LSB December 2021 HR

RISK WATCH
Culturally and linguistically
diverse clients: Ongoing
challenges for lawyers (Part 1)
GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS
Language, 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
• 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
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THE BULLETIN December 2021