Federal Court of Australia

BXD18 (by her litigation representative Marie Theresa Arthur) v Minister for Home Affairs [2023] FCA 123

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm on 24 February 2023, the practitioners for the parties are to confer and submit to the Chambers of the Hon Justice Wheelahan via email proposed draft orders to give effect to these reasons.

2.    If the parties are unable to agree on a single form of draft orders, then by 4.00pm on 24 February 2023, each party is to submit their respective proposed draft orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    There can be significant consequences for a party whose lawyers seek to proof a witness prior to trial where the witness imparts information in breach of an obligation of confidence, as the facts and the result in AG Australia Holdings Ltd v Burton [2002] NSWSC 170; 58 NSWLR 464 illustrate. The parties in this proceeding are alive to these issues. The applicant applies for orders that a potential witness to be called at the trial of this proceeding be deposed by counsel for the applicant before a Judicial Registrar of this Court. The applicant seeks to have the Court invoke powers in ss 23 and 37P(2) and (3) of the Federal Court of Australia Act 1976 (Cth) to achieve this end. In broad terms, the reason for the application is that the proposed witness is likely to be subject to both contractual and statutory obligations of confidentiality which impede the solicitors for the applicant from obtaining instructions from the proposed witness prior to trial.

Background

2    The applicant is a child who sues by a litigation representative. She arrived on Christmas Island with her father and her brother on 11 November 2013 as an asylum seeker when she was eight years of age. Following their arrival, the applicant and her family were initially detained. They were then taken to Nauru as a designated regional processing country pursuant to s 198AD of the Migration Act 1958 (Cth). The applicant remained on Nauru until April 2018 when she and her family were removed from Nauru to Australia.

3    By her further amended statement of claim, the applicant alleges that the Commonwealth had sufficient control and had assumed responsibility over a range of matters relating to her welfare and living conditions on Nauru, which combined with knowledge or constructive knowledge of a risk of harm to the applicant, and the applicant’s dependency upon the Commonwealth, gave rise to common law duties of care. The applicant alleges that the Commonwealth owed, and that the Minister now owes to her, two duties of care. The first duty is a duty to take reasonable care to prevent her from suffering psychiatric injury and from suffering physical, emotional and/or child abuse. The second duty is alleged to be a non-delegable duty to ensure that reasonable care was taken to prevent the applicant from suffering psychiatric injury and from suffering physical, emotional and/or child abuse.

4    The applicant alleges that reasonable care on the part of the Commonwealth required that a number of measures be taken in relation to monitoring and reporting on the health and welfare of the applicant and her family on Nauru, and taking measures, or requiring that measures be taken, to reduce the risk of harm to the applicant. If those measures could not be undertaken on Nauru, then the applicant alleges that reasonable care required that she be taken to another country. The applicant alleges that the risk to her arose as a result of an unsatisfactory home environment where, to the knowledge of the Commonwealth, the applicant’s father was drinking heavily, and the applicant and her brother had ceased attending school.

5    A central element of the applicant’s claim is that in August 2017, when she was 11 years of age, she was sexually assaulted by an adult male who had earlier been drinking with her father. The respondents’ pleading in response to these claims could be clearer, but it appears that by their defence to the amended statement of claim the respondents admit that the applicant was sexually assaulted as alleged. The applicant claims to have suffered injuries including major depressive disorder, escalating suicidality, post-traumatic stress disorder, anxiety and some physical injuries as a result of the negligence of the Commonwealth. The claims of negligence include the failure to have systems in place directed to the welfare of the applicant that would have prevented the occurrence of the sexual assault. Further, the applicant alleges that the Commonwealth failed to have reasonable levels of support and child psychiatric care available to her on Nauru following the assault, and failed to take steps to arrange for the care and treatment of the applicant by following the recommendations in a report that it received which was prepared by a forensic psychiatrist.

6    The respondents deny liability for the applicant’s claimed injuries. Amongst other things, the respondents: (1) deny that the Commonwealth maintained significant involvement in the day-to-day operations of regional processing facilities in Nauru; (2) deny that the Commonwealth assumed responsibility for the health and welfare of the applicant and her family from the applicant’s arrival on Nauru; (3) deny that knowledge of any servant or agent or officer that the applicant was or would be at risk of abuse or injury while on Nauru was to be attributed to the Commonwealth; (4) deny that the applicant was dependent on the respondents for medical treatment, psychological and psychiatric treatment, welfare services, and support services; (5) deny that the Commonwealth owed, and that the Minister owes to the applicant, the duties of care that are alleged; (6) deny the applicant’s allegations as to what the standard of reasonable care required; (7) deny the allegations of breach of duty; and (8) deny the allegations of causation of injury.

7    It is convenient at this point to refer to the fact that the respondents have filed a report of Assoc Prof Peter Doherty dated 4 February 2023, who is a consultant psychiatrist. Counsel for the applicant tendered the report on this application. Assoc Prof Doherty prepared his report after reviewing the papers. Amongst other things, the opinions expressed by Assoc Prof Doherty raise causation issues in relation to the applicant’s claimed injuries, because he points to contributors to the applicant’s PTSD and major depressive disorder that he considers were in place before the incident involving the sexual assault, and states that the provision of health services in Nauru “has no current relevance to the current psychological state of the applicant”.

8    A mediation date has been fixed in this proceeding, but no trial date as yet. In order to advance the proceeding towards mediation and trial, orders have been made for the filing and service of outlines of evidence and expert reports. The principal purpose of an outline of evidence is to foreshadow to the opposing party evidence that is to be adduced, but without putting the parties to the expense of preparing affidavits in admissible form, and the satellite disputes that often arise in relation to the admissibility of affidavit evidence. Notice by way of outlines of evidence may facilitate a compromise of the proceeding, and may also facilitate the smooth running of the trial. I have ordered that there is to be no cross-examination on outlines of evidence without leave. I would contemplate that, subject to objection, expert medical reports might be received as part of a medical witness’s evidence-in-chief.

The proposed witness

9    The proposed witness was employed by service providers on Nauru that were engaged for the purposes of providing support to persons who had been removed to Nauru. It appears that the proposed witness was present on Nauru during three periods of employment –

(a)    January 2012 to December 2013: Humanitarian Service Program, The Salvation Army;

(b)    December 2013 to September 2015: Human Service and Protection Program, Save the Children Australia; and

(c)    March 2017 to May 2019: Child and Family Services Program, HOST International Ltd (HOST International).

10    HOST International was engaged by the government of Nauru pursuant to a written contract dated 8 May 2017 to provide a range of general support services to assist refugees on Nauru. The contract set out the scope of support services in a schedule, which included specific reference to a requirement to employ two child protection specialists to respond to the needs of children at risk of Nauru.

11    The sexual assault upon the applicant occurred during the period of employment of the proposed witness by HOST International. In an affidavit in support of this application, the solicitor for the applicant annexed an incident report form that has been discovered by the respondents that identifies the proposed witness as a case manager to whom a contemporaneous report of the sexual assault was made. Also annexed to the solicitor’s affidavit are minutes of a meeting titled “Children and Family (CAF) Nauru” and which are dated 31 October 2017. Those minutes record the presence of the proposed witness at the meeting, together with others appearing to represent the Government of Nauru, the Australian Border Force, Host International, Broadspectrum which was a garrison services provider, and IHMS, which was a health and medical service provider. The minutes contain many entries relating to the applicant and her family which are in bullet point form, and include references to earlier meetings.

12    The applicant wishes to call the proposed witness to give evidence about the management of the welfare of the applicant and her family on Nauru, and as I perceive it, about the conditions on Nauru generally at the relevant time. The applicant’s solicitor annexed to her affidavit in support of the application a copy of a signed employment agreement between the proposed witness and HOST International dated 24 February 2017. Under the employment agreement, the proposed witness was employed as a case manager. There is a clause in the agreement relating to confidential information which provides (inter alia) –

12.    Confidential Information

12.1    You must keep confidential all Information, other than Confidential Information that:

(a)    you are required to disclose in the course of your duties; or

(b)    you are required by law to disclose.

…

12.5    Your obligations under this clause (except in respect of information, which is part of your general skill and knowledge) continue to apply after the termination of your employment for any reason.

13    Under the terms of the agreement between HOST International and the Government of Nauru (referred to in the agreement as GON), HOST International was by cl 9.1 under obligations of non-disclosure of “Official Information”, unless required to do so by law. The term “Official Information” was defined as meaning –

… any information developed, received or collected by or on behalf of the GON to which the Service Provider gains access under or in connection with this Contract and the terms of the Contract;

14    By cl 9.1.3, there is an obligation on HOST International to secure all Official Information –

The Service Provider agrees to secure all Official Information against loss and unauthorised access, use, modification or disclosure.

15    In addition, there is a requirement under cl 6.2 that HOST International ensure that its personnel comply with obligations binding on it –

6.2.    Extension of provisions to subcontractors and Personnel

6.2.1.    In this clause 6.2:

Requirement    means an obligation, condition, restriction or prohibition binding on the Service Provider under this Contract.

6.2.2.    The Service Provider agrees to ensure that:

a.    its subcontractors and Personnel comply with all relevant Requirements; and

b.    any contract entered into in connection with this Contract imposes all relevant Requirements on the other party.

6.2.3.    The Service Provider agrees to exercise any rights it may have against any of its subcontractors, Personnel or third parties in connection with a Requirement in accordance with any direction by the GON.

16    The solicitor for the applicant apprehends that there is a real risk that the proposed witness might breach contractual and statutory obligations of confidence should she give instructions to the legal practitioners for the applicant for the purposes of preparing an outline of evidence and for the purposes of calling her at the trial of the proceeding. The contractual obligation of confidence is that owed by the proposed witness to Host International. The statutory obligation of confidence was drawn to the applicant’s attention by the Australian Government Solicitor, and arises under the Australian Border Force Act 2015 (Cth), s 42, and is relevant in respect of the period July to September 2015 when the proposed witness was employed by Save the Children. There is an exception in s 42 for the disclosure of information that is required by an order or direction of a court or tribunal.

17    In summary, the position is as follows –

(a)    the Commonwealth has waived obligations of confidence, to the extent that it is able to do so;

(b)    Save the Children has waived any obligations of confidence to it;

(c)    however, Host International Ltd has stated that it is unable to waive obligations of confidence, as it was engaged as a contractor by the Government of Nauru, to which it owes obligations of confidence; and

(d)    there is a risk of contravention of the secrecy provisions in s 42 of the Australian Border Force Act 2015.

18    HOST International was served with a copy of the interlocutory application, and the order of the Court fixing the hearing, but it did not appear at the hearing. There is no evidence that notice of the application has been given to the Government of Nauru.

19    There have been email exchanges between the solicitors for the applicant and the proposed witness in which she has been given notice of a proposal that the applicant would make an application to the Court to hear her evidence in a deposition type procedure as a means of avoiding the risk that the proposed witness would be in breach of contractual obligations of confidentiality. The proposed witness in response indicated her willingness to give “deposition style evidence” on the basis that the examination would be conducted via Microsoft Teams, or that any travel costs would be covered. While the correspondence with the proposed witness could have been more precise, I am satisfied that the proposed witness has given her consent to the substance of what the applicant proposes.

20    The position of the respondents on the application was that they opposed the application on the ground that notice of the application had not been given to the Government of Nauru. Otherwise, the respondents drew attention to several matters that might inform my decision.

The submissions of the applicant

21    Counsel for the applicant submitted that the Court had the power to make the orders for examination, and relied on the following matters in support of the exercise of the Court’s discretion in a way favourable to the applicant.

22    Counsel acknowledged that what was sought was a rare form of discovery that would impose an additional burden on the Court’s resources and take up a day of the time of a Judicial Registrar. Counsel acknowledged that I should be cautious in approaching the application.

23    Counsel submitted that a central issue on liability at trial will be the practical operation and coordination between various contracted service providers, the Australian Border Force, and the government of Nauru in relation to the care of the applicant and her family. Counsel submitted that the proposed witness was a senior welfare worker who had a close and enduring relationship with the applicant and her family from 2016 to 2018, and who is very likely to be able to give evidence on the issues that he identified. Counsel submitted that the information that the proposed witness was likely to be able to give was not recorded in documents, but would explain and expand, and give practical content to a vast documentary record. Counsel referred to the minutes of a meeting titled “Children and Family (CAF) Nauru” to which I referred at [11] above, and submitted that the proposed witness could give evidence of the provenance of the document, which I understand as including the provenance of the information recorded in the document. It was submitted that the proposed witness was able uniquely to give evidence of her observations of the applicant’s symptoms and behaviours over time. It was submitted that this sort of evidence could be relevant to an evaluation of the opinion evidence of Assoc Prof Doherty. Counsel submitted that if the proposed witness does provide useful evidence on those issues, then the witness would have to be called at trial and asked to give evidence-in-chief without the benefit of a conference. Evidence called in this way would likely generate further enquiries and the possibility of a response. Counsel submitted that there was a risk that if the respondents heard the substance of the evidence for the first time at trial, then there was a risk of an application for an adjournment while further investigations were made in response to the evidence that was given. Counsel submitted that the proposed witness would not be in breach of her contractual obligations of confidence to HOST International if she was required to give evidence at an examination before a Judicial Registrar in the manner proposed.

24    Counsel submitted that the respondents would not suffer any prejudice if the orders sought were made. The respondents would not be required to attend the examination, and could receive a copy of the transcript and no more if they chose this course. Counsel submitted that it was likely that the examination could be completed before the mediation, which is currently fixed for 20 March 2023, and that with the benefit of the examination the parties would have a much better appreciation of the risks in relation to the central questions going to liability, as to what actually happened, and as to the weight to be given to Assoc Prof Doherty’s opinion.

Submissions on behalf of the respondents

25    As I mentioned, counsel for the respondents opposed the application on the ground that no notice to the Government of Nauru had been given, and otherwise the respondents’ predominant position was that they did not wish to stand in the way of the application. Counsel for the respondents accepted that the Court had power under s 23 of the Federal Court of Australia Act, and otherwise made submissions to assist the Court, which included referring the Court to relevant authorities. Counsel for the respondents did not quarrel with the proposition that the proposed witness may be able to put flesh on the bones of the representations in the various documents to which I was referred.

Discussion

26    There have been a number of decisions of the Court that have considered whether, in circumstances having some features of the present case, the Court has power to make an order for oral discovery involving a person being examined. There are no published reasons for decision where such an order has been made, but there are several cases where the possibility of such an order has been identified.

27    Before going to the cases, I want to identify more clearly what is proposed. It is, of course, axiomatic that the Court may make an order for the taking of evidence prior to the hearing. Such a course is authorised by r 29.11 of the Federal Court Rules 2011 (Cth) and s 46 of the Federal Court of Australia Act. Under that process, the witness may be subpoenaed to give evidence before an examiner (r 29.22(1)), and may be examined, cross-examined, and re-examined, in the same manner as a trial: r 29.16(4). This procedure may be seen as the statutory equivalent of the old equitable bill to preserve and perpetuate testimony: see, West v Lord Sackville [1903] 2 Ch 378 at 388 (Vaughan Williams LJ). The power under s 46 of the Act is wider than that under the Rules, because an order for examination of a witness may be made for the purposes of any “proceeding”, which includes incidental proceedings such as discovery: see the definition of “proceeding” in s 4, and the notes under the definition and under s 46.

28    The process of deposing witnesses in civil proceedings in the United States prior to trial has broader purposes, namely the dual purposes of obtaining admissible testimony, and discovery: see, Radio Corporation of America v Rauland Corporation [1956] 1 QB 618 at 643-644 (Devlin J); Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 634-635 (Lord Diplock). In the past, such a process has not been considered to be part of Australian or English law, as Heerey J observed more than 20 years ago in Martin v Tasmania Development Resources [1999] FCA 71.

29    What is proposed in the present case is not the taking of evidence for use at trial, but oral discovery. Pre-trial discovery is a different process with a different purpose from the taking of evidence on commission. There is no provision in the Federal Court Rules 2011 (Cth) allowing for oral discovery from a party, still less a stranger to the proceeding: cf, Supreme Court (General Civil Procedure) Rules 2015 (Vic), O 31, which provides for discovery by oral examination of a party with the party’s consent.

30    The Court’s power in s 23 of the Federal Court of Australia Act is a broad power that may be exercised in an appropriate case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] [1998] HCA 30; 195 CLR 1 at [28] and [35] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). Section 23 confers such powers as are necessary or incidental to the exercise of jurisdiction of the Court: Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 632 (Brennan and Toohey JJ). Orders may therefore be fashioned in an appropriate case so as to further the purpose for which the power in s 23 was conferred. That purpose is informed by s 37M of the Act, which provides for the overarching purpose in civil proceedings of facilitating the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible. Examples of orders made in exercise of power under s 23 of the Act include orders framed so as to prevent an abuse or frustration of the Court’s processes, as with the Mareva orders that were the subject of consideration in Jackson v Sterling Industries Ltd and Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380. Orders may be made in the exercise of power under s 23 against persons who are not parties to the proceeding, as Cardile v LED Builders Pty Ltd illustrates. Another illustration, more closely aligned to the present circumstances, is Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd (No 4 – examination orders) [2021] FCA 1237, where Wigney J ordered that a Crown witness, who had been examined at a committal hearing, appear for further examination before this Court, which was an example of the type of orders referred to by Hunt J in R v Basha (1989) 39 A Crim R 337 at 339. In the case before Wigney J, because the witness had given evidence at the committal the express powers in s 23CQ(1) of the Federal Court of Australia Act to require the witness to attend for examination were not engaged, but Wigney J held that the power existed under s 23 to require further examination for the purpose of preventing an unfair trial.

31    The idea that in civil proceedings this Court might make orders in the nature of oral discovery by requiring witnesses to attend for examination has been referred to in recent years on a number of occasions. In Jones v Treasury Wine Estates Ltd [2016] FCAFC 59; 241 FCR 111 at [29], Gilmour, Foster and Beach JJ alluded to this Court theoretically having the power under ss 23, 33ZF, and 37(2) and (3) of the Federal Court of Australia Act to order oral discovery of the type undertaken in the United States. Their Honours expressed doubt whether s 46 of the Act, despite its apparent width, could be used as a source of power to order oral discovery. Moreover, their Honours doubted that a power to order oral discovery would be exercised other than in a most exceptional case.

32    In Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 1284; 139 ACSR 52 (ASIC v ANZ), Allsop CJ at [9] referred in passing to oral discovery from senior officers of the Bank with personal knowledge of relevant events as one means of prosecuting that proceeding in a cost-effective manner. In Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1; 276 FCR 477 Lee J, with whose reasons Allsop CJ and White J expressed general agreement, identified at [82] a deposition procedure as one mechanism by which there might be compulsory disclosure by employees of the appellant who were bound by contractual obligations of confidence. Lee J considered that the making of such an order was supported by the broadly-expressed powers in s 33ZF or 37P(2) of the Federal Court of Australia Act, which apply to group proceedings. In Commissioner of Taxation v Israel Discount Bank Limited [2020] FCAFC 71 at [16], Perram, Gleeson and Lee JJ cited Crown Resorts Ltd v Zantran Pty Ltd and ASIC v ANZ and alluded to the possibility of pre-trial oral discovery directed to a third party.

33    In Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 8) [2021] FCA 295 (Davaria), which was a group proceeding, Middleton J addressed a submission that the Court lacked power to make an order for oral discovery directed to third parties to the proceeding under the Court’s general powers in ss 23, 33ZF and 37P(2)-(3) of the Act. Middleton J also considered whether s 46 of the Federal Court of Australia Act was an available source of power, but did not decide that point. After referring to the authorities his Honour held at [104] that he had no doubt that there was power to make the oral discovery order sought in that case if it was appropriate to do so. While his Honour referred specifically to s 33ZF(1) of the Act as a source of power, I consider that his Honour’s reasoning applies equally to s 23 as a source of power. However, Middleton J went on to reason that in the circumstances presented in Davaria, it was not appropriate to make the orders sought. Amongst other things, his Honour held at [117(g)] that the proposed examinations would increase the burden on the parties at the interlocutory stage and would lead to a lack of efficiency in the case management of the proceedings.

34    On the present application, there was no submission that the decision of Middleton J in Davaria should not be followed, and counsel for the respondents accepted that the Court had power to make the orders sought by the applicant. For these reasons, I conclude that the Court has power to make the orders sought by the applicant. Further, the recent decisions of this Court to which I have referred above indicate that the Court might entertain making an order for oral discovery directed to a third party in an appropriate case. I respectfully apply the approach of Middleton J in Davaria at [107] who reasoned that it was not necessary for there to be some exceptional characteristics before the Court would make an order for oral discovery. What is relevant is the individual judge’s assessment of whether it is fair and just to do so in a particular case.

35    That brings me to consider orders made by Besanko J on 13 November 2020 in a proceeding involving an alleged patent infringement, Vehicle Monitoring Systems Pty Limited v SARB Management Group Pty Ltd trading as Database Consultants Australia (NSD 200 of 2019). His Honour made orders that a witness, who had confidentiality obligations to the applicant, be deposed before his Honour. The orders made by Besanko J included the following –

1    Pursuant to sections 23, 37P(2) and (3) of the Federal Court of Australia Act 1976 (Cth) (the Act) Mr Peter Crowhurst be deposed on oath or affirmation by counsel for the First Respondent before Justice Besanko on 25 November 2020 at 10.30 am (AEDT) (Oral Examination).

2    The First Respondent be granted leave to, and must, issue to Mr Crowhurst a subpoena to attend to give evidence for the purposes of Order 1 above, returnable on the date specified in Order 1 above.

3    At the Oral Examination, there be no cross-examination.

4    The evidence at the Oral Examination be recorded in a transcript in accordance with the usual processes of the Federal Court of Australia.

5    Objections to evidence be permitted to be made by the Applicant and recorded on the transcript, and determined by the Court as it deems fit.

6    The transcript of the Oral Examination may be tendered at the hearing in this proceeding in March 2021, subject to:

(a)    Mr Crowhurst being available for cross-examination if required by the Applicant;

(b)    any rulings as to objections made by Justice Besanko; and

(c)    appropriate confidentiality orders being made over information contained in the transcript.

…

36    Besanko J referred to the making of the above orders in reasons that were subsequently published in relation to a separate application by the respondent to amend its defence and cross-claim: Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd (No 6) [2020] FCA 1866. At [47] of those reasons, Besanko J referred to the fact that while the witness could be subpoenaed to attend to give evidence at the trial, this had the potential to disrupt the trial because the parties would not have advance notice of what he was going to say as would be the case with other witnesses who had sworn affidavits. I observe that although Besanko J ordered that the witness be deposed, the substance of the orders contemplated that the answers given at the oral examination could be tendered at the trial, thereby making the process closer to one where evidence was taken on commission than a process of oral discovery.

Analysis

37    I am mindful of the fact that the orders sought by the applicant are extraordinary in nature, and that counsel submitted that I should approach the application cautiously. I have done this, and I have given the discretionary considerations careful attention bearing in mind that each case seeking to invoke the Court’s general powers under s 23 of the Federal Court of Australia Act turns on its own facts and circumstances and calls for an exercise in judicial judgment tempered to those facts and circumstances.

38    In the particular circumstances of this case, I have come to the clear view that the interests of justice favour making orders substantially in the form sought by the applicant. My reasons for this conclusion are as follows.

39    First, the applicant is a child who is not likely to be able to give instructions as to the detailed factual matters which are at the heart of her pleaded case against the respondents on duty, breach, and causation. The applicant’s lawyers have filed an outline of evidence of the applicant’s father which addresses some of the issues, but it might be said that the evidence of the father that is foreshadowed is high-level. The applicant is therefore somewhat dependent on the evidence that can be adduced in the form of discovered and subpoenaed documents, and to the extent that it is available, evidence of available witnesses.

40    Second, I am persuaded that the evidence of the proposed witness will likely be significant to the applicant’s case. Although the evidence at trial will be largely viva voce, by their outlines of evidence the parties have given written notice of the evidence to be adduced, and they have filed their expert reports. I can see a real risk of a disrupted, disjointed trial if the proposed witness is called “cold” and without notice of the substance of her evidence. The risks include the need to obtain other evidence, including procuring supplementary expert reports during running. These risks are easily addressed by having an examination before a Judicial Registrar in the manner proposed. I consider that the resources of the Court that the applicant seeks to employ for the purposes of the examination will be comparatively modest, and that the course proposed has the real prospect of saving Court resources by placing the parties in an informed position for the purposes of the mediation of the proceeding, and by reducing the risk that the trial will be disrupted. On balance, I am persuaded that the resources of the Court are better deployed by having an examination of the proposed witness prior to mediation and trial than to have evidence called “cold” at trial.

41    Third, the proposed witness does not oppose the course that is proposed. This is an important consideration. The position of the proposed witness renders it likely that the resources of the Court that are occupied by the examination will be contained. Different considerations might come into play if an order for the examination of a hostile or adverse witness was sought.

42    Fourth, HOST International to whom the proposed witness owes contractual obligations of confidence was on notice of the application and did not appear at the hearing to oppose the orders sought. In relation to the interests of both the proposed witness and HOST International in keeping the information confidential, I propose to order that the examination should not occur in open court, and that the obligations essayed in Hearne v Street [2008] HCA 36; 235 CLR 125 will apply to any evidence given at the examination. Because the process is a form of discovery, it will be aligned with the obligations of confidence and limitations on use that ordinarily apply to discovered and subpoenaed documents that have not been acted upon in open court. For the sake of clarity, the transcript of evidence given at the examination will not take the place of evidence-in-chief at trial, unless the parties were to agree otherwise. Otherwise, the transcript, or parts of it, may be tendered at trial if admissible on some other basis.

43    Fifth, I do not accept the submissions of counsel for the respondents that the Government of Nauru has any sufficient interest in this application that requires it to be put on notice on the grounds of natural justice. There is no evidence of any privity of contract between the proposed witness and the Government of Nauru, and there is no question on this application that HOST International has acted in breach of its contractual obligations to the Government of Nauru or that it has waived confidentiality over the information. Quite the opposite: it is HOST International’s maintenance of the proposed witness’s confidentiality obligations that has been the occasion for the application. Otherwise, I am not persuaded that the Government of Nauru would have any legitimate interest in opposing the applicant’s application for oral discovery.

44    I will hear counsel on orders.

Associate:

Dated:    22 February 2023