Walker, E.A.L v Canon Australia P/L

[1994] FCA 238

23g J ~ Y

JUDGMENT NO. .., ...... ,., .... , eo,,.m., .... !

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG52 of 1992

1

GENERAL DIVISION 1

BETWEEN:  EDWARD ALLAN LAURIE WALKER
First Applicant
HANNI-AUSTRALIA PTY LTD
Second Applicant
CANON AUSTRALIA PTY LTD
First Respondent
CANON FINANCE AUSTRALIA PTY LTD
Second Respondent

CORAM : HILL J

PLACE :	ADELAIDE
DATED:	23 MARCH 1994

EX TEMPORE REASONS FOR JUDGMENT

By motion, the respondents in these proceedings, Canon Australia Pty Limited and Canon Finance Australia Pty Limited, moved the Court for orders, inter alia, that any disbursements incurred by them in respect of fees paid for the provision of translations of certain discovered documents be costs in the cause but be reimbursed pro tem by the applicants as to one half. The motion arose in the following circumstances. I l

t

An order for discovery was made and in the ordinary	;
I

course the respondents discovered certain documents which were

in the Japanese language. Not surprisingly, the applicants	i
I- I
I
wished to know the contents of them.	An abstract was provided

. I_

by the respondents purporting to set out the salient features of b

the documents. Of necessity this abstract was somewhat brief. It appears that the documents in question were of a highly technical nature and although the respondents had in their employ persons capable of speaking Japanese there was no-one who could, at least within the available time, translate the technical material which was produced.

An order was made by O'Loughlin J that the respondents provide translations. That order was made, it seems, after the applicants had requestedtranslation of certain of the abstracted documents. The actual translations were performed by a company relatedto the parent company of the respondents which apparently acts as a commercial translator and the translations were said to have been prepared at normal commercial rates.

There has been no evidence filed on the part of the applicants suggesting that the rates charged for the translation were other than ordinary commercial rates. It is in these circumstances that the respondents seek to require the applicants

that ultimately the costs of the translation will be costs in the	to pay now one half of the costs of that translation, accepting	cause and payable in accordance with such cost order as may
ultimately be made.
The Federal Court Rules are silent on the question of discovery of documents in a foreign language. They presuppose, no doubt, the general law which has evolved of ensuring that both sides have a proper opportunity of ascertainingthe existence of all documents in the possession or power of a party to the proceedings relevant to the issues which arise on the pleadings. The Federal Court Rules deal separately with discovery and inspection. Although it might be thought that discovery and inspection are closely related, both endeavour to ensure that litigation does not proceed in what the Administrative Appeals Tribunal, presided over by Davies J, has described as a "mutual
h a l f l i g h t " : Murtagh v Federal Commissioner of Taxation (1984)
84 ATC 4516 at 4527-28.
The submissions of counsel forthe applicants proceeded substantially upon the basis that the obligation to discover carried with it an obligation to discover documents in the English language. It was submitted that, if documents were in the possession or power of a party in another language, the obligation fell, at least initially upon the party giving discovering and ultimately inspection of that document, to arrange a translation of it.
Counsel's researches have not disclosed any cases in Australia dealing with the matter. However, the problem has arisen in the United Kingdom. The matter of translations is dealt wlth by the learned authors of the publication Discovery by Paul Matthews and Hodge M. Malek, Sweet and Maxwell, 1992, in the following passage (at 151):

"It frequently happens in modern practice that discovery is given of documents wholly or partly in foreign languages. The producing party will obviously have had to consider the relevance of the documents before discovering them. If they are

important they will . . . almost certainly . . .

need to be translated into Englzsh ... This is both time consuming to arrange, and expensive to pay for. But as a matter of law a producing party is under no obligation to provide a translation of any document at or before the time of inspection (or indeed

thereafter). "

The authority quoted forthe last mentioned proposition is Baver AG v Harris Pharmaceuticals Limited [l9911 FSR 170. That case was not one dealing with costs but dealing with the question whether a party seeking discovery of documents in a foreign language could require translation of them. I t was held that that party could not.

That being the case, the respondents in the present
case could have resisted the request to translate leaving it to

the parties requiring the translation to arrange their own

translation of the documents. To some extent that course was	foreclosed by the order made by OILoughlin J in requiring the
translation to be made. In making that order his Honour reserved the question of how the costs of that translation should be paid for now, accepting that the ultimate costs would be costs in the cause.
Neither party suggests that the question is one upon which I do not have discretion. In circumstances where there is
no obligation on a party discovering documents to translate them into English, but the costs of the translation are substantial and initially arranged by the party discovering the documents, it would be fair that the immediate costs of the translation be paid for equally by the parties, subject to the ultimate cost order.
Accordingly, I propose to accede to the respondents' motion and order that any disbursements incurred by the respondents in respect of fees paid for the provision of translations of documents discovered, where such translations have been requested by the applicants, be reimbursed pro tem by the applicants as to one half. The ultimate disbursements being costs in the cause.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Hill.

Counsel and Solicitors	D Smith instructed by
for Applicants:	Andersons Barker Gosling
Counsel and Solicitors	S Wisking instructed by
for Respondents:	Finlaysons
Dates of Hearing:	23 March 1994
Date Judgment Delivered:	23 March 1994