Nguyen v Nguyen & Vu Publishing Pty Ltd & Ors [2004] NSWSC 1166

New South Wales Supreme Court

CITATION : Nguyen v Nguyen & Vu Publishing Pty Ltd & Ors [2004] NSWSC 1166 HEARING DATE(S) : 30 November 2004 JUDGMENT DATE : 30 November 2004 JURISDICTION: Common Law JUDGMENT OF : Sperling J at 1 DECISION : Documents allowed into evidence without qualification.

CATCHWORDS : Evidence - opinion evidence - expert evidence - translation from a foreign language - whether reasons for opinion of witness required for admissibility CASES CITED : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Thuyen Nguyen PARTIES : Nguyen & Vu Publishing Pty Ltd Van Thang Nguyen (also known as Hong Anh Nguyen) Tsien Huu Nguyen (also known as Lao Ngoan Dong) FILE NUMBER(S) : SC 20280/03 COUNSEL : Mr C A Evatt for the Plaintiff Mr R G McHugh for the Defendants SOLICITORS : Ledinh Lawyers for the Plaintiff Corrs Chambers Westgarth for the Defendants

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

Sperling J

Tuesday, 30 November 2004

20280/03 Thuyen Nguyen v Nguyen & Vu Publishing Pty Ltd & Ors

Judgment No.1 – On admission of Exhibits B & D 1 His Honour: Exhibits B and D have been admitted into evidence in the course of Mr Evatt's opening subject to proof. A formula was adopted as a matter of convenience on the understanding that Mr Evatt should be free to address the jury at that stage concerning the case he intended to make and the understanding recognised that there were certain respects in which the parties were at issue as to the correct English translation of certain passages in the documents. 2 The situation that has now been reached can be seen as the formal tender of those documents afresh with a view to having them in evidence without the qualification or a request to the court for a ruling that the qualification should be removed. I think it preferable to treat the occasion as being one of the tender of the translations afresh on the basis that the plaintiff wishes to have them in evidence without qualification. I approach the question on that basis. I propose to allow the documents into evidence without qualification. My reasons for so doing are as follows: 3 It seems to me the translation evidence is opinion evidence of a particular kind that is simply not amenable to the application of the principles enunciated in such cases as Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where it has been said that it is necessary to show the connection between the expertise of the witness and the witness' opinion in order to make the evidence admissible as opinion evidence. 4 In a case of translation evidence the connection is self-evident. The witness being an expert in the sense of being familiar with the two languages gives, as his opinion, simply that the words in one language have a certain meaning in another. That does not seem to me to be amenable to the requirement that is recognised in relation to other forms of expert evidence and perhaps in relation to expert evidence in the generality. Whether this is seen as an exception or merely as the application to particular circumstances of general principle it is not necessary to decide. –oOo-