FEDERAL COURT OF AUSTRALIA
Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744
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Details
- Case
- [2011] FCA 744
- Decision Date
CaseChat Overview and Summary
The appeal in Zoltaszek v Downer EDI Engineering Pty Ltd was heard by the Federal Court, which considered the arguments brought forward by Mr Zoltaszek regarding the fairness of the hearing conducted by the Federal Magistrate. Mr Zoltaszek contended that his inability to fully comprehend the proceedings due to a lack of a proficient interpreter, coupled with his limited fluency in English, had deprived him of the opportunity to meaningfully participate in the hearing. This complaint was primarily against Downer EDI Engineering Pty Ltd and a named supervisor, Mr George Vlahakis, on grounds of alleged discrimination due to a disability and unfair treatment. The Federal Magistrate had previously dismissed Mr Zoltaszek's application, a decision which Mr Zoltaszek sought to appeal.
The primary legal issues addressed by the court involved the procedural fairness of the hearing, particularly focusing on whether the absence of a skilled interpreter denied Mr Zoltaszek a fair opportunity to participate in the proceedings. The court also considered whether the Federal Magistrate's decision to terminate the complaint against Downer was appropriate. Mr Zoltaszek argued that the lack of an interpreter impeded his ability to understand and engage with the evidence and arguments presented, thus compromising the fairness of the hearing.
The court reasoned that the onus of proving that the absence of an interpreter denied a party a fair hearing lies with the party making the claim. This onus must be discharged based on the specific circumstances of each case. The court found that Mr Zoltaszek had not sufficiently demonstrated that the interpreter's lack of skill had significantly affected his ability to participate in the hearing. The Federal Magistrate had already considered the issue of interpreter skills and concluded that no substantial prejudice had resulted from the interpreter's performance. The court further noted that Mr Zoltaszek had not provided any evidence or arguments to suggest that the interpreter's performance was inadequate. The appeal was dismissed on the grounds that Mr Zoltaszek had failed to establish any appellable error by the Federal Magistrate.
The court's final orders were that the appeal was dismissed, the question of costs was reserved, and any application for a further oral hearing regarding costs had to be made within seven days. If no such application was made, the Respondent was required to file written submissions on costs within ten days, and the Applicant within fourteen days.
The primary legal issues addressed by the court involved the procedural fairness of the hearing, particularly focusing on whether the absence of a skilled interpreter denied Mr Zoltaszek a fair opportunity to participate in the proceedings. The court also considered whether the Federal Magistrate's decision to terminate the complaint against Downer was appropriate. Mr Zoltaszek argued that the lack of an interpreter impeded his ability to understand and engage with the evidence and arguments presented, thus compromising the fairness of the hearing.
The court reasoned that the onus of proving that the absence of an interpreter denied a party a fair hearing lies with the party making the claim. This onus must be discharged based on the specific circumstances of each case. The court found that Mr Zoltaszek had not sufficiently demonstrated that the interpreter's lack of skill had significantly affected his ability to participate in the hearing. The Federal Magistrate had already considered the issue of interpreter skills and concluded that no substantial prejudice had resulted from the interpreter's performance. The court further noted that Mr Zoltaszek had not provided any evidence or arguments to suggest that the interpreter's performance was inadequate. The appeal was dismissed on the grounds that Mr Zoltaszek had failed to establish any appellable error by the Federal Magistrate.
The court's final orders were that the appeal was dismissed, the question of costs was reserved, and any application for a further oral hearing regarding costs had to be made within seven days. If no such application was made, the Respondent was required to file written submissions on costs within ten days, and the Applicant within fourteen days.
Orders
Orders of the court
1. The appeal is dismissed.
2. The question as to costs is reserved.
3. Any application for a further oral hearing in respect to costs is to be made by either party within 7 days.
4. In the absence of any application for an oral hearing as to costs:
(i) the Respondent is to file and serve such further written submissions in respect to costs within ten days;
(ii) the Applicant is to file and serve further written submissions in respect to costs within fourteen days.
Note:
Background
Background to the litigation
The present arguments of Mr Zoltaszek, however, go to the very fundamentals of procedural fairness. He may have been present during the course of the hearing before the Federal Magistrate – but he maintains that his fluency in English, and the lack of a proficient interpreter, has denied him of the opportunity to meaningfully participate in that hearing. An inability to comprehend the evidence being given and the arguments being advanced may in some circumstances make the provision of court hearing time an illusory right. THE BACKGROUND FACTS The Complaint as first filed with the Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission) (the “Commission”) on 2 October 2007 made a complaint as against the present Respondent, Downer EDI Engineering Pty Ltd (“Downer”) and against Mr George Vlahakis, a person described as a “supervisor”. Mr Zoltaszek claimed that he had been discriminated against by reason of his having a disability and by reason of his having been treated “unfairly for another reason”. The disability was there identified as a “back injury and tendonitis”. On 26 May 2009 the Commission wrote to Mr Zoltaszek informing him of the decision to terminate his complaint. The Commission stated that it was “satisfied that some allegations in your complaint are lacking in substance and that some allegations could be more effectively or conveniently dealt with by another statutory authority”. The reasons provided in support of that decision stated that the complaint was lacking in substance because there was “no evidence to indicate that Downer withheld work from you because of your disability”. Those reasons also recorded that Downer had not “discriminated against you in the work it offered to you”. The other statutory authority to which reference was made was identified as the Workcover Authority of New South Wales. On 1 July 2009 Mr Zoltaszek filed an Application in the Federal Magistrates Court. Part C of that Application called for the provision of details identifying the Applicant and any special needs that he may require at the hearing. Four of the details to be provided and the responses provided were as follows: A Federal Magistrate heard that Application on 21 September 2010 and delivered her reasons for decision on 3 December 2010. AN UNSKILLED INTERPRETER? The first purported Ground of Appeal states that the “interpreter was not enough skill”. A fair hearing may require the provision of an interpreter. If a party is not proficient in English, he is “effectively unable to exercise his right to give evidence unless an interpreter assists him”: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at 17 per Kenny J. But, as with other grounds of judicial review (VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Dunghutti Elders Council v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCA 370 at [24]), the onus of establishing that the absence of an interpreter has denied a party a meaningful opportunity to present his case remains upon the party making that claim. And how that onus is to be discharged will also depend upon the particular facts and circumstances of each individual case. On occasions it may be apparent to the court itself that evidence or submissions are not being translated at all or not completely. On those occasions it may be incumbent upon the court to intervene to ensure that the hearing is being conducted fairly.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The final purported Ground of Appeal is also dismissed. CONCLUSIONS The appeal is to be dismissed. Mr Zoltaszek has not established any appellable error committed by the Federal Magistrate. Reference was made by both Mr Zoltaszek and Counsel for the Respondent to a subsequent decision of the Federal Magistrate in respect to the basis upon which costs were awarded in that court. That decision was Zoltaszek v Downer EDI Engineering Pty Ltd (No 3) [2011] FMCA 141. Both parties were content for the question of costs and the basis upon which any costs orders should be made to be addressed separately. In the absence of any application for any further oral hearing to be undertaken in respect to costs, orders should be now be made for the filing of further written submissions in respect to costs. ORDERS The orders of the Court are:1.The appeal is dismissed.2.The question as to costs is reserved.3.Any application for a further oral hearing in respect to costs is to be made by either party within 7 days.4.In the absence of any application for an oral hearing as to costs:(i)the Respondent is to file and serve such further written submissions in respect to costs within ten days;(ii)the Applicant is to file and serve further written submissions in respect to costs within fourteen days.
Ratio Decidendi
Legal Principle Established
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