Interlocutory application – oral discovery before judicial registrar – confidentiality obligations…

…practice and procedure – exercise of power – ss23 and 37ZF, Federal Court of Australia Act 1976 (Cth)

In BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs [2023] FCA 123 (22 February 2023), the applicant is a child asylum seeker who commenced an action in negligence against the Commonwealth.

The child applicant had been sexually assaulted while in Nauru. The applicant sought an order that a potential witness, to be called at trial, be deposed by counsel for the applicant before a judicial registrar. The Minister for Home Affairs (Minister) opposed the application on the ground that notice had not been given to the Government of Nauru.

The proposed witness was a case manager to whom a contemporaneous report of the sexual assault was made. She had been employed by service providers on Nauru, and her employment contract contained a clause requiring her to keep information confidential unless required by law to disclose it. The proposed witness’s employer owed similar confidentiality obligations to the Government of Nauru.

In addition to these contractual obligations, there were statutory confidentiality obligations under the Australian Border Force Act 2015 (Cth), s42, which was argued would impede the solicitors for the applicant from obtaining instructions from the proposed witness before trial.

What was proposed was not the taking of evidence for use at trial, as permitted under r29.11 of the Federal Court Rules 2011 (Cth) (rules) and s46 of the Federal Court Act 1976 (Cth) (the Act), but rather oral discovery for which there is no provision in the rules(cf Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 31).

Wheelahan J reviewed (at [30]) cases referring to s23 of the Act which provides a broad power on the court to make orders as it thinks appropriate, and (at [31]-[33]) to ss33ZF and 37P(2) and (3) as the basis for making an order in civil proceedings in the nature of oral discovery by requiring witnesses to attend for examination.


Her Honour concluded (at [34]) that the court has power to make the orders sought, and found that the court can order oral discovery directed to a third party in an appropriate case where it is fair and just to do so. It is not necessary for there to be some exceptional characteristics.

Wheelahan J found that the interests of justice favoured the making of the orders in the form sought. Her Honour identified at [39]-[43] relevant factors, which included that the proposed witness did not oppose the order and her evidence was likely be significant. The outcome may be different if an order is sought for examination of a hostile or adverse witness. Her Honour rejected the respondent’s submissions that the Government of Nauru had any sufficient interest that required it to be put on notice. 

Shanta Martin is a barrister at the Victorian Bar, ph 03 9225 7222 or email The full version of these judgments can be found at Numbers in square brackets refer to a paragraph number in the judgment.

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