The question of transcriptions
6 The applicant seeks an order that the respondent provide a transcription of each file note comprising pages 369 to 908 of Exhibit AKB-3 to the affidavit of Amanda Kim Banton, sworn on 22 October 2015. The file notes were prepared by the respondent's solicitors. The applicant says that its solicitors are unable to read "a number" of these file notes.
7 In order to advance the debate on this question, the applicant provided, during the course of the hearing, a random sample of the file notes it says its solicitors cannot read. I must say that, at the hearing, I did not have any real difficulty in reading this sample. I accept that a degree of study was necessary. However, the task was by no means impossible. I can only conclude, based on the sample given to me, that the difficulties professed by the applicant's solicitors are exaggerated. After I sought to demonstrate that proposition by reading out loud those parts of the samples to which my attention was directed, counsel for the applicant suggested that, perhaps, the applicant might come back with a different selection and that the broad form of the order now sought could be confined. I propose to deal with the application in its present form which, in my view, should be refused, simply on the basis that the handwriting to which my attention was directed is not such that it cannot be read with reasonable effort.
8 The applicant referred to Reid v Wright [2014] NSWSC 904. In that case, a notice of motion was filed seeking an order that certain file notes of a solicitor, who was the defendant in the proceeding, be transcribed. The file notes had been produced in answer to a subpoena. The question of transcription was subsequently resolved by agreement, but the plaintiff sought the costs of the notice of motion on the basis that the defendant had no basis upon which to oppose the order for transcription.
9 In the course of determining the question of costs, Harrison J said (at [8]):
This dispute is bordering upon the unseemly. A moment's reflection by both parties should have led to the resolution of this tedious contest without any recourse to the Court. The Civil Procedure Act 2005 says as much. On balance, however, Ms Reid was entitled to receive a legible copy of Ms Wright's file notes sooner or later, which is an inevitable conclusion howsoever one looks at it.
10 The applicant sought to adopt that statement. However, Harrison J did not refer to any authority or provide any more detailed reasons for the conclusion to which he came.
11 The applicant also referred to Bayer AG v Harris Pharmaceuticals Limited [1991] FSR 170 (Bayer). In that case, the defendant sought an order requiring the plaintiff to provide translations of 83 documents (800 pages) in German, which had been produced on discovery in patent infringement proceedings. Hoffmann J said:
There is no obligation upon the party giving discovery of a document in a foreign language to provide a translation of that document. Mr. Carr suggested that as a necessary part of a party's obligation carefully to consider the documents in his possession with a view to deciding whether they were relevant or not he should for that purpose have a translation prepared. I do not take that view. It seems to me that a solicitor carrying out discovery can easily either himself be sufficiently familiar with a foreign language or obtain the assistance of an interpreter to give him an oral account of what is in that document sufficiently to enable him conscientiously to fulfil his duties for the purpose of discovery. There is therefore no material upon which the court could have come to the view that the fact that the plaintiffs had listed 83 documents amounting to 800 pages of German in their list meant that either they did not consider them properly or that they had translations of them.
12 The applicant sought to distinguish this case from the present on the basis that, in Bayer, the defendant could avail itself of a translator. The applicant argued that its solicitors were not in the same position. I agree that the translation of a document from one language into another represents a different case.
13 The respondent submitted that the order sought by the applicant was wrong in principle in that it amounted to a mandatory injunction against non-parties (namely, the solicitors who created the file notes) to create new documents that did not previously exist. The respondent said that his obligation was to disclose documents, not create new documents.
14 The respondent referred to Paddick v Associated Newspapers Ltd [2003] EWHC 2991 (QB). In that case, the claimant sought an order that the defendant provide transcripts of interviews, the audio tapes of which had already been disclosed. Apparently, the recordings were of poor quality. The defendant agreed to provide the transcripts. The only question was, once again, the costs of the application to provide the transcripts. Tugendhat J observed that if he had been asked to resolve the dispute on its merits, he would not have found the answer to be obvious. In the result, Tugendhat J awarded costs to the claimant, even though he felt unable to resolve the underlying issue of principle.
15 The respondent also argued that the order sought by the applicant was oppressive in that transcriptions of approximately 539 pages were sought in circumstances where the applicant's solicitors contended no more than that they were unable to read "a number" of the notes.
16 I do not have to resolve the point of principle involved in the debate between the parties. For the reasons I have given, I am not satisfied that the order that is sought is warranted.