Contenzioso commercialeHow to take an Affidavit when the Deponent does not understand English

We often have clients who engage us who were born and raised outside of Australia.

While most of those clients speak fluent English, occasionally we have clients that speak little to no English and need the assistance of an interpreter.

Recently we had a client who spoke little English and who was required to swear an affidavit for a Queensland matter.

Although the Regole uniformi di procedura civile 1999 (Qld) (UCPR) and Oaths Act 1867 (Qld) (Oaths Act) contain rules for preparing affidavits in various circumstances, including in person, remotely and from overseas, they do not detail how a person should take an affidavit when the deponent does not understand English.

There is also no precedent in case law to assist with this. We therefore needed to determine what would be the most reasonably practicable way to take our client’s affidavit.

Under the UCPR, if you are dealing with language barriers in other situations you are often required to engage an interpreter or translator. For example, under rule 130 of the UCPR if you are serving documents in a country where English is not an official language, you must serve the documents along with a translated copy noting the translator’s name, address and qualifications.

A person who simply speaks the language fluently will not suffice, but a translator certified by the National Accreditation Authority for Translators and Interpreters (NAATI) will satisfy this requirement.

Based on the above, we determined that the best way to proceed with any affidavit for a person whose English is either very poor or non-existent would be to take the following steps:

1. Prepare the affidavit in English and include a statement at the end for the interpreter stating their name, address, qualifications and that they have accurately interpreted the affidavit and the client understands the contents;
2. Engage a NAATI interpreter to interpret the affidavit;
3. Provide the client and the interpreter with a copy of the affidavit;
4. Arrange a time to meet with the client and interpreter and have the interpreter interpret the affidavit paragraph by paragraph; and
5. Have the client sign the affidavit in the presence of a qualified witness and the interpreter sign their statement.

Though the above process is not specifically provided for under the UCPR or Oaths Act, we determined that this was the safest option until the legislation is amended or the Court makes a decision on what the appropriate process is.

Further we believe it doesn’t delay any court process should the court not be satisfied with other means of interpretation.

Articolo scritto da Ashleigh Boyce del nostro ufficio di Brisbane.