Civil Trials Bench Book — Preliminary

Over 300 languages are spoken in Australian households, and one fifth of Australians speak a language other than English at home according to the 2016 Census.^[1] This means judicial officers will encounter litigants and witnesses who will require the assistance of an interpreter both in the preparation of evidence such as affidavits and to give their evidence in court. In this context “languages” includes Auslan and other methods of communication by deaf or mute persons. “Interpreting” refers to the spoken word and “translating” refers to written text.

Interpreters have a part to play in the preparation of affidavits relating to oral communications in a foreign language. It is not uncommon to have an affidavit sworn or affirmed by a deponent who is competent in English and a foreign language concerning an oral communication in the foreign language. In the affidavit, expressed in English, the deponent asserts that particular conversations occurred and sets out an English translation of the alleged conversations.  In effect, the deponent is interpreting the words used in the foreign language without proper evidence as to the competence of the deponent to provide such an interpretation. More importantly, however, the words actually used in the foreign language may be critical. In such circumstances, it may be desirable for the court to have a competent independent interpreter to translate the words alleged to have been used in the foreign language: see Maria Coppola v New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda (No 2) [2019] NSWSC 948 at [16]–[25] and Sun v Chapman [2021] NSWSC 955 at [16]–[17].

Meeting the needs of culturally and linguistically diverse persons in legal proceedings raises numerous practical and legal issues. These include:

The Council of Chief Justices of Australia and New Zealand has approved the Judicial Council on Cultural Diversity’s (JCCD) Recommended National Standards for Working with Interpreters in Courts and Tribunals. The standards contain sections including “Plain English Strategies”, “Four-part test for determining need for an interpreter” and “What judicial officers can do to assist the interpreter”. The Recommended National Standards can be found on the JCCD website at https://jccd.org.au/publications/ (accessed 25 February 2022). See also an explanatory article in the Judicial Officers’ Bulletin: S Olbrich, “Recommended National Standards for working with interpreters in courts and tribunals” (2018) 30 JOB 36.

An Addendum to the Recommended National Standards for Working with Interpreters in Courts and Tribunals has been published.

Information on working with interpreters can also be found in the Equality before the Law Bench Book at [3.3].

The Uniform Civil Procedure Rules were amended on 8 November 2019 to insert Pt 31, Div 3 (r 31.55–31.64). This provides for rules concerning interpreters based on the JCCD’s Model Rules set out in the Recommended National Standards for Working with Interpreters in Courts and Tribunals. The rules apply in all NSW civil proceedings. The application of the Evidence Act 1995 is unaffected by the amendments.

The amended rules also provide for the Court Interpreters’ Code of Conduct at Sch 7A of the UCPR.

Practice Note SC Gen 21 — Interpreters in Civil Proceedings commenced operation on 4 March 2020 and applies to all civil proceedings commenced after its commencement and to any existing proceedings which the court directs should be subject to the Practice Note, in whole or in part. This Practice Note implements and applies the National Standards.

Practice Notes