Self Care v Green Forest (No 11)
[2022] FedCFamC2G 257
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Self Care v Green Forest (No 11) [2022] FedCFamC2G 257
File number(s): SYG2771 of 2019 Judgment of: JUDGE BAIRD Date of judgment: 25 March 2022 Catchwords: INTELLECTUAL PROPERTY – PRACTICE AND PROCEDURE – admissibility of translations of some 2000 WeChat communications – where applicants seeks leave to rely on non‑NAATI‑certified translations – expertise – where Chinese-English translators work in a separate document review team employed at applicants’ solicitors’ firm – where each translator is a native Cantonese or Mandarin speaker, and educated in written Chinese – relevant expertise shown – objection to tender of translations – case management principles where proceeding is part‑heard – where costs incurred in obtaining translations not charged to applicants and will not form costs in the proceeding – leave granted Legislation: Evidence Act 1995 (Cth) ss 135, 136
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Buterav Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180
Self Care v Green Forest (No 2) [2021] FCCA 1000
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 25 March 2022 Date of hearing: 25 March 2022 Place: Sydney Counsel for the Applicants: Mr C McMeniman Solicitor for the Applicants: Gilbert + Tobin Counsel for the First, Second, Fifteenth and Seventeenth Respondents: Mr D Parish Solicitor for the First, Second, Fifteenth and Seventeenth Respondents: H+H Lawyers ORDERS
SYG 2771 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SELF CARE CORPORATION PTY LTD (ACN 132 213 113)
First Applicant
SELF CARE IP HOLDINGS PTY LTD (ACN 134 308 151)
Second Applicant
AND: GREEN FOREST INTERNATIONAL PTY LTD (ACN 607 602 988)
First Respondent
YAOAN (ERIC) CHEN
Second Respondent
YILIN TRADING PTY LTD (ACN 626 244 479) (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE BAIRD
DATE OF ORDER:
26 APRIL 2022
THE COURT:
1.DIRECTS the parties confer and provide to the Chambers of Judge Baird proposed short minutes of order, giving effect to these reasons.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
Judge Baird
Introduction
The issues before me for determination today have arisen in the course of hearing a matter which is part-heard at final hearing, and has already occupied over 11 days of hearing. They concern the leave to rely on and admissibility of translation of some 2000-plus pages of WeChat communications (translation issue). The final hearing will continue with further witnesses being required for oral evidence in mid-June 2022. The hearing is still in the applicants’ case, and there are at least six or seven or more applicants’ witnesses still to be examined, and objections that have not yet been ruled upon.
The approximately 2000 WeChat communications before me for ruling today comprise communications between what, for convenience, I will call the Green Forest parties (being the first, second, fifteenth and seventeenth respondents), and others whom I understand from counsel, may be other respondents in the proceeding, or persons who are not respondents. These WeChat communications in their original discovered form are written in Mandarin/ Chinese characters (Mandarin WeChat communications). They cover the periods 2016 and 2017, from which there are a few messages, and predominantly the period from 2018 up until October 2019, when this proceeding first commenced.
The questions before me today have been ably argued by counsel for the applicants, Mr McMeniman, and counsel for the Green Forest parties, Mr Parish. There is no dispute between counsel that the WeChat communications have at least apparent relevance, and relevance to an issue in the proceeding. There is a question which in my view cannot be determined today as to what weight some or all of these communications may bear.
Background
By way of further background, I am informed by counsel that some WeChat communications have been the subject of translation by NAATI‑certified persons. I am operating under the understanding that the subset of WeChat communications that are NAATI‑certified expert translations are documents that, in their Chinese form, are included in the Mandarin WeChat communications in issue.
In addition, other communications on WeChat or by way of WeChat made or received by the Green Forest parties are the subject of NAATI‑certified expert translations which are proposed to be read or tendered in the Green Forest parties’ case.
It is in the above context that I apprehend that there is no dispute among the parties that there is a relevance to the WeChat communications if, and only if certain hurdles are overcome. Those hurdles comprise, in the main, the question of leave which has two aspects which I will come to further in these reasons, and the question of admissibility which, in turn is concerned with the nature of the Chinese to English translations that are sought to be relied on by the applicants.
Chronology of provision of the Mandarin WeChat communications and translations
It is not in dispute between the parties that the applicants’ translations which they propound and seek to tender, and the affidavits of persons who made those translations, are not made by any person who is a NAATI‑certified translator. I consider that the WeChat communications fall into two groups:
(a)first, a tranche of some 600‑pages of Mandarin WeChat communications and corresponding translations of those communications (first tranche); and
(b)second, a tranche of some 1400‑pages of Mandarin WeChat communications and corresponding translations of those communications (second tranche).
The two tranches of Mandarin WeChat communications start from the same source, namely discovery in January 2021 by the Green Forest parties after other, earlier discovery had been made (that discovery is not relevant to the present issues), and thereafter diverge. In these reasons, when I use the word translations, I mean the English translations of the Mandarin WeChat communications proposed by the applicants.
February 2021 – service of first tranche
I turn to the first tranche. The first tranche was disclosed in the affidavit of the applicants’ solicitor, Mr Michael John Williams, dated 16 February 2021 (Williams 28) and corresponding exhibit to that affidavit. This tranche was tendered in evidence on the hearing of an interlocutory application to join to the proceeding Ms Cynthia Li, a director of the first respondent, Green Forest, as the seventeenth respondent, and for the applicants to obtain leave to file and serve a further amended statement of claim. Consequent upon the interlocutory judgment I delivered in May 2021, a later version of that proposed further amended statement of claim is the Claim before the Court at hearing: see Self Care v Green Forest (No 2) [2021] FCCA 1000 (Self Care No 2).
In Williams 28, Mr Williams deposed that exhibited to his affidavit were copies of material produced by Green Forest, the second respondent, Mr Yaoan Chen, and the sixteenth (sic) respondent (that is, the fifteenth respondent, E-Go Channel Pty Ltd), over which those respondents claimed confidentiality, and English translations of the Mandarin documents caused to be prepared by Gilbert + Tobin GTDocs Reviewers Ms Fiona Chiu and Ms Qucan (Charmaine) He, each of whom Mr Williams attests he is informed and believes is a native Mandarin speaker.
Mr Williams deposed to the following at [8] (emphasis added):
[8]Due to the volume of the Mandarin material produced in response to the discovery orders on 14 January 2021, and the time sensitive nature of this application, Self Care has not been able to have those documents translated in to English in full as at the date of this affidavit. The last of the WeChats referred to in this affidavit were only translated today. All of the WeChat material produced by Green Forest in the proceedings will be tendered by Self Care in due course and has been included in the Applicants’ Amended Initial List of Documents circulated to the legal representatives for the respondents on 11 February 2021. Self Care makes no claim for confidentiality over this information.
Williams 28 and the corresponding exhibits MJW‑34 and confidential exhibit MJW‑35 (the latter including the first tranche) were referenced and included in the draft Court Book circulated among the parties before this hearing commenced in August 2021, and are contained in the Court Book, I consider that by their inclusion in the draft Court Book notice of the applicants’ intention to tender the first tranche was provided on 16 February 2021.
Mr McMeniman points to Mr Williams’ statements in Williams 28 at [8] (set out above at [11]). In exchanges between the Bench and the Bar table today, I posited that in context the expression “all of the WeChat material produced by Green Forest in the proceedings will be tendered by Self Care in due course” is reasonably to be understood as that material in a form which can be comprehended by the Court and the parties, that is, translated. However, I do not read the statement as saying that the material will be translated by a NAATI-certified translator, nor that there would not be objection to the admissibility of any such material.
I interpose here that I understand Mr Parish to make the point, properly, that in its Chinese documentary form, the Mandarin WeChat communications are not admissible, not the least of which because they cannot reasonably be expected to be understood by this Court. I accept Mr Parish’s submission that the Mandarin WeChat communications and thus the content of the communications would not be admissible without translation to accompany and verify the content.
June 2021 – “Agreed Bundle”
The next relevant date appears to me to be on or about 18 June 2021, when pursuant to directions made by the Court on 25 May 2021 (which directions updated earlier pre‑trial time tables) the parties engaged in identification of a proposed “agreed bundle” for hearing. The applicants served a copy of that bundle and provided a copy to my Chambers. The parties were directed to indicate in respect of the bundle any documents over which there was an objection, and if so, the nature of that objection. The applicants included the first tranche of the Mandarin WeChat communications, but no translations to those Mandarin WeChat communications. I am informed by counsel that there were no objections at that time communicated in respect of the bundle. I note however, that by the phrase “agreed bundle”, it is not intended, and I do not understand it to be intended, that the bundle is agreed and would be received into evidence subject to the discretion of the Court, without parties making objection in due course.
Particulars of the Claim
Turning then back to the first tranche, the claim provides, at least in paragraph 38(C), particulars identifying the first tranche of Mandarin WeChat communications and translations.
To complete the chronology relevant to the translation issue, I note the final hearing of this proceeding commenced on 2 August 2021 after some delay because of the uncertainty of the nature and extent of the lockdown imposed in mid-2021 on at least Sydney, and thereafter greater Sydney and other parts of New South Wales, and continued for 11 days, not all of which were consecutive up until about 20 August 2021. It was conducted via Microsoft Teams (August hearing).
I apprehend there was no other notice given prior to the hearing, of any additional translations of the Mandarin WeChat communications sought to be relied on by the applicants. The extent of the notice remained that set out in Williams 28 at [8].
Translation issue raised at August hearing
The issue of translations and expertise, thus admissibility, was raised squarely in the August hearing, including by Mr Parish, by reference to the decision of the High Court in Buterav Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180. During the course of exchanges between the Bench and the Bar table in the August hearing, including in relation to other translations of other documents, I explored a course for the parties to take in relation to the particular translation of some documents, including certificates of copyright registration.
Raising a point which has brought the matter before me today, Mr Parish informed the Court (transcript page 487 from lines 26):
In due course, your Honour will hear objections to translation evidence that relates to our clients as well and we are concerned that giving leave for someone to prove their expertise and then translate one by one is an egregious waste of time and is really a section 190(3) issue which is going to waste a lot of court time, a lot of our time, to help the applicants strap up a problem with their evidence which they should have done properly in the last 18 months…I just raise that because that’s going to come up in relation to our objections as well later on.
On the next day of hearing, 11 August 2021, I returned to the ruling I had made, and Mr Parish’s statements of the general translation issue (transcript page 539, lines 18 onwards):
But the section 193 (sic) issue is one that arises quite squarely on the respondents wasting the Court’s time for something which ultimately – particularly those respondents who have Chinese clients who may well be able to read the documents and provide proper instructions as to their concerns and which translation is or is not stated to be accurate, and I note that some of the respondents – Mr Di Francesco’s client (that is, the 16th respondent) – have done just that, but not all have.
I then continued:
I reserve at the moment…[I interpolate here, the reservation was the opportunity to reconsider], particularly in those translations where there is some person who has – either they are formal records – or purport to be formal records, namely, issued by Chinese registration authorities, or so they purport to be. There is no statement, assertion or any evidence before me as to why they are not to say what they purport to be on their face. And the question as to the translation is one that falls under both section 79 [of the Evidence Act] and also separately in the question of how the Court should conduct the hearing, given that everyone has been represented for a considerable time and has had more than enough time to talk to each other, under section 193 (sic), and bearing in mind the objects of the Rules and the obligations of counsel. I’ve had my spiel.
Now, noting that the transcript erroneously refers to s 193 of the Evidence Act 1995 (Cth) rather than s 190(3), and also that, as Mr Parish has raised today, on the question of admissibility, in the first instance it is for the applicants at least to establish why the translations that they propound should be admitted, the issue I was directing parties to then was the question of how to conduct a trial going forward having regard to the Court’s Rules (and counsel’s, and solicitors’ obligations), and what should or should not be an issue.
In short, the issue of translation was raised at that time, and the issue was raised more generally by Mr Parish informing the Court, as he had through the respondents’ objections to the applicants’ evidence already informed the applicants, that translation evidence would be objected to.
Applicants’ proposed approach and response
The evidence before me today includes correspondence between the applicants and at least the solicitors for the Green Forest parties, and the solicitors for the sixteenth respondent, Australian Vitamin Plus Pty Ltd (AVP) as to what course to take with respect to translation of the Mandarin WeChat communications, which I reasonably understand, in the case of the Green Forest parties, to include or comprise the 2000 Mandarin WeChat communications now before me for ruling today.
Relevantly, I note that in a letter dated 11 August 2021, from the applicants’ solicitors Gilbert + Tobin, under the signature of the applicants’ solicitor, Mr Williams (G+T Letter), the applicants proposed two approaches to resolve the issue of the translation, first, that the relevant applicants witnesses provide translations of the documents during their oral evidence, and secondly, the option to obtain NAATI‑certified translations for those in dispute. The G+T Letter also stated:
Such notifications would need to identify any dispute not only to the translations provided in the applicants’ filed affidavits but, also in each of the opening bundles relied on by the applicants.
Mr Parish makes two points:
(1)the G+T Letter occurred in the midst of the August hearing, and the time for response was extremely truncated; and
(2)the G+T Letter can be read as placing the onus on the respondents either to notify the applicants which translations in the applicants’ evidence are disputed, and for the applicants to obtain NAATI‑certified translations of those documents, and which party would ultimately bear the cost of these translations would be reserved for later determination.
In any event, the relevant respondents rejected both approaches proposed by the applicants’ solicitors In particular, the Green Forest legal representatives state:
The translation evidence at exhibit MJW-35 has always been patently inadmissible at a final hearing. You have been on notice of our objections since 25 June 2021. It is up to your clients to address the admissibility of its own evidence.
October 2021 – service of second tranche
That correspondence did not lead to any agreement between the parties. On 18 October 2021, the applicants served copies of the remaining 1400‑pages of Mandarin WeChat communications and translations. They did not at that time serve any affidavits from the persons who translated the Mandarin WeChat communications. Following a case management hearing on 8 December 2021, on 9 December 2021 I made orders for the continuance of the hearing which orders included the dates 24 and 25 March 2022 to address certain objection issues, issues of the tender of physical exhibits, and the translation issue.
Just before that December case management hearing, Mr Williams made an affidavit dated 6 December 2021 (Williams 33), which includes inter alia, exhibits MJW‑41, and MJW‑43. Exhibit MJW‑43 includes all of the 600‑pages of Mandarin WeChat communications and their translations, together with the remaining 1400‑pages of WeChat communications and translations. Mr Williams stated (omitting emboldening of exhibits):
[20] On 11 August 2021, after the issue of translations of Mandarin Chinese documents in Self Care’s evidence was raised in Court on 10 August 2021, Gilbert + Tobin wrote to the participating respondents proposing that the respondents notify Self Care of the translations in dispute, following which Self Care would obtain NAATI translations of those documents. A copy of this letter appears at pages 71 to 72 of Exhibit MJW‑41.
[21] The responses received from HWL Ebsworth and H+H Lawyers declining Self Care’s proposal are reproduced at pages 73 to 76 of Exhibit MJW‑41. Subsequent correspondence between Gilbert + Tobin and HWL Ebsworth is reproduced at pages 77 to 80 of Exhibit MJW‑41.
[22] No responses were received from any other party or their legal representatives.
Translations of Green Forest WeChat messages
[23] In my twenty‑eighth affidavit in these proceedings sworn on 16 February 2021, I referred to and exhibited partial English translations of WeChat messages that were produced on discovery by the Green Forest parties, noting the following in paragraph 8:
[set out in these reasons at [11] above].
[24] All WeChat messages produced on discovery by the Green Forest parties have now been translated.
[25] Due to the very substantial expense involved in engaging NAATI‑certified translators (I refer to paragraph 26 below), the English translations in Exhibit MJW‑43 were prepared by the following individuals who are employed by Gilbert + Tobin as Mandarin‑speaking document reviewers with the job title “GTDocs Lead Reviewer” and who otherwise have no involvement in this proceeding:
(a)Ms Fonia Chiu, who is a native Cantonese speaker and fluent in Mandarin. Ms Chiu is admitted as a solicitor in New South Wales and holds a current practising certificate issued by the Law Society of New South Wales (Ms Chui’s CV appears at page 5 of Exhibit MJW‑43);
(b)Ms Qucan (Charmaine) He, who is a native Mandarin speaker. Ms He is admitted as a solicitor in New South Wales and holds a current practising certificate issued by the Law Society of New South Wales (Ms He’s CV appears at page 6 of Exhibit MJW‑43); and
(c) Ms Kelly Guo, who is a native Mandarin speaker. Ms Guo is admitted as a solicitor in New South Wales and is currently in the process of obtaining a practising certificate from the Law Society of New South Wales (Ms Guo’s CV appears at pages 7 to 8 of Exhibit MJW‑43).
[26] Prior to instructing Ms Chiu, Ms He and Ms Guo to prepare the translations of the WeChat messages in Exhibit MJW‑43 for the purposes of the final hearing in the proceeding, I caused enquiries to be made about the cost involved in having the messages translated by a NAATI‑certified Mandarin/English translator. Based on these enquiries, I estimate that the cost to Self Care of engaging a NAATI‑certified translator to carry out the translation exercise would be at least one hundred thousand dollars and would likely be in the hundreds of thousands of dollars to complete.
[27]As a result of this significant expense, and the limited availability of qualified translators able to take on a task this size, I considered it more appropriate in the context of these proceedings and in light of the objects of the Court to have Ms Chiu, Ms He and Ms Guo prepare the translations. As each of Ms Chiu, Ms He and Ms Guo work in Gilbert + Tobin’s electronic document review team, the cost of their translations was absorbed by Gilbert + Tobin and not charged to Self Care.
[28]I confirm that no one else at Gilbert + Tobin has had any input into the translations in Exhibit MJW‑43 (other than in relation to formatting). Nor have the translations been provided to Self Care.
[29]The WeChat translations were provided to Green Forest’s legal representatives, H+H Lawyers, on 18 October 2021, together with copies of the CVs of the translators (Ms Chiu, Ms He and Ms Guo). A copy of Gilbert + Tobin’s letter dated 18 October 2021 with enclosures is exhibited to this affidavit as Exhibit MJW‑43. I confirm that the English translations of all messages relating to freezeframe Products are set out on the right‑hand side of the page, corresponding to the original WeChat message in Mandarin on the left hand side of the page.
[30]No substantive response has been received from H+H Lawyers to the letter of 18 October 2021. A copy of an email from Mr Tin‑Lok Shea dated 28 October 2021 advising that additional time was required to review the translations, and that any objections will be notified in due course, appears at page 2036 of Exhibit MJW‑43.
[31] The Green Forest parties have not otherwise provided any response including any specific comments on translations of their WeChat messages prepared by Gilbert + Tobin. Nor have the Green Forest parties provided, or indicated that they intend to provide, any English translations of their WeChat messages (NAATI‑certified or otherwise).
I have had regard to the exhibited inter‑parties correspondence referred to in Williams 33 at [20] and [21], rather than Mr Williams’ description of that correspondence. Each of Ms Chiu, Ms He, and Ms Guo are identified, and a copy of their CVs are exhibited to Williams 33. As at the date of Williams 33, none of these persons had made any affidavit in the proceeding. There are at Williams 33 [26], in summary form, statements of inquiries made about the cost in having the communications translated by a NAATI‑certified English translator, estimated to be at least $100,000, and that translations would likely be in the hundreds of thousands of dollars to complete. I receive this evidence as a loose estimate of anticipated costs, noting it suffers from the defects of a lack of specificity, and that there are no supporting documents as to the inquiries that were made.
From Williams 33, it is relevant, in my view, and I accept, that the course the applicants’ solicitors have taken is to obtain translations of the WeChat communications by persons, namely Ms Chiu, Ms He, and Ms Guo, each of whom work in Gilbert + Tobin’s Electronic Review Team and do not have any other involvement in the proceeding, that no one else has had any input into those translations, and that the translations have not been provided to the applicants. Further, and relevantly, the cost of the translations has been absorbed by the applicants’ solicitors and not charged to the applicants. Mr McMeniman informed the Court, and I accept, that the costs would not form part of the applicants’ costs or the parties’ costs in the proceeding.
Mr Williams provided a further affidavit sworn 23 March 2022 (Williams 35). Relevant to the present issue, Mr Williams attests that he has caused affidavits to be prepared by each of Ms He, Ms Chiu, and Ms Guo in which they set out their respective background, skills, and qualifications which have been filed in the proceeding on 17 March 2022 (together the March 2022 translator affidavits), and that as at the date of Williams 35, the Green Forest parties have not provided any substantive response or specific comments on the translation of the Mandarin WeChat communications, nor indicated whether they intended to provide any other English translations since an exchange of inter‑partes correspondence in October 2021.
This leads me to refer to the Green Forest parties’ solicitor, Mr Tin‑Lok Shea’s inter partes email response to the communication in October 2021 (of the 1400‑pages of Mandarin WeChat communications, and together with the 600‑pages of Mandarin WeChat communications and the translations) in which email Mr Shea informed the applicants’ solicitors that, and I paraphrase, he would communicate what objections his clients would make in due course.
It arises from this overview that the first tranche (the 600‑pages of communications), and the second tranche (the 1400‑pages of communications), have taken divergent courses from their origin among the discovered documents produced by the Green Forest parties.
The first tranche – evidence and consideration
In relation to the first tranche, I am satisfied on the evidence before me that:
(a)the translations were provided to the respondents by at least 16 February 2021;
(b)they were included in the draft and final Court Book; and
(c)the issue has been squarely raised in objections to the admissibility on the basis that the translations were not evidenced by any person attesting to having done the translations and having the necessary expertise.
In sum, Mr Parish objects to the first tranche and submits that the translations of both tranches are inadmissible because of the way that the translations have been sought to be put in evidence, namely, not by a NAATI‑certified expert, and separately but relatedly, not by the persons who translated the communications giving any other explanation or evidence why they should be considered an ad hoc expert, or otherwise possess appropriate expertise. He submits that leave to the applicants to now adduce evidence of the translators by way of the March 2022 translator affidavits should not be granted, and in any event those persons are not NAATI-qualified or independent.
In my view, the issue for determination in relation to the first tranche is principally a question of admissibility, and as part of that question whether the applicants’ should now be granted leave to rely on the March 2022 translator affidavits. I consider it is reasonable to infer that the recent translator affidavits are made in response to, and seeking to answer the objections to the admissibility of the first tranche and the second tranche, noting that the applicants’ have not obtained new translations by NAATI‑qualified translators.
In relation to the balance of the WeChat communications, namely, the second tranche (1400‑pages of Mandarin WeChat communications and translations), there is an anterior issue, namely, whether the statement in Williams 28 that the applicants intend to tender at hearing the WeChat material produced by Green Forest once translated constituted notice (see above at [11]), whether the inclusion in the proposed tender bundle of the WeChat communications (but not translations) communicated on about 18 June 2021 provided further or other notice, and then what follows from the fact that only with the service of Williams 33 on 6 December 2021 that all translations were provided.
Relevant to the translation issue is the issue of the conduct of the proceeding more generally, and of compliance with orders of the Court, in the light of the object and purpose of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
In sum, the explanation given by Mr Williams in his evidence (referred to earlier in these reasons) is that:
(a)the material was always intended to be tendered by the applicants in the proceeding;
(b)the translations were extremely time-consuming;
(c)they have been undertaken by persons employed by the applicants’ solicitors but not being part of the applicants’ legal team; and
(d)the cost of the translations is estimated, if it were to be completed by a NAATI-certified translator(s), to be in the order of $100,000 and likely to be considerably more.
I have regard to this evidence in the light of some further matters on the question of leave. First, this proceeding is part-heard and still in the applicants’ case, secondly, that the proceeding includes and always has included parties who may communicate in Mandarin or Cantonese, and that documents have been produced by them in discovery but over certain periods of time, and I do not further understand that either party, or counsel to say that these WeChat communications (either the first or the or second tranche), give rise to any cause of action, or support any cause of action that is not pleaded and has not been the subject of defence or cross-claim.
Case management rules and obligations
I am conscious that case management principles and obligations applicable to the conduct of the proceeding are as set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Section 190 of the Act sets out the overarching purposes of the civil practice and procedure provisions applying in this Court. Those purposes are “to facilitate the just resolution of disputes (a) according to law, and (b) as quickly, inexpensively and efficiently as possible”, and pursuant to s 190(2)(e), including the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. It is an obligation that I have as a Judge of this Court to interpret, apply, and exercise any power or duty conferred in a way that best promotes that overarching purpose.
Pursuant to s 191(1):
The parties … must conduct the proceeding… in a way that is consistent with the overarching purpose.
Pursuant to s 191(2):
A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2)… on the party’s behalf:
(a) take into account the duty imposed by the party by subsection (1); and
(b) assist the party to comply with the duty.
Qualifications and experience of translators
I now set out the qualifications and experience of each of Ms Chiu, Ms He, and Ms Guo, which they each give in their respective affidavit.
Ms Chiu’s evidence is to the following effect:
(a)she is admitted as a lawyer of the Supreme Court of New South Wales and has been since April 2017;
(b)since March 2020 she has worked as a GTDocs Lead Reviewer at Gilbert + Tobin. In her roles there she is required to use her English language skills to review documents and communicate orally and in writing with colleagues across multiple different practice groups;
(c)she is a native Cantonese speaker and has studied and gained qualifications in English, Chinese, and Mandarin;
(d)she was born in Hong Kong and raised in a Cantonese-speaking household from birth, and Cantonese is her first language;
(e)she began to learn English in kindergarten, and her classes thereafter included classes in both Cantonese and English, as well as Mandarin, and writing Chinese. This continued through her kindergarten, primary, and secondary schooling;
(f)she undertook the Hong Kong Certificate of Education Examination in form 5, which exams were delivered in English and included a Chinese written component;
(g)in October 2010, she moved to Sydney, Australia, undertook an intensive English course as part of the University of Sydney foundation program, was accepted into a Bachelor of Law/Bachelor of Arts double degree at the University of Sydney; her undergraduate degree subjects were delivered in English;
(h)in 2012, she also undertook an academic unit in Chinese, conducted written assessments in Chinese, and received a distinction grade for the course;
(i)she has undertaken additional English language assessments and has a very good proficiency in English; and
(j)Ms Chiu (and I note also each of Ms Guo and Ms He, and consistently with the evidence of Mr Williams) confirms that GTDocs, the business group in which each of the translators sit, is an entirely separate practice group within Gilbert + Tobin to other practice groups including Mr Williams’ intellectual property practice group. Each of the translators reports to the head of GTDocs, Mr Michael Song, who in turn, reports to another Gilbert + Tobin partner than Mr Williams.
Turning to Ms He, her evidence includes:
(a)Ms He is a lawyer of the Supreme Court of New South Wales admitted since June 2018;
(b)she is a native Mandarin and Chongqing (a Mandarin dialect) speaker, and has studied and gained qualifications in Chinese and English;
(c)she was born in Chongqing, China, and raised in a Mandarin and Chongqing dialect‑speaking household from birth. Mandarin is her first language;
(d)she learnt to write Chinese from around age 5;
(e)all her school classes were conducted in Mandarin and Chongqing dialect. At kindergarten, she learnt the English alphabet and took classes in speaking English from fifth grade, around age 10. As part of her high school curriculum, she undertook English classes, and college entrance exams in core subjects in both Chinese and English. All classes other than the English class were conducted in Mandarin and Chongqing;
(f)her Chinese tertiary qualifications include a Bachelor of Laws, obtained in the period September 2010 to June 2014, delivered in Mandarin and obtained from the Binhi School of Foreign Affairs, Tianjin International Studies University, Tianjin China and a business immersion program, in January 2012, delivered in English;
(g)she has undertaken from University of Hong Kong (Hong Kong SAR China) English language assessment courses, including Band 4 and Band 6 of the College English Test, (a national English-as-a-foreign-language test in China) noting that Band 4 is a pre‑requisite for the issue of an undergraduate degree for some universities in China. In her case (a Bachelor of Laws), passing Band 6 is not compulsory, but it is used to demonstrate English proficiency above Band 4;
(h)during her undergraduate degree, Ms He undertook eight English units of study;
(i)in 2015, she undertook the International English Language Testing System (IELTS), English language test for study, migration and work purposes, accepted worldwide, and scored Band 7 out of 9 Bands, demonstrating good proficiency; and
(j)in October 2015, she moved to Sydney, Australia, and commenced a 15-week intensive English language program delivered by the Centre for English Teaching at the University of Sydney. On a successful completion of that program, she was accepted into a Juris Doctor at the University of Sydney, commencing February 2016. All units in both the English language program and her Juris Doctor were delivered in English. In 2018, she undertook the Pearson PTE academic test.
Turning to Ms Guo:
(a)she is admitted as a lawyer of the Supreme Court of New South Wales since 14 August 2020;
(b)since June 2021, she has worked as a GTDocs Lead Reviewer lawyer at Gilbert + Tobin, and has the same role requirements as Ms Chiu (as does Ms He);
(c)Ms Guo is a native Mandarin speaker, and has studied and gained qualifications in English and Chinese;
(d)Ms Guo was born in Wuhan, China, and raised in a Mandarin-speaking household from birth. Mandarin is her first language;
(e)her additional degrees, not including other programs obtained in China, include a Bachelor of Law ( by study from September 2009 to June 2013), delivered in Mandarin, obtained from the China University of Geosciences, Wuhan, China and a Masters of Law obtained over the period from September 2013 to June 2015, delivered in Mandarin, and obtained from Renmin University of China, Beijing, China;
(f)her language study and writing in English is similar to that of Ms He, and Ms Chiu. She too, has undertaken English language assessments in Band 4 and passed Band 4 and Band 6 of the College English Test. In 2013, she undertook a standard English test, as that was a prerequisite for entry to her graduate study master’s degree in China. She passed her first entrance examination in English at a sufficiently high level for the University to waive the requirement to take English classes during her postgraduate study; and
(g)in 2016, she took the IELTS test and scored Band 7.5. In around January 2020, she undertook the Pearson PTE academic test and scored 90 out of 90, indicating superior proficiency in the English language. I note that her evidence is that the Pearson PTE academic test Ms Guo and Ms He attest to is an English language proficiency test used by the Australian Government for visa assessment.
I consider that for today’s purpose it is sufficient to set out the translators’ qualifications as I have done above, and that it is unnecessary to further describe the curriculum vitae of each of the GTDocs Lead Reviewers.
Translations of the Mandarin WeChat communications
In sum, Ms Chiu attests that she spent 397 hours on the translations, and the amount of time she spent translating a page varied depending on the content and complexity of text on the page. It is sufficient to note that Ms Chiu’s translations were subject to the following instructions: to only translate pages that related to the supply, manufacture or distribution of Freezeframe products. However, due to the informal nature of the WeChat correspondence, Ms Chiu states she has translated pages which may not expressly reference Freezeframe products, but relate to them as a result of their context. In cases where a Chinese colloquialism or idiom was used, Ms Chiu provided a direct translation of that Chinese colloquialism. For complicated sections of translation, she conferred with each of Ms He and Ms Guo to ensure that her translation was accurate.
Ms Guo commenced her translations in June 2021 which is when she commenced working as a GTDocs Lead Reviewer lawyer at Gilbert + Tobin. Ms Guo spent 178 hours on her translations, and her instructions are consistent with those to which Ms Chiu attested.
Ms He spent 19 hours on her translations. Her evidence is to the same effect as Ms Chiu’s as to her instructions and how she approached the translation. Ms He conferred with Ms Chiu, as Ms Chiu attests, and Ms Guo conferred with Ms Chiu, as Ms Chiu deposes.
Mr Chen’s affidavit
Mr Chen is the second respondent, a director of the first respondent, and is also the partner of Ms Li, the seventeenth respondent. In his most recent affidavit, made on the translation issue, Mr Chen puts himself forward as an expert and states he has read and agrees to be bound by the Harmonised Expert Witness Code of Conduct. Mr Chen is a native speaker of both Cantonese and Mandarin, whose first language is Cantonese, and was raised in a Cantonese speaking household, initially in Foshan, China. I should note, for completeness, that Mr Chen’s qualifications include a bachelor’s degree in Resources, Environment and Urban Planning Management in China, in which all units of study and exams were held in Mandarin, and that he studied a master’s degree in Accounting and Finance at the age of 24 in Australia, but does not identify where.
For the purposes of today, I accept Mr Chen’s expertise in written Chinese, and in English, including through the course of some 84 paragraphs, where Mr Chen identifies the applicants’ translation (which I understand it to be the translations prepared by one or other of Ms Chiu, Ms He or Ms Guo), and provides what he considers to be the more accurate and contextually appropriate, or contextually correct translation of the words. In many instances, he does not say why he believes his translations to be more contextually appropriate or correct, but in some instances he does provide some reasoning.
Although Mr Chen does not attest to how long he took for his translations, it is apparent from his affidavit that he has reviewed the whole of the approximately 2000 Mandarin WeChat communications and English translations. There does not appear to be any explanation by Mr Chen, however, why it has taken him from October 2021 to March 2022 to provide his affidavit. I consider that it is reasonable to infer that the time that Mr Chen may have had to take is in the order of the time taken by Ms Chiu, Ms He, and Ms Guo evidenced in the March 2022 translator affidavits.
I consider that by the affidavit of Mr Chen, the Green Forest parties have sought to act consistently with the obligations set out in s 191(1) and (2) of the Act.
In sum, I accept that each of the Gilbert + Tobin translators, Ms Chiu, Ms He and Ms Guo, and Mr Chen have established, by reason of their experience, expertise sufficient to make admissible the translations to which they have attested. Where there is a contest of translation the weight I give to these translations, however, and whether at this stage those translations should be accepted as provisionally relevant, may depend upon the oral evidence that Mr Chen or other persons may give, and the submissions that are made at that time.
For the present purpose of admissibility, I am satisfied the translators’ experience I have identified above, the time that has been expended and is evidenced in undertaking those translations, the inferences that I am prepared to draw favourably to Mr Chen that it would take some time for him to review and provide his translations, that translation is a task that I consider is appropriate to have been undertaken by the parties: For these reasons, I am satisfied that the Mandarin WeChat communications and their translations should not be excluded at this point in time, either under s 135 of the Evidence Act, or the evidence limited pursuant to s 136 of the Evidence Act.
Requirement for documents to be translated by a NAATI‑certified translator
Mr Parish and his solicitors raise as a preliminary point that the first obligation of the applicants was to obtain NAATI-certified translations. I do not consider that in all cases the first step for a party seeking to obtain a translation, or to put in evidence an English translation of foreign language written material, is invariably or necessarily that it be obtained by means of an externally commissioned person who has specific NAATI‑certified English‑Mandarin, or English‑Cantonese, or English‑Chinese, qualifications.
This is not to say that there are not circumstances that may require, or where it may be more appropriate that a NAATI‑certified translation be tendered. In this case, and indeed for this Court, the question of the form in which evidence is adduced or sought to be adduced is to be determined having regard to the overarching purpose and obligations articulated in the Act and the GFL Rules, the costs, the time, and the point in the proceeding at which notification is given of a particular translation, and any consequence that might follow if a particular translation was not obtained.
In the present instance, in respect of the first tranche, the applicants’ solicitors took the step of obtaining translations by a team of legally qualified native Chinese (Mandarin and/or Cantonese) speaking lawyers who formed an entirely separate team to the intellectual property team led by the applicants’ solicitor, Mr Williams, and who comprise the applicants’ legal team for the conduct of the proceeding.
The translations in the first tranche were made available to the respondents in mid‑February 2021. There is no explanation by Mr Chen as to why he did not review those translations (or any evidence if he did so), and there is no evidence of what instructions were provided, if any, to his legal representatives at that time, or at any other time, regarding the translations. I am prepared to assume that by mid‑June 2021 the applicants were put on notice that the Green Forest parties objected to the WeChat communications’ admissibility on the basis that the evidence was not admissible as it was not provided by way of expert evidence, namely by a person who had attested to their qualifications (specifically NAATI certification) and the steps they took in undertaking the translations.
That objection to admissibility has now been addressed by the applicants in relation to the 600‑pages of Mandarin WeChat communications, but in my view only by the provision of the March 2022 translator affidavits. On the other hand, Mr Chen has now provided his evidence as to his translation of those 600‑pages of Mandarin WeChat communications.
I consider that translation is a matter of expert evidence. I accept that a NAATI-certified translator is not the only person who could be an expert translator.
Ruling as to the 600‑pages of WeChat communications and translations
I will make the following ruling in relation to the first 600‑pages of Mandarin WeChat communications: objection having been taken to the admissibility of those communications, the objection is upheld in the first instance, in that the evidence, as at the date of the objection, did not satisfy the requirements for expert evidence.
Butera and other cases since then make clear that an expert may acquire expertise other than by being certified as an expert. If I have not already made it clear, I consider that each of the translators has demonstrated their expertise for the translations they make. As I have indicated, I accept that each of Ms Chiu, Ms He and Ms Guo have appropriate and sufficient expertise, as does Mr Chen.
I consider that notice having been given of the applicants’ intention to rely on the 600‑pages of Mandarin WeChat communications and translations that Mr Williams identified as at 16 February 2021, the intention to tender all of the WeChat material notified by inclusion in the Court Book, and by now addressing, or seeking to address, the objections raised by the Green Forest parties, leave should be granted to the applicants to read the March 2022 translator affidavits to meet the objections to the 600‑pages of Mandarin WeChat communications and their translation.
Mr Parish raised issues of inadequacy of the applicants’ explanation for the course that was taken, and I infer for the delay by Mr Williams. Mr Parish also made criticisms to which I have already referred of the lack of specificity and content, and documentary support, in relation to the cost, should external translators be obtained, specifically NAATI-certified translators.
I accept that the explanation is not a fulsome explanation. Having regard, however, to the content of each of the March 2022 translator affidavits and to the time taken by Mr Chen, and having also had regard to the ultimate state of the translation evidence in relation to the 600-pages of Mandarin WeChat communications, I am satisfied that the dispute is about the weight and accuracy of the translations, at least in terms of amount, not necessarily in terms of importance, is reduced to approximately 86 instances of the whole 2000 pages of communications. In the exercise of my discretion, and noting this point in the trial, I do not consider that any asserted prejudice put forward by the respondents is such as lead me to exclude the evidence.
I have had regard to a further matter, and that is whether this evidence at this point in time is put forward in a documentary form, as it now is, or would be sought to be adduced orally by taking Mr Chen or other Green Forest witnesses to particular communications under cross‑examination, and the time that thereby would be taken up in the course of the hearing which would expose not only the parties appearing before me today, but also the other parties participating in the hearing, to considerable expense and effort. I consider that my discretion is appropriately exercised by granting leave to overcome the objections to the first tranche, and to admit the 600‑pages of Mandarin WeChat communications and their translations, subject to weight.
Consideration and ruling as to the 1400‑pages of WeChat communications and translations
I turn to the question of the second tranche – the remaining 1400‑pages of Mandarin WeChat communications and translations. During the course of the hearing today I have canvassed with counsel what would be the outcome for the parties, and the conduct of the trial, having regard to the balance, and the issues of relevance and weight were I to admit in one form or another the 600‑pages of Mandarin WeChat communications and translations (the first tranche) but exclude the 1400‑pages of Mandarin WeChat communications and translations (the second tranche). I have, on balance, come to the conclusion that I should also grant leave to the applicants to adduce evidence in relation to the translation of the second tranche, and to admit those WeChat communications and the 1400 pages of translations.
The reasons why I have reached this conclusion, as well as my acceptance of the qualifications of the translators, is notwithstanding that until 18 October 2021, the respondents were not provided with any translations of these 1400‑pages of Mandarin WeChat communications. It seems to me that the possible prejudice that the respondents would suffer includes that the evidence of the respondents would have been prepared on the basis of the 600‑pages of Mandarin WeChat communications and their translations that they did have, and knowing of the other 1400‑pages of Mandarin WeChat communications but not having the English translations, and that certain forensic decisions may have been made at that time. Even though it has not been put in these terms by Mr Parish, I consider that the applicants are here seeking leave to not only remedy evidence which has been objected to, but to supplement the evidence which has been adduced.
I accept that the second tranche was notified by inclusion in the “agreed bundle”, and I accept that it was notified in general terms by Mr Williams’ statement on 16 February 2021 at [8] of Williams 28. It is supplementary evidence.
I am very conscious however, that excluding the translations of the remaining 1400‑pages of Mandarin WeChat communications (the second tranche) may do a prejudice to one or other of the parties because of the possible incomplete nature of those communications that have been translated, whether being by NAATI-certified translators on behalf of the respondents (not the subject of the present objections), or by Gilbert + Tobin translators whom I have referred to in these reasons (namely the first tranche).
I am also conscious that a just resolution of the proceeding, albeit taking into account speed, cost, and efficiency appears in this case to land on the side of more fulsome tender and adducing of evidence at hearing, albeit that this will also require very focused submissions by the applicants (in the first instance) so that the Court, and the respondents, will be able to understand, and the Court will be able to determine where all the WeChat communications sit within the case brought and defended by the parties, including in both the application and the cross-claim.
I have on balance concluded in relation to the 1400‑pages of Mandarin WeChat communications and the translation of those communications which the applicants seek leave to supplement their evidence-in-chief, that leave should be granted to the applicants, and I should admit the material, subject to weight.
Costs and further conduct
There remains the question of costs, which I propose to touch only briefly today. As Mr Parish submitted, it is at all times the applicants’ onus, at least evidentiary onus, to bring to the Court evidence in admissible form and to give parties adequate notice of the material. I accept that the tender bundle included the 1400‑pages of Mandarin WeChat communications. I accept that in Williams 28, Mr Williams put the parties and the Court on notice that translations were being obtained, would take time, and that at all times the translated material would be sought to be tendered in the applicants’ case.
In my view, and with the benefit of hindsight, the position in relation to the WeChat material could have been approached by both parties differently, including by co‑operation between the parties’ legal representatives at an earlier stage.
Having regard to what has fallen from me today, the only order I will make is that the parties are to confer and to bring in proposed short minutes, including to deal with the issue of costs, at a time to be decided after consultation between Chambers and the parties.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird. Associate:
Dated: 26 April 2022
SCHEDULE OF PARTIES
SYG 2771 of 2019 Respondents
Fourth Respondent:
FREEZEFRAME CHINA CO PTY LTD ACN 621 016 975
Fifth Respondent:
KEFEI (EMILIO) WANG
Sixth Respondent:
PASCAL SKELIN
Seventh Respondent:
EPAQ INTERNATIONAL PTY LTD ACN 608 870 588
Eighth Respondent:
QUANJIAN PTY LTD
Ninth Respondent:
YIPING YANG
Tenth Respondent:
TAOYU PAN
Eleventh Respondent:
KEFEI (IVAN) WANG
Twelfth Respondent:
ZUREN INTERNATIONAL PTY LTD
Thirteenth Respondent:
SIQI HUO
Fourteenth Respondent:
MR YULIN WANG
Fifteenth Respondent:
E-GO CHANNEL PTY LTD
Sixteenth Respondent:
AUSTRALIAN VITAMIN PLUS PTY LTD
Seventeenth Respondent:
YAN (CYNTHIA) LI
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