Mekhail v Hana; Mekail v Hana

[2017] NSWSC 575

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail [2017] NSWSC 575

Hearing dates:

10 May 2017

Date of orders:

10 May 2017

Decision date:

10 May 2017

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Court reporting preferred, subject to resource constraints of the Court.

Catchwords:

EQUITY – Practice and Procedure –litigant in person – referred previously to pro bono assistance – plaintiff with strong accent and very difficult to understand at times to be self-represented at trial –interpreter not required - whether court reporting or court recording is appropriate.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

In 2015/186751
Plaintiff: Magdy Mekhail
Defendant: Georgette Hana

In 2015/310332
Plaintiff: Youssef Shoukry Wardakhan Mekail
Defendant Georgette Hana

Representation:

Counsel:

 

In 2015/186751
Plaintiff: J. Thomson
Defendant: D. Allen

 

Solicitors:
In 2015/186751
Plaintiff: John Kambas, P.K. Simpson & Co
Defendant: Richard Mitry, Mitry Lawyers

 

In 2015/310332

  Plaintiff: Youssef Mekail in person

File Number(s):

2015/00186751; 2015/00310332

Publication restriction:

No

EX TEMPORE Judgment

1. This matter is listed today for directions for a two week trial commencing on Monday, 15 May 2017. Ordinarily in cases that go beyond one day, court recorders take down the evidence on tape, to be re-typed remotely. But in this case, for the reasons I am about to explain, it is very important that the evidence be taken by manual court reporters.

2. There have been several directions hearings in this case in which two actions are being brought. Mr Thompson of counsel appears for one plaintiff, Magdy Mekhail; the other plaintiff, Mr Youssef Mekail represents himself. Mr Allen of counsel represents the same defendant in each case, Ms Georgette Hana.

3. The Court referred Mr Youssef Mekail for pro bono assistance to the Bar Association under Uniform Civil Procedure Rules 2005 (NSW), r 7.36. Counsel would have helped to make his case far more understandable. But that has not been fruitful. It is clear now, two clear working days from the trial, that he will not be legally represented during the trial and will present his own case.

4. Legal representation would assist Mr Mekail. It is extremely difficult at times to follow Mr Mekail when he is putting submissions to the Court, especially when he is speaking quickly, as he often does. When he gives his evidence the same difficulty will certainly appear. I have reassured Mr Mekail that what I am saying in these reasons is not a criticism of him personally. But it is simply a product of the fact that he has a very strong accent. The Court’s purpose here is to ensure that his case is heard to its best advantage, so that justice can be done among these parties.

5. Mr Mekail was born in Cairo. His first language is Arabic. He migrated to Australia in 2008. His English is good, so it is not appropriate for him to have an interpreter.

6. I have found in the directions hearings that have so far been held that when I strain to understand what Mr Mekail says, and I think I do understand him, that the court reporters who have been present sometimes, say they cannot follow Mr Mekail. Because of their immediate indications I have been able to stop the proceedings and ask Mr Mekail to repeat what he has said, so it can be properly recorded by the court reporters.

7. This is not a case where one can confine what Mr Youssef Mekail says in evidence to a particular time. He will be speaking throughout the whole trial. For those reasons, it seems to me, there is no practical alternative but to take the course of having his evidence taken by manual court reporters.

8. It is necessary in this case for something to be done to ensure Mr Youssef Mekail’s case is properly judged upon a correct record of what he presents. I have a grave concern that if that opportunity is not afforded to the Court in dealing with Mr Mekail during the hearing of these proceedings, some of what he says to the Court, either in submissions or in evidence, may be lost and left to speculation.

9. For that reason I direct as follows: that to the extent it is possible within the Court's resources, these proceedings should be conducted by court reporters rather than court recorders.

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Amendments

15 May 2017 - appearances

Decision last updated: 15 May 2017