Gin and Hing (No 4) - [2020] FamCA 746

FAMILY COURT OF AUSTRALIA

GIN & HING (NO 4)

[2020] FamCA 746

FAMILY LAW – EVIDENCE – on the ninth day of the trial and after a certain translation of 13 audio files had been ruled inadmissible, Mr Gin seeks to cross examine the maker of the authorised translation by putting to him the revision given by the translator whose translation was ruled inadmissible – applicant seeking to rely on previous translation– parties bound by the manner in which they conduct their case – applicant must identify each individual inconsistency to be put to witness.

FAMILY LAW – COSTS – the applicant is to meet the costs of this additional task.

Evidence Act 2008 (Vic) s 135

Gin & Hing [2019] FamCA 779
Ramsay Health & Compton (2017) 261 CLR 132

APPLICANT:

Mr Gin

RESPONDENT:

Ms Hing

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

FILE NUMBER:

MLC

4528

2010

DATE DELIVERED:

3 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

31 August, 1, 2, 3, 4 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

GR Lawyers

COUNSEL FOR THE RESPONDENT:

Mr F. Dixon SC

SOLICITOR FOR THE RESPONDENT:

Clancy And Triado

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr D. Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

Orders

The applicant must identify in writing each line of the Mr K translation that the applicant intends to put to Mr K in Mr K’s cross examination as being inaccurate.
The applicant must state the contrary version to be put by him to Mr K.
By 4pm on 3 September 2020 or in such later time as may be allowed the applicant must formulate that document and to circulate it to Mr Dixon SC and to Mr Whitchurch.
The applicant must meet the costs of this additional task.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gin & Hing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4528 of 2010

Mr Gin

Applicant

And

Ms Hing

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Mr K is soon to give evidence in this case. Objection has been taken to there being debate and cross-examination about Mr K’s transcription of the evidence. This debate occurred on day 9 of the trial at a time when Mr Gin is still under cross-examination by Mr Whitchurch, counsel for the ICL. I ruled on the imbroglio created by the insufficiency, inadequacy and inaccuracy of the Mr F transcription in my 2019 decision in Gin & Hing.[1] As a result of that ruling on 18 November 2019, I ordered that Mr K of L Transcription Service be appointed and to provide a third-party independent translation of the 13 sound bites and files that were provided to him.
[1][2019] FamCA 779.
That was consistent with Ms Stoikovska SC’s suggestion, who then represented Mr Gin, and it was put forward as a method that avoided what Ms Stoikovska described as the complete derailment of the trial.
In my reasons handed down on 29 October 2019, I said several things about the consequences of the need to appoint a new independent person to translate the 13 sound files. They are contained in paragraphs 87 through to 89 of my reasons, and I incorporate them for present purposes in these reasons. It is self-evident that one of the observations set out in paragraph 89 included that fairness required that all parties examine the new transcript and be permitted to consider whether, and if so, to what extent any further cross-examination about it may be required. Today, Mr Dixon of Senior Counsel submitted that he would have conducted his cross-examination of Mr Gin differently had Mr Gin been permitted to adduce the evidence of Mr F.
Let me now turn to Mr Gin’s approach on this application. Despite my ruling that the Mr F translation was defective, Mr Gin told me he intends and stated his intention to be that he wishes to put to Mr K, based on the Mr F translation, that Mr K’s translation is, in many respects, wrong, inaccurate or defective. It is a moot point precisely how Mr Gin is to achieve that through Mr K. I have previously ruled that the Mr F translation is unreliable. I maintain that view.
It may have been in Mr Gin’s thinking that he could take issue with Mr K, that Mr K is wrong in translating in the way he did. That would make Mr Gin an advocate, witness and a party all simultaneously. By adopting such a course, this case is likely to expand in duration and is likely to be chaotic and uncontrolled. I will not permit a case of which I am the trial judge to be chaotic and uncontrolled. The Mr K version is the best evidence in this case. Mr Gin says it is not perfect because it includes erroneous references to “daddy” when that is a reference to Ms Hing’s new husband and that the Mr K transcript contains words described as “indistinct” where according to the Mr F version, words were actually used, and that the Mr K version is inaccurate by recording “indistinct”.
It is not uncommon for transcripts to be inaccurate in that every single word recorded on the transcript is utterly pinpoint precise. That said, in my long experience with transcriptions of evidence given by witnesses in courts or of evidence given by persons as translated and transcribed by accredited bodies, transcriptions and translations are usually accurate to a near perfect extent. That reflects very well on the persons who provide transcription services on which the work of this court is daily based. It seems to me that Mr K’s translation provides the best evidence. That said, Mr Gin may in fact be correct in his assertion that the Mr K translation is not 100 per cent perfect.
Rarely is any transcript 100 per cent perfect. At this juncture, I need to balance two issues. The first is permitting Mr Gin to take Mr K on a line-by-line basis to an examination of Mr K’s transcript. In doing that exercise, Mr Gin will not achieve any forensic advantage by putting to Mr K Mr F’s version of the relevant passage, because the Mr F version has been ruled defective. That leaves the only other method by which Mr Gin could put any version that contradicts Mr K, by Mr Gin himself putting to Mr K what Mr Gin says is the correct version and inviting Mr K’s response. To the extent that Mr K disputes Mr Gin’s version, that will leave the point unresolved. In any event, even in that state of affairs, I will be required to assess the totality of the evidence given by the translations, irrespective of minor variances therein. I will also be required to weigh the evidence provided in the translations against all other evidence in this case.
The second issue that arises is the time and prolongation of the trail that will be occasioned by Mr Gin’s approach. This case is in its ninth day, in its second tranche of hearing dates. It will not finish within 10 days, that much seems assured.
Authority exists to the effect that a party is bound by the way in which he, she or it has chosen to conduct the proceeding. The point was canvassed by the High Court in Ramsay Health Australia Pty Ltd & Compton.[2] However, the court there held that where a default or consent judgment is under consideration, especially one where bankruptcy follows, the notion that a party is bound by the conduct of his or her case has never been a sufficient reason not to look behind the consent or default judgment. Questions of consent or default judgments are not relevant to this case. In my view, Mr Gin is bound by the way he with advice from his senior counsel conducted the case. That conduct involved the appointment of Mr K whose translation has not been the subject of challenge in any formal sense. It is true Mr Gin wrote to the Independent Children’s Lawyer in late August notifying of his intention to challenge Mr K. However, on 18 November 2019, when the appointment of Mr K was agitated, no such indication was canvassed, still less was contradictory evidence put forward. The Mr F translation is not a proper translation, as I ruled on 29 October 2019.
[2](2017) 261 CLR 132, 151.
Mr Whitchurch was most vocal in his objection to Mr Gin’s proposal to cross-examine Mr K. In paragraph 89 of my reasons in the ruling on 29 October, I specifically contemplated the parties cross-examining on the new Mr K transcript.
It seems to me that the way forward is something of a hybrid. On principles of procedural fairness, Mr Gin should have an opportunity to challenge Mr K. I will not allow him to put to Mr K the Mr F version of the translation in view of my ruling about the unreliability of the Mr F version. Before Mr Gin cross- examines Mr K, I require him to:
a)identify in writing each line of the Mr K translation that Mr Gin intends to put to Mr K as being inaccurate;
b)to state the contrary version to be put by Mr Gin; and
c)to formulate that document by 4 pm today or in such later time as may be allowed and to circulate that to Mr Dixon SC and to Mr Whitchurch.
Mr Whitchurch will then be the conduit for the provision of that document to Mr K for his consideration. Mr K may agree with what Mr Gin puts. On the other hand, he may not.
If Mr K takes issue with Mr Gin about the version that Mr Gin puts, I will, at the appropriate time, allow Mr Gin to cross-examine Mr K only on the parts of the Mr K translation with which Mr K takes issue. That will not be at large, however. Mr Gin should be selective to group his challenges into categories.
Both Mr Dixon and Mr Whitchurch have reserved their position to rely on s 135 of the Evidence Act to contend that the prejudicial basis of the proposal outweighs its probative value. Whatever Mr K may say in cross-examination in response to Mr Gin’s proposal, I will entertain an application under s 135.

Costs of Mr K

Let me now turn to Mr K’s costs for undertaking the additional step that is contemplated by this ruling. Mr Dixon says Mr Gin should bear the fees for Mr K for the extra steps to be undertaken pursuant to this ruling. Mr Dixon says that is consistent with the intendment and thrust of my ruling on 29 October 2019. Mr Dixon says no costs should be attributed to Ms Hing, as this whole debate has arisen on the ninth day of the trial when, had a contrary approach been foreshadowed in November last year, a different approach may have been taken and a calm and rational approach to costs may have been agitated.
Mr Whitchurch says that Mr Gin should bear the costs. Mr Gin says costs should be shared or reserved.
It is important to point out that only Mr Gin seeks the course on which he wishes to embark for the purposes of this additional step.
That said, there is some merit in Mr Gin’s contention that Ms Hing speaks Chinese and that she could have, had she applied herself, engaged in a cooperative attempt to identify, if it be the fact, that there are imprecisions in the Mr K translation. That might be overstating it, however, for the simple reason that this challenge has arisen on the ninth day of the trial and it is only now that the point about the Mr K translation has arisen.
It might also be said that as late as August of this year, Mr Gin emailed the Independent Children’s Lawyer inviting a subsequent listening of the tape, or audio recordings, and to the extent that Mr K’s and Mr F’s material were not the same, whether Mr K identified and said that his material is more accurate and should be preferred. That seems to me to have been an erroneous application of my ruling made in late November of last year, where I essentially threw out the Mr F translation. It had thereafter no evidentiary value. It has become irrelevant for the purposes of this case.
In those circumstances, one wonders how, on the ninth day of the trial, Ms Hing could have been asked, notwithstanding her competence in the Chinese language, to do what Mr Gin said. In those circumstances, it seems to me that Mr Gin should meet the cost of this extra step that he seeks on the ninth day of this trial.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 3 September 2020.

Associate:

Date: 8 September 2020