Sinanovic v Bone

1. [1]

   On 8 April 2022, Hakija Sinanovic as plaintiff commenced proceedings by filing a Summons seeking leave to appeal, and to appeal from, a decision of Hosking LCM which was delivered orally on 11 March 2022 in the Local Court. Ms Ludan Bone, the defendant in these proceedings, was the plaintiff in the proceedings in the Local Court.

2. [2]

   Because there is potential for confusion about which party is best described as the plaintiff and which as the defendant, which will depend upon whether reference is being made to proceedings in this Court or the Local Court, it will be convenient to refer to the parties by their names.

3. [3]

   These proceedings were heard on 26 October 2022. At the conclusion of the proceedings, I made the following orders:

   1. (1)

      To the extent necessary, grant leave to appeal.

   2. (2)

      The judgment and orders of the Local Court made on 11 March 2022 are set aside.

   3. (3)

      Direct that proceedings be remitted to the Local Court for hearing by a differently constituted Court.

   4. (4)

      Order the defendant, Ms Bone, to pay the plaintiff, Mr Sinanovic’s, costs of these proceedings in the Supreme Court.

4. [4]

   I indicated that I would deliver my reasons in due course. These are my reasons for that decision.

Local Court Proceedings

1. [5]

   Ms Bone’s proceedings in the Local Court claimed a money judgment based upon a written Residential Tenancy Agreement (“RTA”) in which she, as landlord, leased to Mr Sinanovic, as tenant, identified premises. She claimed that the RTA was terminated and that she was entitled to a sum of money totalling almost $53,000 comprised of unpaid rent, an unpaid occupation fee and about $6,000 by way of cleaning and remediation costs at the end of the lease.

2. [6]

   Mr Sinanovic filed a Defence in which he put in issue the existence and terms of the RTA including the claimed rental sum, the unpaid occupation fee and the necessity for the cleaning and maintenance that the RTA relied upon.

3. [7]

   Of interest to proceedings in this Court, Mr Sinanovic pleaded the following in his Defence:

4. [8]

   Mr Sinanovic did not, at the time of filing of his Defence, nor at any time during the proceedings in either the Local Court or this Court, instruct any lawyers to appear for him. Rather, he asked and was granted leave for his former wife, Ms Maria Sinanaj – who held his Power of Attorney – to appear for him. Leave was granted in the Local Court for her to do so. That leave was also granted in this Court.

5. [9]

   As required by directions of the Local Court, the parties filed affidavit evidence in advance of the hearing.

6. [10]

   Mr Sinanovic filed and served an affidavit which was dated 1 October 2021. In that affidavit, which extended over 13 pages and had 14 annexures, he set out his account of the dealings between he and Ms Bone, and her estate agents, with respect to various transactions under the lease, and set out the facts relevant to whether or not Ms Bone’s claim was a justified one. In that affidavit, Mr Sinanovic said:

7. [11]

   The affidavit recorded entirely in English, amongst other things, conversations which he deposed to having with various real estate agents about the lease and issues relating to it. He also deposed to having a conversation with Ms Bone. These conversations were all recounted as taking place in English.

8. [12]

   Ms Bone swore four affidavits. In her first affidavit of 29 September 2021, she said that:

9. [13]

   Her affidavit does not say that she had any difficulty in having the communications necessary for entering into that agreement with Mr Sinanovic. No specific conversation is identified.

10. [14]

    In a further affidavit of 26 October 2021, Ms Bone deposed to a conversation she had with Mr Sinanovic. As she did not suggest that it was conducted in any other language, I infer that it took place in English. Her version of the conversation was as follows:

11. [15]

    Ms Bone did not suggest at all in her affidavit that she had any difficulty in communicating with or understanding communications with Mr Sinanovic. That affidavit also responded to various conversations which had been set out in Mr Sinanovic’s affidavit in English. There was no suggestion in either of the affidavits that the conversations were engaged in any other language other than English.

Hearing of Local Court Proceedings

1. [16]

   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.

2. [17]

   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.

3. [18]

   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.

4. [19]

   The Magistrate indicated that she did not have any problem with that arrangement, and then the following exchange occurred:

5. [20]

   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”.

6. [21]

   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.

7. [22]

   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.

8. [23]

   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.

9. [24]

   The following exchange then occurred:

10. [25]

    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.

11. [26]

    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.

12. [27]

    After a short adjournment, the matter resumed, and the following exchange took place:

13. [28]

    The Magistrate did not invite any submissions from Mr Sinanovic in reply to Mr Notley.

14. [29]

    Discussions continued about access to subpoenaed documents. Orders were made about such access.

15. [30]

    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:

16. [31]

    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.

17. [32]

    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.

18. [33]

    After some discussion about those issues, the following exchange took place:

19. [34]

    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:

20. [35]

    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.

21. [36]

    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.

22. [37]

    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:

23. [38]

    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”.

24. [39]

    The exchange in English continued with counsel in the following way:

25. [40]

    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:

26. [41]

    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.

27. [42]

    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:

28. [43]

    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.

29. [44]

    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:

30. [45]

    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.

31. [46]

    After a further exchange with Mr Notley, the Magistrate said:

32. [47]

    As he did so, Mr Sinanovic asked if he could say something. He said:

33. [48]

    The Magistrate responded:

34. [49]

    The matter was stood down while the Magistrate attended to a criminal case.

35. [50]

    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”.

36. [51]

    The Magistrate went on to say:

37. [52]

    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.

38. [53]

    At the conclusion of submissions, after a brief period, her Honour delivered her judgment orally. On that day her Honour made the following orders:

Mr Sinanovic’s Contentions

1. [54]

   In this Court, Mr Sinanovic in, it must be said, a rather unfocussed Summons and submissions, centrally contended that the Magistrate had erred in law in coming to the conclusion which she did, because he had not had the opportunity to put his admissible evidence before the court, with the consequence that he had not been permitted fairly to conduct his case.

2. [55]

   The first paragraph of the statement attached to the Summons, encapsulates the substance of the submissions. It reads:

3. [56]

   The submissions make the point that the Court erred in ruling that Mr Sinanovic’s affidavit was required to be interpreted rather than applying the relevant rule for affidavits sworn by people who were illiterate. The submissions drew attention to the fact that r 35.7 of the UCPR was the appropriate rule to be applied and that both counsel for Ms Bone and the Magistrate had acted erroneously in failing to understand that Mr Sinanovic could give evidence in English, as he continued to say, and as he in fact did on the “voir dire”, but could not read the words in the affidavit, because he was unable to read or write.

4. [57]

   The submissions went on to say that, had Mr Sinanovic’s affidavit been admitted, there would have been a material effect on the issues to be debated at the hearing and the findings of the Court at trial.

5. [58]

   In particular, Mr Sinanovic’s submissions drew attention to the obvious conundrum which the Magistrate did not confront. He submitted that if, in fact, he needed an interpreter in order to provide his written evidence, and in order to give evidence orally, then it would follow that he could not have understood the RTA, which was a written document in the English language, and into which he in fact entered. He submitted that, given that the RTA was the central document upon which he was found to have been liable to Ms Bone, the Magistrate’s judgment in coming to such a conclusion must have been erroneous.

6. [59]

   The defendant, Ms Bone’s, submissions sought to uphold the Magistrate’s decision. First, it was submitted that there was no pleading of any unconscionability with respect to the RTA and, accordingly, there was no basis upon which the Magistrate could have held that the agreement was not enforceable.

7. [60]

   Secondly, it was submitted that the issue about whether or not r 35.7 of the UCPR or r 31.62 of the UCPR was the appropriate rule, was not a question of law of a kind which this Court could deal with, because it was a matter of procedure, and the ruling regarding the evidence was correct.

8. [61]

   Thirdly, Ms Bone submitted that what was really in issue was a question of the application by the Local Court of matters of practice and procedure and, accordingly, leave to appeal would not ordinarily be given and would not lead to any error of law.

9. [62]

   Any decision of the Magistrate, it was submitted, was discretionary and, accordingly, was not subject to any proper basis for an appeal.

10. [63]

    Ultimately, it was submitted that this Court should not interfere because it was “well and truly open” to the Magistrate not to permit Mr Sinanovic to rely on his affidavit. Counsel for Ms Bone also relied upon the failure of Mr Sinanovic in the Local Court to arrange for an interpreter as the Court had ordered.

Discernment

1. [64]

   The proceedings on both days, but particularly on Day 2, involved the following elements of inadequate procedure:

   1. (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. (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. (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. (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. (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. (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. (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. (8)

      an erroneous rejection of the evidence sought to be put before the Court by Mr Sinanovic.

2. [65]

   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.

3. [66]

   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.

4. [67]

   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.

5. [68]

   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.

6. [69]

   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.