11 August 2017
Discovery - Documents in a foreign language
In the discovery process are we obliged to translate a document written in a foreign language, or can I simply provide it to the other party and they are at liberty to translate it themselves if they wish?
It's my understanding that we have to translate a document before trial, but are there any rules obliging us to do so for discovery?
NB. The name of the document is provided in the affidavit of documents.
Thank you for the question.
The Supreme Court rules do not expressly require a party to translate a document written in a foreign language prior to providing the document in discovery. Additionally, there does not appear to be any Australian authority or direction on this question.
In the 1991 UK case of Bayer AG v Harris Pharmaceuticals Limited [1991] FSR 170 the defendant sought an order requiring the plaintiff to provide translations of 83 documents (800 pages) which were in German and had been produced on discovery. Hoffman J in dismissing the motion stated that ‘there is no obligation upon the party giving discovery of a document in a foreign language to provide a translation of that document’. This case does not appear to have been either approved or disapproved in any Australian court.
There therefore appears to be sufficient basis for discovering documents in a foreign language without translation. Note however that the deponent of the affidavit of discovery will have to either themselves be able to read the document in the foreign language or have somebody translate it for them orally so that they can make an assessment of whether it is discoverable and so that they can sufficiently describe it in the affidavit.
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