was being asked who made a handwritten amendment to par 1 of her affidavit. At first she answered, “It is my - my daughter was writing it. That’s my signature but my daughter was writing that then.” Tcpt, 4 March 2025, 25.50-26.1. There was then some confusion about whose handwriting it was, including an answer, “I don’t know what it means”: at 26.15. But the issue was clarified by further answer a few lines further on: “I was explaining to her on this she was writing it down then. Yeah”: at 26.48. The overall effect of that passage of transcript is to demonstrate that while Ms Schmahl had some difficulties of language, she understood the questions sufficiently to give adequate answers on which the primary judge could act. Ms Schmahl’s evidence was to the effect that she had told her daughter what amendment to make, that the handwriting recording the amendment was her daughter’s, and that the signature next to it was Ms Schmahl’s. Whether or not the primary judge accepted that evidence was a matter for her Honour; it does not raise a question of law.

38. The second example was at the very end of the cross-examination, where the following took place:

“Q. Madam, what I want to put to you—

A. Yes.

Q. – is that the Hiace van was in the lane closest to the centre, not in the turning bay, but in the lane next to the turning bay and that you didn’t see it before the accident happened.

A. When it’s red, he had the red lights. He should stop or not going into my car with power he had. I think he was on a phone or something like that. Could be happened. Other people were stopped and he didn’t stop.”

Tcpt, 4 March 2025, 40.8-16.

39. The answer was plainly non-responsive. But it is not at all clear that that was because of any difficulty in understanding English. The question had four components which were not entirely consistent: Hiace in lane closest to the centre; Hiace not in turning bay; Hiace in lane next to turning bay; witness did not see Hiace before accident. Rather than responding to any of those components, Ms Schmahl chose to put the gist of her side of the story (that Mr Foulis failed to stop at a red light), plus a speculative explanation (Mr Foulis may have been using his phone). That evidence supported counsel’s submission set out above:

“… your Honour, it was in the nature of the witness. I’m not sure if it would have been that different with an interpreter, with respect. She was intent on saying what she wanted to say.”

40. But whether the primary judge was persuaded by the appellants’ submission (i.e., that it followed that Ms Schmahl’s evidence was unreliable) was a matter of fact-finding for her Honour which stands well outside an appeal under s 39(1) of the Local Court Act.

41. In the result, even if someone at the hearing had sought to invoke s 30 or r 31.58, and even if her Honour had wrongfully refused to permit Ms Schmahl to give evidence through an interpreter, and even if it were open to the appellants to take the point for the first time on appeal, it would not necessarily follow that any evidence Ms Schmahl gave in English was irrelevant or inadmissible. There is no basis on which to conclude that those parts of the evidence of Ms Schmahl on which the primary judge relied (see above) were inadmissible. Still less is there a basis to reject the whole of Ms Schmahl’s evidence given in English, and remit the matter so that she could give it a second time, through an interpreter; cf. Tcpt, 2 October 2025, 9.28, 9.39.

42. Eighthly, the appellants accepted that the primary judge’s reference to not drawing “any adverse inferences about [Ms Schmahl’s] evidence” was not directed to anything in the nature of the inference drawn in Commercial Union As**surance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 per Handley JA (Kirby P agreeing). Instead, as is particularly clear in the context of the sentence that precedes it, the point her Honour was making was that she attributed any apparent non-responsiveness to Ms Schmahl’s difficulties of language, rather than to evasiveness or unreliability. That was in the context that the thrust of the appellants’ challenge to Ms Schmahl’s evidence at the hearing below was that her unresponsiveness demonstrated an absence of reliability. The adverse inferences which her Honour declined to draw were thus as to the witness’s reliability.

43. Ninthly, as noted above, s 39(1) of the Local Court Act confers a right of appeal “but only on a question of law”. The appellants have not sought leave pursuant to s 40(1) to appeal “on a ground that involves a question of mixed law and fact”.

Ground 3A: was the evidence inadmissible?

44. It is convenient to address the grounds of appeal that were pressed in the same sequence as the appellants in their written submissions. Ground 3A is:

“The learned magistrate erred in law by admitting and, further or in the alternative, by not excluding the first defendant’s affidavit evidence and, further or in the alternative, her oral evidence, which decision occasioned a substantial miscarriage of justice as that evidence was not interpreted and the learned magistrate found that the defendant required an interpreter and clearly struggled with understanding some matters and some of what was put to her, further or in the alternative, the learned magistrate decided not to draw any adverse inference against the defendant for the same reasons and, further or in the alternative, for the preceding reasons the plaintiff could not adequately test and challenge the defendant’s evidence”.

45. To the extent that this ground complains that the primary judge erred in law by admitting or not excluding some or all of Ms Schmahl’s evidence (whether written or oral) on the ground that “that evidence was not interpreted and the learned Magistrate found that the defendant required an interpreter”, it should be rejected for the following reasons.

46. As explained above, on a proper reading of the primary judge’s reasons, given orally, her reference to an interpreter being “required” should be understood as saying no more than that an interpreter would have been preferable for at least some of the evidence. Her Honour did not address s 30 of the Evidence Act or UCPR, r 31.58 at all.

47. However, let it be assumed that, contrary to what occurred, her Honour should be taken to have found for the purposes of s 30 of the Evidence Act (or the corresponding criteria in r 31.58) that Ms Schmahl could not “understand and speak the English language sufficiently to enable [her] to understand, and to make an adequate reply to, questions that may be put”, such that she should have been permitted to give some or all of her evidence through an interpreter. In that situation:

(a) neither s 30 nor r 31.58 themselves required that the evidence be given through an interpreter; (b) nobody at the hearing asked for Ms Schmahl to be permitted to give evidence through an interpreter — to the contrary, counsel for the appellants submitted that “I’m not sure if it would have been that different with an interpreter, with respect”; (c) even if somebody had asked at the hearing for Ms Schmahl to give evidence through an interpreter, and her Honour had refused, in error, to permit Ms Schmahl to do so, the consequence would not be automatically to render the evidence that she gave in English inadmissible; and (d) in the absence of objection or an application that Ms Schmahl's evidence in English be excluded, there was no reason for the primary judge to do so.

3. A further difficulty with the appellants’ argument is that it is not directed to showing that any particular evidence “required” the use of an interpreter. The argument is not anchored in any particular question asked of, or any particular answer given by, Ms Schmahl, other than the two examples discussed above. Those examples demonstrate that the blanket argument advanced for the appellants (that the consequence of the primary judge’s “finding” that Ms Schmahl did not understand some questions is that none of her evidence should have been admitted) must be rejected.

4. The appellants also submit that Ms Schmahl’s written evidence was inadmissible because it had not been translated. The appellants cited UCPR, r 35.7 and s 27A of the Oaths Act 1900 (NSW). Neither provision assists the appellants. Rule 35.7 is concerned with affidavits made by blind or illiterate persons. Reading “illiterate” as meaning “unable to read English”, Ms Schmahl meets neither description. There is no suggestion that she is blind, and the evidence is that she can read English. Section 27A of the Oaths Act is also inapplicable: (1) Ms Schmahl was not “unable to read written English”; (2) that question was in any event a matter for “the person before whom [the] affidavit [was] made”, who must certify certain matters in such cases; and (3) the section does not provide that the consequence of failure to observe its terms is inadmissibility. (Nor is the certification regime in UCPR, r 31.62 applicable: Ms Schmahl’s written evidence was not translated or interpreted into English.)

5. The appellants submit that the reception of inadmissible evidence gives an unsuccessful party a prima facie right to a new trial (or in this case a remitter for further evidence to be given through an interpreter: Tcpt, 2 October 2025, 9.34), which is displaced only if the evidence could have had no effect on the outcome, citing Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2 and Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1. They also cited Bray v Ford [1896] AC 44 at 49 for the proposition in the speech of Lord Watson that “[e]very party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that tribunal.”

6. Both the premise and the conclusion of the argument that the appellants are entitled to a remitter to the Local Court for Ms Schmahl to give evidence through an interpreter should be rejected. Ms Schmahl’s evidence was not inadmissible. Even if it had been, the asserted consequence (a whole new trial or remitter) would not follow in this case. Piddington, Balenzuela and Bray were civil jury cases. Even with respect to such cases, the law as stated in Balenzuela has been subject to refinement: see, e.g., Tory v Megna [2007] NSWCA 13 at [36], [41]-[46] per Spigelman CJ (Beazley and Bryson JJA agreeing). But this was not a jury case. This Court’s powers on an appeal from the Local Court are stated in s 41(1) of the Local Court Act*.* The practical operation of s 41(1) is subject to limitations arising out of the scope of the appeal under s 39(1) — in particular, this Court’s inability to make primary findings of fact on a s 39(1) appeal: Rose v Tunstall [2018] NSWCA 241 at [26]-[32]. But s 41(1) does empower this Court to vary the terms of the judgment or order under appeal where appropriate. The logic of the appellants’ position (that Ms Schmahl’s evidence was wholly inadmissible) would favour either the entry of judgments in favour of the appellants in this Court (i.e., because there was arguably no evidence properly admitted to support the finding of negligence), or a remitter to the Local Court to determine the matter (on the footing that none of Ms Schmahl’s evidence was properly admitted), rather than a remitter to have Ms Schmahl give evidence through an interpreter. But the unfairness of that course to Ms Schmahl, when the point was never taken below, demonstrates why the appellants should not now be permitted to raise the point on appeal.

7. To the extent that this ground complains that the primary judge erred in law by deciding not to draw any adverse inference against Ms Schmahl in circumstances where her Honour “found that the defendant required an interpreter and clearly struggled with understanding some matters and some of what was put to her”, that does not raise a question of law. What her Honour made of the evidence that she heard was a matter of fact-finding.

8. In any event, the approach her Honour took was orthodox. It is common for witnesses who give evidence in English as a second (or third or more) language to have difficulties in understanding and answering questions, and for judges to take that into account as explaining what might otherwise be seen as non-responsive or evasive evidence. It is also common for witnesses who are native speakers of English to have difficulties in understanding and answering questions for many different reasons — the stresses of the courtroom setting, the unfamiliar linguistic precision demanded of witnesses, the cross-examiner’s own struggles to bring clarity to the questions, and so on — and for judges to take that into account in the same way. Approaching this ground of appeal at the level of generality at which it was formulated, there was no error in her Honour’s approach.

9. To the extent that this ground complains that the primary judge erred in law because “for the preceding reasons the plaintiff could not adequately test and challenge the defendant’s evidence”, it is not clear what question of law the ground seeks to raise. Questions of procedural fairness are addressed below in relation to Ground 2. But it should not be accepted that the appellants could not test or challenge Ms Schmahl’s evidence. Taking the primary judge’s “findings” at their highest, she considered that Ms Schmahl “clearly struggled with understanding some matters and some of what was put to her”. Her Honour did not find that Ms Schmahl had no understanding of the questions put to her. The primary judge did not find, in the language of s 30, that Ms Schmahl could not “understand and speak the English language sufficiently to enable [her] to understand, and to make an adequate reply to, questions that may be put”. On that basis, counsel for the appellants was able to cross-examine Ms Schmahl, and to make submissions about her answers, and did so.

10. The appellants also submit that her Honour’s “findings” (being that an interpreter was “required”; that Ms Schmahl clearly struggled with understanding some matters; and that she did not understand some of what was put to her) “are consistent with” various matters. The appellants rely on the fact that Ms Schmahl did not realise there was a serious error in both her statement of cross-claim and her affidavit (as to Mr Foulis’ having turned right across her path, when in fact it was Ms Schmahl who had been turning while Mr Foulis was crossing the intersection). The appellants embrace Ms Schmahl’s evidence at par 8 of her witness statement (apparently in explanation of the errors): “English is my second language, and I sometimes have a miscomprehension of English, causing me to misunderstand English words or sentences.”

11. Errors of that kind do not themselves establish that the regimes in either s 30 of the Evidence Act or UCPR, r 31.58 were engaged; still less do they do so in light of the other evidence about Ms Schmahl’s extensive use of English. But none of that is to the point: whether her Honour’s “findings” were well made on the evidence is beyond the scope of an appeal “on a question of law”. Those findings are not challenged, and cannot be challenged pursuant to s 39(1). If anything, the matters to which the appellants point show that they had a basis for the attack they made on the reliability of Ms Schmahl’s evidence given in English. The primary judge rejected that attack. That is a complaint about her Honour’s findings as to the facts, not a question of law.

12. This ground is not made out.

Ground 2: procedural fairness

55. The failure to permit a witness to give evidence through an interpreter might give rise to a denial of procedural fairness, in particular, to the party calling the witness: see, Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 80G-81G per Mahoney JA. But no part of the present appeal is a complaint that the primary judge failed to permit Ms Schmahl to give evidence through an interpreter. No such application was made.

56. Ground 2 is instead a different kind of complaint about procedural fairness:

“The learned magistrate erred in law by failing to accord the plaintiffs procedural fairness in failing to grant the plaintiffs an opportunity to be heard at all, or in the alternative, adequately, concerning the learned magistrate’s satisfaction that a witness, the defendant, required an interpreter and clearly struggled with understanding some matters and some of what was put to her and, further or in the alternative, that no adverse inference should be found against the defendant for that reason”.

57. This ground proceeds from a false implied premise as to what the primary judge was “satisfied” about. Her Honour did not determine that an interpreter was “required” in the sense that the regimes in either s 30 of the Evidence Act or UCPR, r 31.58 were engaged. That being so, the ground of appeal fails at the threshold.

58. Proceeding from that implied premise, the appellants submit that “[a]t the time when the learned magistrate determined that the defendant required an interpreter, or at least prior to delivering judgment, her Honour ought to have raised that matter with the parties and allowed the plaintiff the opportunity to make submissions about it”: Plaintiffs’ Outline at par 20. If the “matter” is whether Ms Schmahl should give (or should have given) her evidence through an interpreter, it is not clear what submission the appellants submit they were deprived of the opportunity of making about that question. Consistently with the submissions made in closing addresses referred to at [21] above, including that Ms Schmahl had “a reasonable command of English” and that “I’m not sure if it would have been that different with an interpreter”, the appellants might have submitted that Ms Schmahl should give her evidence in English (or, after the event, that it was appropriate that she had done so). If so, that is what in fact happened. If the appellants instead might have wished to submit that an interpreter should be (or should have been) used, it was always open to them to raise that matter at the hearing, but they did not.

59. The appellants complain that her Honour “should have given the parties notice of her intention not to draw any adverse inferences or credit findings against the witness who required an interpreter as otherwise that witness, who was also a party to the proceedings, was immune from challenge, at least when it came to credibility”: Plaintiffs’ Outline at par 21. There is no substance to a complaint of this kind. Procedural fairness does not generally require a judge to give the parties notice of the judge’s provisional views about matters that are in issue, or about the reasons for those provisional views. And in a case such as the present, in which the court was called on to choose between competing versions of events, whether the witness’s evidence should be accepted was plainly in issue.

60. To the extent that this ground should otherwise be understood as asserting that the primary judge in some way denied the appellants an opportunity to make submissions about Ms Schmahl’s evidence, or about the way in which she gave it, or about the inferences to be drawn from those matters (including as to her reliability), it has no basis. Her Honour’s reason for not drawing an adverse inference as to Ms Schmahl’s reliability based on her non-responsiveness was not that Ms Schmahl had “required” an interpreter in the sense that in a counterfactual world the witness might have given evidence through an interpreter. It was that the non-responsiveness of the evidence that Ms Schmahl had in fact given in English was explained by language barriers: “I did not find her to be unreliable or argumentative. In fact, my impression was, she simply was not understanding some of what was put to her and I have not drawn any adverse inferences about her evidence.”

61. Part of the context in which her Honour reached that conclusion was the exchange in the passage from counsel’s address quoted above (Tcpt, 5 March 2025, 57.3-33). Counsel for the appellants had forsworn any attack on Ms Schmahl’s honesty: “I wouldn’t put it anywhere as near as the defendant was trying to mislead your Honour in any way”. The submission made instead was: “but she was an unreliable witness”. That submission was developed as follows: “but she was being very non-responsive and even with a reasonable command of English, she was intent on telling her story and not answering the question. To that extent, it was unreliable because it was non-responsive”. It was always open to her Honour to reject that submission on the basis that Ms Schmahl’s difficulties of language, rather than any unreliability or evasiveness, explained the way in which she had given her evidence (in particular, to the extent it was non-responsive). It was not necessary for her Honour to raise Ms Schmahl's difficulties of language with counsel. But her Honour in fact did so, when she responded to counsel’s submission that the evidence was unreliable: “I think there was definitely a language barrier there”. And in that context her Honour also said, “it’s worth getting an interpreter” and “I think it’s a lesson about getting interpreters where English isn’t their first language”. To which counsel responded that “it [the unresponsiveness] was in the nature of the witness. I’m not sure if it would have been that different with an interpreter, with respect”. The parties were plainly on notice of the basis on which her Honour was considering not drawing “adverse inferences or credit findings against the witness”, and the appellants made submissions accordingly.

62. The appellants’ real complaint then amounts to this: that her Honour rejected their submission that Ms Schmahl’s evidence was unreliable because it was non-responsive. That was a question of fact not law.

63. To the extent that the complaint is that Ms Schmahl’s evidence was “immune from challenge” (which was only faintly pressed, if at all: Tcpt, 2 October 2025,12.48), that misunderstands the primary judge’s reasoning. Her Honour did not reason that the witness was “immune” to challenge; instead, she found that the challenge mounted by the appellants (unreliable because non-responsive) failed on its merits.

64. The appellants submit that they “were denied procedural fairness as the plaintiff could not adequately test and challenge the defendant’s evidence”. They cite HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [17] per Kiefel CJ, Bell and Keane JJ, and [64] per Gordon J. The cited passages are authority for the principle that a party must be “able to test and respond to the evidence on which an order is sought to be made”: at [17]. But those passages do not support the submission that in the circumstances of this case that opportunity was denied. The appellants do not identify the specific means, that was denied to them, by which they could have tested or challenged Ms Schmahl's evidence, other than to say that her evidence should have been interpreted. But they did not raise that issue below, in circumstances where their counsel submitted to the primary judge “I’m not sure if it would have been that different with an interpreter”. The appellants cross-examined Ms Schmahl and made submissions about her evidence, including its reliability, in the exchange discussed above. The appellants’ submissions were rejected on their merits on the evidence. There was no denial of procedural fairness.

65. This ground is not made out.

Ground 3: the weight of evidence

66. Ground 3 is:

“The learned magistrate erred in law by failing to give proper weight, in giving too much weight to the evidence of a witness, the defendant, who the learned magistrate found required an interpreter and clearly struggled with understanding some matters and some of what was put to her, so the learned magistrate would not draw any adverse inference against the defendant, where to do so affected the assessment of the negligence of the second plaintiff and the defendant”.

67. This ground does not on its face raise a question of law. The weight to be given to the evidence was a matter of fact-finding for the primary judge. The fact that the evidence was relevant to an assessment of the alleged negligence of Mr Foulis and Ms Schmahl (itself not “a question of law”) does not relieve the appellants of the difficulty that the weight to be given to evidence does not raise a question of law.

68. However, the appellants go further, submitting that all the evidence given by Ms Schmahl was inadmissible, and therefore should have been given no weight. They submit that there was thus no evidence to support her Honour’s finding of negligence, which would be an error of law not fact. It suffices to identify the flaw in the premise of this argument. As explained above, it has not been shown that any particular part of Ms Schmahl’s evidence, still less the whole, was inadmissible.

69. This ground is not made out.

Conclusion and orders

70. The amended summons is dismissed with costs.

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