November 19, 2019

Judges recommend changes to help Chinese litigants

As reported in NZ Herald

Research into challenges faced by growing numbers of Chinese litigants has seen judges recommend minimum standards for interpreters and changes to court processes.

Mai Chen’s Superdiversity Institute launched a study into cultural and linguistically diverse parties in the courts on Monday.

The research comprised interviews with 12 senior court judges, two retired judges of Chinese ethnicity and 20 lawyers. The 200-page report also looked at 2,000 cases where challenges had arisen due to parties or witnesses being Chinese.

While much has been made of judicial diversity to promote inclusiveness for women and Maori, issues relating to Asian parties has not been part of this conversation.

The study noted that, in Auckland in particular, the growing Asian population means judges are dealing with greater numbers of Chinese parties in the court system. In the 2018 census, 15.1 per cent of New Zealand’s population identified as Asian.

Chen said in the criminal courts, Chinese litigants would be in the courts facing drug charges because pseudoephedrine was not an illegal drug in their home country.

In the civil context, Chen said property transactions or business deals were the more common disputes Chinese people were involved in. Chinese culture meant that often in such deals there would be little documentation, meaning a judge would have to rely on oral examination of witnesses, which could be difficult due to language issues.

One judge interviewed spoke of “increasingly seeing cases where large commercial transactions had been completed orally or with the agreement ‘written on the back of an envelope.'”

Judges also noted that some Chinese litigants choose to represent themselves and their challenges were considered more acute than for other litigants in person.

The report recommended enhanced pre-trial and case management processes in cases with Chinese or linguistically diverse parties and having the same judge and registrar throughout.

“Judges may need to be more willing to admit relevant evidence when it is presented in less traditional formats, and to decide the particular issues being raised by the parties,” it said.

The report recommended that interpreters be appointed as officers of the court, as that would make it clear they were responsible to the court and not any particular party. It also said they should be certified and that the justice ministry should maintain a pool of duty interpreters.

The study noted there are no Chinese judges in New Zealand and none are known to speak Mandarin or Cantonese.

Asked what she planned to do since launching the report, Chen said she wasn’t going to continue to lobby for changes as she had already set out the facts.

“I don’t have a plan, the Superdiversity Institute provides a fact-full approach and its not my job to express a view, I’ve set out the facts.”

At a launch event last night held at Buddle Findlay’s Auckland office, Meredith Connell partner Steve Symon said the report was “confronting” and noted it was the first of its kind. He said that Meredith Connell, as the holder of one of the two Crown warrants in Auckland, felt an obligation to deliver services which matched its changing population.

Deborah Chambers QC told the audience of about 60 legal professionals that they should lobby other practitioners involved with the law society because “we are behind on this compared with other issues.”

The Queen’s Counsel also suggested that young Chinese lawyers consider joining big firms rather than boutiques, saying that while it might be harder, Chinese lawyers in big firms would be able to broaden their experiences and form good relationships with other lawyers.

– BusinessDesk