RISK WATCH
Culturally and linguistically diverse clients: Ongoing challenges for lawyers (Part 1) GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS
L
anguage, and the understanding of language by clients, are critically important aspects of the practice of the law. Legal professional indemnity insurers across Australia have reported an increase in claims resulting from language issues. This is hardly surprising, given the diverse multi-cultural make-up of modern Australian society - the Court forms under the Uniform Civil Rules (Forms 31-33) now provide for multi-lingual Notices of Claim covering 11 different languages, including English. Somewhat surprisingly, (apart from English) the only European languages included are Albanian and Greek - Italian, Spanish, German, French, Polish, Russian etc. do not have their own Forms. As is stated in the Preamble to the Courts Administration Authority’s Interpreter Protocols: “Fundamental principles of fairness and equity require that no person appearing before a Court should be disadvantaged in the proceedings or in understanding the procedures because of a language or other communication barrier.” The steps necessary to ensure that disadvantage is not visited upon clients who do not fully understand English present a number of challenges for lawyers. The Protocols provide that legal practitioners appearing in proceedings when an interpreter is assisting should adjust their advocacy accordingly. Some of the suggestions which are made are as follows: • short sentences are preferable and complex questions should be avoided • time must be adjusted to take account of the time needed for interpreting
28 THE BULLETIN December 2021
• the interpreter should be able to finish the particular interpretation. Do not cut the interpreter off • avoid the use of negative assertions in questions as they are frequently a source of miscommunication • minimise the use of innuendo, implied accusations and figurative language as these linguistic features are difficult to interpret accurately • when words have multiple meanings, be explicit about which meaning is to be relied upon. The Protocols provide that an interpreter should be engaged in any proceedings where a party or witness who speaks limited English, has difficulty communicating in English or is hearing impaired in a courtroom context is required to appear in the court or has any other business before the court. It can be seen that this is a fairly low threshold to meet before an interpreter is required. It will generally be up to the legal practitioner acting for a client or relying upon a witness who needs assistance from an interpreter to arrange that interpreter. This obligation is not something to take lightly. In Zhou v Zong [2018] FCCA 3393 the Court ordered that the costs thrown away by reason of an adjournment of a trial be paid by the lawyer personally where the adjournment was necessary in part because the lawyer had not arranged for an interpreter for his client’s evidence to be present at the commencement of the trial. It should not be supposed that problems of language are necessarily solved by the lawyer involved being able to speak the language in question, and especially not where court proceedings are concerned. In Rogic v Samaan [2018]
NSWSC 1464, Kunc J made a number of observations on taking affidavits from culturally and linguistically diverse witnesses. That case involved a number of witnesses who spoke mainly Serbian. Their actual evidence in court was provided through a NAATI accredited interpreter however their affidavit evidence (being their evidence in chief at the trial) was prepared by the solicitor for the plaintiff. The solicitor spoke both Serbian and English. He took instructions from the witnesses in Serbian and then translated those instructions himself into English and prepared the affidavits in English. He then read the affidavit back to the relevant witnesses in English and translated it back to them in Serbian to obtain their assent to its contents. His Honour said: “…I am not suggesting [the] solicitor acted unethically. I assume that he did not retain a qualified, independent interpreter because he was trying to save costs by taking advantage of the fact that he spoke Serbian. Nevertheless, what was done is not a practice which is likely to maximise the prospects of justice being done and should be avoided when the witness is a culturally and linguistically diverse (CALD) person unless there is no practical alternative (for example, due to lack of communication facilities in a remote region, or urgency).” Kunc J said there are at least two reasons why a bilingual solicitor should not interpret the deponent’s evidence to produce an affidavit in English: “157. First, ‘research demonstrates the superior performance of trained interpreters over untrained bilinguals.’ (citation omitted) 158. Being bilingual is not the same thing as being an interpreter (spoken words) or
