Sinanovic v Bone [2022] NSWSC 1474 | Case summary

Hearing of Local Court Proceedings

The proceedings in the Local Court commenced on Tuesday 9 November 2021 ("Day 1"). They were adjourned and resumed on Friday 11 March 2022 ("Day 2"). It was on that day at the conclusion of the hearing that Hosking LCM delivered her ex tempore judgment.
On both days in the Local Court, Ms Bone was represented by counsel and an instructing solicitor. Mr Sinanovic, as I remarked earlier, was unrepresented and had the assistance of Ms Sinanaj in the conduct of his case.
Shortly after the commencement of his proceedings, Mr Sinanovic asked the Court to permit Ms Sinanaj to assist him and act as his advocate. Ms Bone's counsel and solicitor did not raise any objection.
The Magistrate indicated that she did not have any problem with that arrangement, and then the following exchange occurred: "Her Honour: Is it intended that you are going to give evidence in your client's case? In your ex-husband's case? He can't be in the room if you're going to be giving evidence. Ms Sinanaj: Yes, I know, that's going to be a bit difficult."
In light of this plainly erroneous, and somewhat startling statement from the Magistrate, counsel for Ms Bone attempted appropriately at that point to assist the Magistrate. He took the Magistrate to Ms Sinanaj's affidavit and indicated that whilst he might have "… some questions in cross-examination for her, depending upon what [Mr Sinanovic] says …", he did not have any objection to her remaining present. Counsel also made it plain that he would only wish to ask Ms Sinanaj some questions "… if something falls out of [Mr Sinanovic's] cross-examination".
There was then a further discussion about what counsel may or may not be able to cross-examine Ms Sinanaj about, and the Magistrate made it plain to Ms Sinanaj that she would not be entitled give any further evidence about other events in addition to those covered in her affidavit.
Ms Bone was then called to give evidence and was cross-examined by Ms Sinanaj on behalf of Mr Sinanovic. Ms Bone's solicitor, who had been present whilst Ms Bone gave her evidence, was then called to give evidence and an affidavit which he had sworn was relied upon. He was cross‑examined briefly. During this evidence, Ms Bone was not asked, quite correctly, to leave the room.
At about 2.40pm on Day 1, counsel for Ms Bone then indicated that Ms Bone's case was closed. Counsel drew attention to the time and said that, whilst he was happy to start, he did not think that he would finish cross-examination of Mr Sinanovic prior to the end of that day. The Magistrate noted that but said that she would not adjourn at that stage.
The following exchange then occurred: "Her Honour: … Is Mr Sinanovic your first witness? Ms Sinanaj: Yes, your Honour. Her Honour: OK, so - now I note here you've been translating. … you can't do that in the process of evidence and if a translator's required, then you should have had one here. Ms Sinanaj: I think - it's just 'cause he can't hear that well. I'm just trying to make him understand because - Her Honour: Yes so you won't be able to do that. If we need - if a translator's required then what we should do is adjourn the proceedings and you'll have to have a translator here 'cause in civil you have to provide your own, I think. You'll have to have a translator here on the next occasion otherwise we can [sic: can't] proceed. What did you want to do? Ms Sinanaj: I'll ask Mr Sinanovic. [Speaks in Italian to Mr Sinanovic] Just that if we can speak slowly and a bit loudly for him I think might be - it would assist him. Her Honour: And Sir, at any stage, you stand up, sit down, move your chair, do whatever makes you comfortable. Do you wish to take an oath or affirm? Ms Sinanaj: See - Her Honour: Well it does cause me some concerns. Sir, sir, you are going to have to be able to understand us or we can't proceed and we'll have to come back again with an interpreter, okay? So your ex-wife can't do every role, she can't be your support person, your advocate and your interpreter. … Her Honour: Okay? So, will you take an oath as in to God in relation to telling the truth or affirm? Mr Sinanovic: I'll go for oath. Her Honour: Sir, no, you have to answer in English. Ms Sinanaj: You have to explain to her in English. Her Honour: What's your position, Mr Notley? Mr Notley: Your Honour, this is going to cause all sorts of difficulties. I think if - I'm going to be challenging [Mr Sinanovic]'s credibility quite severely in this cross-examination … Her Honour: And the whole time there's been translation going on. Mr Notley: Yes, and I don't want it said later that when I ask your Honour - I will be asking your Honour not to accept [Mr Sinanovic]'s evidence as a question of credit. I don't it want to be said in some other place, if I can put it this way, or in submissions, the closing submissions that [Mr Sinanovic] didn't properly understand the questions I was putting. Her Honour: What language is it? Ms Sinanaj: Italian. Her Honour: Italian. I think the best course is that we are going to have to get another date to continue and you're going to have to have an interpreter here. Now that will be at your cost. Ms Sinanaj: OK, can I explain that to him? Her Honour: Yes. Ms Sinanaj: [speaks with Mr Sinanovic in Italian] Your Honour, could we - 'cause we don't want to delay the matter, could we try? Her Honour: Madam - Ms Sinanaj: Well he was thinking - Her Honour: What we can't do - when you say can we try, we can't because every single word that has been said and every time you've sought instructions, you've done it in Italian. …"
It is clear from this part of the transcript that in the conversations between Mr Sinanovic and Ms Sinanaj during the course of the proceeding, the Italian language was being used. However, Ms Sinanaj noted that these were private conversations. She said that the fact that those conversations were in Italian was irrelevant to the giving of evidence by Mr Sinanovic in English. She also drew attention to the fact that Mr Sinanovic had a hearing difficulty.
The parties were referred to the Chief Magistrate's Office to obtain another date. Further discussion occurred about the amount of time needed on the next occasion. Counsel indicated that he thought he would be somewhere between one to two hours in cross-examination, and that there would then be submissions. Attention to the principal issues in dispute and an estimate of four hours to one day was agreed upon. It was noted that on the next occasion there would only be one witness. That was obviously a reference to Mr Sinanovic.
After a short adjournment, the matter resumed, and the following exchange took place: "Mr Notley: Thank you, your Honour, I was about to - I'm sorry to interrupt, your Honour, I was going to say if your Honour could perhaps make a direction that [Mr Sinanovic] arrange for an independent accredited interpreter on the next occasion. Her Honour: Yes. So it was the 11th March did you say? 11th March 2022? So one, [Mr Sinanovic] is to ensure that a properly - a court-accredited translator is present for the course of [Mr Sinanovic]'s evidence. So just so you know, that's an order of the court so if for example we get here and there's not one here, unless there's a good reason and you can establish that all effort was made to get one here, then there could be cost implications of not making those arrangements."
The Magistrate did not invite any submissions from Mr Sinanovic in reply to Mr Notley.
Discussions continued about access to subpoenaed documents. Orders were made about such access.
The proceedings then resumed on Day 2. At the commencement, counsel for Ms Bone informed her Honour that what remained was that he had to cross‑examine Mr Sinanovic. He then said this: "Your Honour might recall Mr Sinanovic went to get into the witness box and you and I were both somewhat concerned by the fact [that] his grasp of English seemed not the best."
Because Mr Sinanovic and Ms Sinanaj were not present when that exchange took place, the Magistrate adjourned the hearing until they arrived. It was obvious that there was no accredited interpreter present.
Upon their arrival there was further discussion about procedural issues relating to subpoenaed documents. Those procedural issues related to Ms Sinanaj, who was not recorded in the Court's records as appearing in the matter, getting electronic access to documents produced on subpoena.
After some discussion about those issues, the following exchange took place: "Her Honour: Now what I asked you to do on the last occasion is to have an independent interpreter here and you promised me that you would. Ms Sinanaj: I did do enquiries, your Honour, they're quite expensive. For the amount it was a bit difficult financially and Mr Sinanovic doesn't fall within - what's that word? … Her Honour: Well madam, I'm going to proceed with the hearing today but I'm going - Ms Sinanaj: We're fine, your Honour - Her Honour: Madam, I think we discussed this last time. When I start speaking, you stop. It is a matter of professional courtesy, it's also my court. I asked specifically, and you assured me and gave an undertaking that someone would be here. I'm going to proceed today without an interpreter and I'm going to tell you that, to the extent that I can't trust the evidence that is being given because it is not appropriately interpreted by an independent party it will be to your client's detriment. To the extent that he can't give evidence because this is a court which operates in English he has been provided with an opportunity for months to arrange an interpreter today. The only reason we had to adjourn was for that, to the [Ms Bone]'s detriment in relation to coming back here today. … … Her Honour: So, to the extent that the evidence can't be given, and there's no evidence in your client's defence, that is your client's problem when procedural fairness has been awarded to him by giving him an adjournment and the opportunity for months to arrange an interpreter to be here today. So, I'm going to ask now for the parties to pick up where they left off and we'll see where we go."
There was then a reminder to the Bench that there was a Court Book containing the relevant documents. Counsel for Ms Bone drew the Magistrate's attention to the fact that Mr Sinanovic's affidavit was at Tab 9 in the bundle and noted that her Honour had not dealt with any of his objections to the affidavit. He then said this: "Mr Notley: Can I indicate this? If an interpreter had been here, I wouldn't have necessarily taken the objection [that] I am about to take and it may be that your Honour needs to hear some evidence potentially [unclear] … not sure that's entirely necessary from [Mr Sinanovic] first as to his ability to understand what I'm putting to him and also his ability to read and write English. His affidavit as your Honour will see does not have the usual certification at the end, that it has been translated to him in his native language and that he has understood it. There's not the usual interpreter certification. … Rather, there is an affidavit which has not been read of [sic] [Mr Sinanovic]'s representative, which your Honour might recall on the last occasion [Mr Sinanovic]'s representative was given the option of either appearing as a witness in the case or appearing as an advocate in the case. Her Honour: Yes. Mr Notley: Now that - the evidence in that affidavit seeks to go to her assistance in preparing the affidavit with him, but in my respectful submission, your Honour wouldn't allow that affidavit in. So I intend to take a global objection to the whole of the affidavit [of Mr Sinanovic] on the basis that there is no evidence that this particular affidavit was interpreted for [Mr Sinanovic] and that he actually understands what he has put his signature to. And I need to ask him some questions before I think your Honour deals with that objection. Her Honour: Yes."
At that point, the Magistrate directed Mr Sinanovic to enter the witness box. The Clerk of the Court administered an oath and Mr Sinanovic sat down. Mr Notley, with the agreement of the Magistrate, asked Mr Sinanovic to identify himself and to give his address.
It seems that the course which was being followed was to take Mr Sinanovic's evidence on a voir dire. However, the purpose of the voir dire and the issue to which it related was not made clear.
It is necessary, in light of the submissions to this Court, to set out what then took place. The transcript records the following, which took place in English: "Mr Notley: … and you were in court - you were present in court on the last occasion when this matter was before the court? Is that right? Mr Sinanovic: Yes. Mr Notley: And did you have any difficulty understanding what was being said by the various people in the room such as her Honour or myself? Do you understand what I am saying to you now? Mr Sinanovic: Yes. Mr Notley: Right. Are you able to write in the English language? Mr Sinanovic: Sorry ? Mr Notley: Are you able to write in the English language? Can you write a letter in English? Mr Sinanovic: I cannot write and read English, but I can speak." (emphasis added)
Ms Sinanaj rose to say something but was informed that she needed to take an objection - which she did. She was asked what the objection was. Ms Sinanaj simply asked that Mr Notley "just speak slowly and clearly and a bit loudly because with this Parkinson's disease it has affected his hearing a bit".
The exchange in English continued with counsel in the following way: "Mr Notley: Sir, do you remember signing an affidavit for the purposes of these proceedings? Mr Sinanovic: Yes. Mr Notley: I see. Just one moment, your Honour. Her Honour: Yes. Mr Notley: Do you have a copy of the court book? … Sir, for the record, what I am showing you is a document which is behind Tab 9 of the court book and this is an affidavit which has your name on the top of it. Can you read anything on that page in front of you? Can you read the heading at the top of the page? Mr Sinanovic: What? The page to read? Mr Notley: Can you read anything on the page at all? Mr Sinanovic: I can see my signature. Mr Notley: Where can you see your signature? Mr Sinanovic: Just on the bottom. … Mr Notley: And do you know how this document was prepared? Mr Sinanovic: Yes. Mr Notley: Who prepared the document? Mr Sinanovic: She asked me questions and I answered, she prepared the affidavit and went and then [I] swore … Mr Notley: And so for the record I should just note that, sir, you're pointing to your representative here today which is your former wife - is that correct? Mr Sinanovic: Yes. Mr Notley: I see. Your Honour I have no further questions on this particular topic. …"
Mr Notley then went on, whilst Mr Sinanovic was seated in the witness box and before any re-examination was allowed of him by Ms Sinanaj, to commence a submission. He said this: "In my respectful submission, the evidence so far that the witness has given is that the only thing he can recognise on the page is his signature. The affidavit has not been prepared clearly by him, that's his evidence, it's been prepared by [Mr Sinanovic]'s representative. It hasn't been translated, there's not evidence that it's been translated to him by an independent translator and that he's understood the effect of the evidence that he's purporting to give in it and in my respectful submission, for those reasons your Honour would reject the evidence."
It is necessary to record that the submission ignored the statement which had been made by Mr Sinanovic in his evidence (and earlier in his defence), that he could not read or write English. That was the reason why the only thing on the affidavit, when it was shown to him, that he recognised was his signature. However, that statement was not referred to by Mr Notley in his submissions.
The Magistrate then turned to Ms Sinanaj and said "Yes, Madam". Ms Sinanaj responded "Your Honour, there is my affidavit that says I did read it to him". The Magistrate then told Ms Sinanaj that on the previous occasion she had ruled that that Ms Sinanaj could not be both an advocate and a witness in the proceedings and that, accordingly, her affidavit was not admissible because she had elected to be an advocate. Ms Sinanaj attempted to make a further submission but was told by the Magistrate that such submission was proper to be made at the end of the proceedings. She then asked if it was possible that she could ask some questions "… of the case …". The Magistrate acknowledged that question, but continued in the following way: "… if the affidavit evidence is not admissible because it has not been sworn in relation to - in accordance with the rules in relation to circumstances where Mr Sinanovic could possibly have, based on the evidence before me and the evidence he has just given in the box, have understood any aspect of this affidavit. So, the affidavit is inadmissible."
Ms Sinanaj protested. The Magistrate asked Mr Notley to identify the rule in accordance with which the affidavit had to be prepared. Initially, Mr Notley responded and drew attention to r 31.1 of the Uniform Civil Procedure Rules 2005 ("UCPR"). Rule 31.1 of the UCPR is directed to the manner of giving evidence at the trial.
The Magistrate asked about "the rule in relation to interpretation". Ultimately, Mr Notley identified the appropriate rule as r 31.62 of the UCPR. The Magistrate noted that rule and read it aloud. She then went on to say this: "Now, what I have before me is an affidavit purportedly signed by [Mr Sinanovic] and purportedly executed in the form of an affidavit. However, the evidence he has given is that he cannot read or write English so given that, this affidavit was not properly executed because he could not despite having signed to that effect, he could not have read the affidavit and understood its contents. … For that reason this evidence is wholly inadmissible. [Mr Sinanovic] has been given an opportunity of many months to correct this issue which arose first back in October. The issue was identified and a request was made that an interpreter be present on this occasion and that was the purpose for the adjournment. Given that and the fact that [Ms Bone] is entitled to be on notice of what [the] evidence is, there were orders for the exchange of primary evidence and [Ms Bone] is entitled to be on notice of what evidence is going to be brought in proceedings, I can't see that [Mr Sinanovic] can given [sic] evidence. And the fact [is] that any evidence he gives is tempered by the fact that he is not - his English is not adequate."
The Magistrate did not identify or refer to r 35.7 of the UCPR at this or any other time. Mr Notley did not draw that rule to her Honour's attention.
After a further exchange with Mr Notley, the Magistrate said: "Given that, I order that the defendant's evidence is inadmissible. Sir, you can step down."
As he did so, Mr Sinanovic asked if he could say something. He said: "For the interpreter, I don't need it because they get you confused. For the reading paper, the barrister can read it to me, point to the paragraph, whatever it is and I can respond because there are 67 different dialects and then when you point to the application they sent me Calabrian language last time. So, I like to, for the document purpose, legal barrister can read it and question and the case can go on."
The Magistrate responded: "The problem is, sir, [Ms Bone] is entitled to know what case they are going to meet. Your obligation was to serve your evidence many, many, many months ago. The evidence you have served, I can't admit it in Court because it hasn't been properly interpreted. It is not your evidence, you have not prepared this. These are not your words, you cannot even read the document. … I appreciate your comments in relation to interpreter services, but I am dealing with the rules of this Court and the rules of this Court require the affidavit, for someone for whom they cannot read and write English, the affidavit is required to be translated, there is required to be evidence of that translation. This evidence is inadmissible because you have signed something that you cannot read. So, I'm going to ask you to step down …" (emphasis added)
The matter was stood down while the Magistrate attended to a criminal case.
Upon resumption, Ms Sinanaj attempted to raise with the Magistrate what the position was about Mr Sinanovic's understanding, but the Magistrate declined to hear her saying "I'm not going to let you give evince [sic] from the Bar Table in relation to what happened".
The Magistrate went on to say: "Questions were asked by the barrister for [Ms Bone] as to whether this document, which has been signed in the form that I would expect every person who can read and write a document in English to sign. It is misleading the Court and [Ms Bone] to have served a document signed by this gentleman which … suggests that it was his document and he could read it. I am not taking issue with the fact that you have misled the Court and that you have misled [Ms Bone], but I am not letting that evidence in and I'm not letting you make submissions from the bar table as to what happened in circumstances where on the last occasion you were given a very clear option as to whether you would be a witness in the case, in which case you could attest to what you had done in the process of swearing the affidavit, or whether you would be an advocate. You elected to be an advocate. You do not get to give evidence from the bar table or the witness box."
After a short adjournment, the matter proceeded. The Magistrate took submissions from counsel for Ms Bone and from Ms Sinanaj on behalf of Mr Sinanovic.
At the conclusion of submissions, after a brief period, her Honour delivered her judgment orally. On that day her Honour made the following orders: "Judgment: HAKIJA SINANOVIC, First Defendant, is to pay LUDAN BONE, First Plaintiff, the sum of Claim amount: $46,532.20 Interest claimed: $3,032.02 Filing fees: $0.00 Service fee: $0.00 Solicitors fees: $0.00 Other costs: $0.00 Total: $49,564.22 Judgment for the plaintiff. Interest to be calculated under s 100 of the Civil Procedure Act 2005 from 14/8/2020. Defendant is to pay the Plaintiff's costs on the ordinary basis."

Discernment

The proceedings on both days, but particularly on Day 2, involved the following elements of inadequate procedure: 1. a misunderstanding and consequential erroneous statement by the Magistrate about the ability of a lay person acting as an advocate - who is not subject to the professional rules that bind barristers - to give evidence, and the entitlement of a named party to be in the courtroom when such evidence was to be given; 2. an assumption that because private conversations (at the bar table) were occurring in the Italian language, the only available conclusion was that Mr Sinanovic could not communicate in the English language, and therefore that he required an interpreter for the purpose of his oral evidence, and his affidavit; 3. a failure to recognise or pay attention to the fact that Mr Sinanovic had in fact given evidence in English and had been able to be understood by those present in Court; 4. an erroneous conclusion that because he had not personally written or personally prepared his affidavit, the version in the affidavit was not Mr Sinanovic's account of the events relevant to the proceedings. This conclusion was contrary to Mr Sinanovic's evidence that answers he had given to questions had been written down and formed part of the affidavit. As well, he had sworn to the truth of its contents; 5. a failure to ask about the extent of the hearing difficulty of Mr Sinanovic and whether there was any available technological or other assistance which could have remedied, either wholly or partly, that hearing difficulty; 6. a failure to correctly address the formal requirements for a person who is unable to speak or write English, to execute (and then rely upon) an affidavit: see r 35.7 of the UCPR and also r 35.1 of the UCPR which allows leave to be granted to use an affidavit which is not in proper form; 7. an erroneous statement made by the Magistrate about what had previously occurred with respect to the dual role of Ms Sinanaj as both a witness and a lay advocate; and 8. an erroneous rejection of the evidence sought to be put before the Court by Mr Sinanovic.
These features alone demonstrate that there was a complete failure of procedural fairness accorded to Mr Sinanovic in the hearing in the Local Court. Such a failure to accord procedural fairness is an error of law of a kind which can be dealt with by this Court on appeal.
As can be observed from the inadequacies identified above, there were two fundamental problems. The first was that the provisions of the UCPR, the application of which can be dispensed with or varied so as to meet the exigencies of the occasion, were used not as the tools to enable a procedurally fair hearing, but rather, in a way, ensured that there was a procedurally unfair hearing.
Secondly, the features also demonstrate a failure on the part of the presiding Magistrate, and counsel for Ms Bone, to understand the difficulties Mr Sinanovic presented with. In the first place, he was hard of hearing because of a medical condition. Accordingly, that disability needed to be addressed. Secondly, he was illiterate, that is, he could not read or write in the English language. It was never established that he could read or write in any language. Thirdly, he was fluent in oral spoken English, although, because it was his second language, there were idiosyncrasies in his speech. In order for Mr Sinanovic to have the opportunity to present his case, some patience and flexibility was required. Neither was shown.
What this appeal demonstrated was that the hearing in the Local Court proceeded without attention to procedural fairness and, as a consequence, was determined only on part of the available, admissible evidence.
In those circumstances, I formed the view that due to the breach of procedural fairness, the matter should be re-heard before a differently constituted bench of the Local Court. It was for these reasons that, when the matter was heard, I made the orders to which I have earlier referred.

Sinanovic v Bone

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Cited By (1)