Zhang v King David Investments Limited

[2016] NZHC 1479

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2014-404-680
[2016] NZHC 1479

BETWEEN

JIE ZHANG
Plaintiff

AND

KING DAVID INVESTMENTS LIMITED
First Defendant

JIN YUE YOUNG
Second Respondent

Hearing:	On the papers
Judgment:	1 July 2016

JUDGMENT OF DUFFY J

Solicitors/Counsel:
Doctor F C Deliu, Justitia Chambers, Auckland
Muller Law, Pakuranga Plaza
Galbraiths, Howick

1. An issue has arisen regarding the provision of a Chinese interpreter for the purpose of examining a witness in these proceedings. 

2. The First Defendant contends that since the interpreter will be required in order to assist the Plaintiff in giving evidence, it is the Plaintiff who bears the responsibility of providing the interpreter.  However, counsel for the Plaintiff, Mr Deliu, submits that the recent decision Li v Commissioner of Police[1] is authority that where necessary the Court must provide an interpreter in civil proceedings.

   [1]Li v Commissioner of Police [2016] NZHC 1383.

3. The decision in Li v Commissioner of Police arose in the circumstances of an application to vary a restraining order.  The Commissioner of Police sought to cross-examine the applicant in relation to an affidavit he had filed in the proceeding.  This necessitated the provision of an interpreter.  However, due to the applicant’s impecuniosity – arising from the very restraining orders which the applicant sought to vary – the applicant could not pay the cost of the interpreter.

4. Wylie J noted that the normal practice in civil proceedings was that the party calling a witness should be required to pay the costs of providing an interpreter.  He expressed some doubt as to whether that practice was consistent with s 80(3) of the Evidence Act 2006, which provides that a witness in a civil proceeding is “entitled to” communication assistance.  He found that:[2]

   The implication must be that, in appropriate cases, the costs of providing that assistance fall on the Crown.

   [2]At [17].

5. Mr Deliu relies upon this finding to support a general proposition that the Court must provide an interpreter in civil proceedings.  However, I do not think that the judgment can or should be read to support such a wide principle, for a number of reasons.

6. First, I am not persuaded that s 80(3) of the Evidence Act should be read to mean that a party in a civil proceeding is entitled to the provision of an interpreter.  Rather, I consider that the section should be more narrowly interpreted to mean that a party in a civil proceeding is entitled to have access to an interpreter, in the sense that if a party requires the assistance of an interpreter, the Court and other parties must permit that to occur.  That interpretation is compatible with the general practice that the party calling a witness should be required to pay the costs of providing an interpreter.

7. There are two further factors which, in my view, militate against the general proposition which Mr Deliu has put forward.  The first is that I am not persuaded that Wylie J’s reference to “the Crown” as a source of funds should be interpreted to mean “the Court”.  Throughout his decision, the Judge refers to the respondent as “the Crown” rather than “the Commissioner of Police”.  On that basis, I consider that Wylie J’s intended meaning was that the costs of providing an interpreter should be met by the Commissioner of Police.  That leads to my second reason for rejecting Mr Deliu’s submission; namely, that there are policy reasons why it might be appropriate to reverse the burden of providing an interpreter in cases concerning proceeds of crime.  Although such proceedings are undoubtedly civil in nature, they share some of the characteristics of criminal proceedings, specifically the power imbalance between an individual and the might of the state.  Furthermore, the plaintiffs in such proceedings will often suffer from a lack of funds due, as I have noted above, to the very restraining orders which the plaintiff seeks to vary or overturn.  I consider that those factors may weigh in favour of a narrow exception to the general principle that the party who calls a witness in civil proceedings should pay the cost of an interpreter, where necessary.

8. This case is a routine civil dispute between private persons.  I do not see any reason why the Court should depart from the general practice that the party who calls a witness must pay the costs of the interpreter.  Therefore, the Plaintiff should ensure that an interpreter is provided.  In any event, the question of who bears the costs of the interpreter will ultimately be determined by the outcome of the case in accordance with the principle that costs follow the event.

   “Duffy J”