Federal Court of Australia

TCXM v Commonwealth of Australia (access to medical records) [2026] FCA 1151

ORDERS

THE COURT ORDERS THAT:

1.    The respondent request that Naoeroan government officials provide the Applicant with medical records to which he is entitled under Naoeroan law.

2.    By 4.00pm on 31 August 2026, the respondent file a confidential affidavit setting out what steps it has taken to give effect to the order in paragraph 1, and provide the Applicant with a copy of the request made (with names and contact details and other like confidential information redacted).

3.    Until 21 September 2026 or until further order, under s 37AI(1) of the Federal Court of Australia Act 1976 (Cth), no person other than a judge or member of the Court staff, the respondent or a legal representative of the respondent may access the affidavit filed pursuant to order 2 above without the leave of the Court or a judge.

4.    The costs of the Applicant’s interlocutory application are reserved.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Applicant is suing the Respondent (the Commonwealth) in tort, arising out of his recent removal from Australia to Naoero pursuant to an interim Third Country Reception Arrangement between Australia and Naoero. This proceeding is to determine his interlocutory application, which seeks access to his full Naoeroan medical records.

2    For the following reasons, orders will be made requiring the Commonwealth to make a request to Naoeroan government officials to provide the Applicant with all of his medical records to which he is entitled under Naoeroan law, and requiring the Commonwealth within 14 days to file an affidavit setting out what steps they have taken to give effect to that order. These orders are modelled on orders made in BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 494; (2019) 164 ALD 353.

3    Materials: The Applicant relies on an affidavit of Dr Natalie Thurtle affirmed on 21 July 2026, and five affidavits of his solicitor Ms Battisson:

    affirmed on 25 June 2026;

    affirmed on 14 July 2026;

    affirmed on 20 July 2026 (signed and filed on 10 August 2026);

    affirmed on 21 July 2026 (signed and filed on 10 August 2026); and

    affirmed on 10 August 2026.

4    The Commonwealth relies on three affidavits of Mr Kelly of the Australian Government Solicitor (AGS):

    affirmed on 21 July 2026;

    affirmed on 5 August 2026 (as re-affirmed on 12 August 2026); and

    affirmed on 12 August 2026.

background

5    Circumstances leading to removal to Naoero: The Applicant’s circumstances in Australia leading up to the decision to remove him to Naoero are set out in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540; (2025) 314 FCR 555.

    The Applicant is a citizen of Iran. He arrived in Australia in 1990, and was granted a protection visa in 1995. He is part of the cohort of people covered by the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137 (the “NZYQ cohort”): TCXM at [1]-[2].

    In February 2025, the Australian Government applied for a visa for the Applicant to live in Naoero, and Naoero issued a long term stay visa to the Applicant: TCXM at [6]-[7].

    The Applicant has a long history of severe and uncontrolled asthma. He requires ongoing professional or specialist help or treatment for his illness and conditions: TCXM at [77], [83](b). This finding is of particular importance in this case: see below.

    On the evidence before the Court, Moshinsky J found that the medical services available in Naoero were inadequate to manage the Applicant’s condition of severe asthma on an ongoing basis: TCXM at [90].

Moshinsky J dismissed an application for judicial review of the decision to give the Applicant notice under s 76AAA of the Migration Act 1958 (Cth) that s 76AAA applied in relation to him.

6    The appeal from Moshinsky J was removed to the High Court. One issue in the High Court was whether the Applicant’s health conditions, and the inadequacy of health services in Naoero to manage his medical condition after arrival, meant that removal to Naoero was not “practicable” within s 198 of the Act. The High Court held that the assessment under s 198 of whether removal was reasonably practicable did not include any assessment of what will or might be expected to happen to the non-citizen once received into the country to which the non-citizen is removed, once the practical and legal capacity for the non-citizen to be removed into and received into that country is established: TCXM v Minister for Immigration and Citizenship [2026] HCA 13 (TCXM (HC)) at [42] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

7    Applicant’s circumstances in Naoero: The Applicant was removed to Naoero on 6 May 2026. The evidence before the Court indicates that the Applicant’s health is in a parlous state on Naoero.

8    The Battisson affidavits of 25 June and 20 July set out reports from the Applicant of his health episodes in Nauru. For example, on 18 June 2026, a nurse told the Applicant that he has an excessive irregular heartbeat (among other things), and the Applicant reported that he had severe stomach pains and was passing blood. On 20 June, the Applicant reported that he had blacked out for about four hours the night before, and he was told by a doctor that his organs were in a “shock situation”. On 25 June, the Applicant reported that he had blacked out on 24 June. On 15 July, the Applicant reported that he was short of breath and hyperventilating every time he walked from his room to the kitchen. On 20 July, the Applicant reported that he had that morning stopped breathing, collapsed and was currently in “the ER” (which his solicitor takes to mean the Naoero Medical Centre).

9    As a contextual matter, the Applicant reports that, on removal to Naoero on 7 May 2026, he was given a 4-week supply of medicine for his asthma, his cholesterol and his blood pressure. He says there has been no regular medication since then.

10    Applicant seeks Commonwealth assistance in obtaining his medical records: On 25 June 2026, the Applicant’s solicitors wrote to AGS seeking assistance from the Commonwealth in obtaining the Applicant’s medical records in Naoero. There was an exchange of correspondence between the Applicant’s solicitors and AGS from 25 June to 8 July 2026.

(a)    The Applicant’s solicitors contended on 7 July that the Commonwealth has entered into a multi-year, multi-million dollar arrangement with Government of Naoero for the “NZYQ cohort”, and that the Commonwealth has significant contacts within the Naoeroan government.

(b)    The AGS response of 8 July was that the Commonwealth does not have access to Naoeroan medical records; does not have control over those records; has no control over or in respect of the Naoeroan Government in relation to those records; and has no legal obligation to request those records. The AGS response continues:

[The Applicant] is now a lawful resident of Nauru, and Nauru alone is responsible for the provision of healthcare to him. No residual responsibility remains with the Commonwealth Government in respect of persons removed to other countries under s 198 who have no right to return to, or remain in, Australia.

11    Tort claim, application for interlocutory relief: On 14 July 2026, the Applicant brought a claim in negligence against the Commonwealth, claiming that the Commonwealth has a duty to ensure that reasonable care is taken of the Applicant in Naoero. One claimed breach of this duty is that the Commonwealth failed to obtain the Applicant’s medical records in Naoero, and refused to provide contact details of the persons who the Applicant could contact so that he could attempt to make his own further enquiries for those records.

12    The Applicant’s originating application seeks a mandatory injunction “requiring the [Commonwealth] to provide the applicant the health care that the Court determines” (order 1), and damages, interest and costs. The originating application also applies for the following interlocutory relief:

The [Commonwealth] make such requests and do such things as may reasonably be necessary to obtain from the Government of Nauru the medical records of the applicant.

13    Case management hearing (21 July): Perry J, as duty judge, held an urgent case management hearing on 21 July. Among other things, her Honour requested the Commonwealth to provide contact details for a person within the Naoeroan government who the Applicant could direct requests for his medical records. Later that day, AGS provided the Applicant’s solicitors with contact details for the Acting Chief Justice of Naoero.

consideration

14    Sabre order: By s 23 of the Federal Court of Australia Act 1976 (Cth), the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. One example of an order that can be made under s 23 is an order requiring a party to take “all reasonable steps” to obtain documents in possession of a third party (a “Sabre order”). The Court would only make that order if there is a likelihood that third party has the documents, and a real likelihood that the party would be given access to documents on request: Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Company [1993] FCA 557; (1993) 46 FCR 428 at 431-432 (Lockhart J); SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150 at [31]-[33] (Edmonds J).

15    As explained below, the order here is not to request a third party to provide documents to the requesting party (the Commonwealth), but rather to request a third party to provide documents to the other party to this proceeding (the Applicant). However, the factors affecting whether the Court would make a Sabre order (going to the practicality of making the order) provide guidance on whether the order sought in this case should be made.

16    Connection between interlocutory relief and the proceeding: The power to make orders under s 23 of the Federal Court Act is exercised to ensure the effective exercise of the jurisdiction invoked: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). In this case, the asserted connection between the urgent interlocutory order sought and final relief is to preserve the subject-matter of the litigation, ie to keep the Applicant alive. These medical records would also be relevant to the Applicant for forensic reasons for the trial; however, any forensic purpose would not justify making the urgent orders sought.

17    Reason for seeking complete medical records: The purpose of the proposed order is, relevantly, so that the Applicant can provide doctors in Australia with his complete medical records from Naoero. On 31 July, the Applicant was provided with a 23-page “medical report” from the Naoero Medical Centre that summarises his medical treatment in Naoero. Dr Thurtle’s affidavit establishes that proper medical advice requires that the doctor have access to complete medical records, and not just a summary. The Applicant’s solicitor has advised that she has arranged doctors in Australia who are available to provide assistance.

18    State of Applicant’s health: A key issue is therefore the state of the Applicant’s health. The Applicant contends that it is self-evident that his health is in a parlous state, but the Commonwealth resists that characterisation. For the following reasons, I find that the Applicant’s current state of health is parlous, and justifies taking urgent action.

19    The Applicant has provided details of his medical condition in Naoero, reported in the Battisson affidavits. Some of the major health episodes are summarised in [8] above. He has passed out a number of times, most recently in the evidence on 20 July 2026.

20    The Commonwealth contends that the medical report provided by the Naoeroan authorities indicated that the Applicant’s health condition is not so serious, and pointed out that this document states at a number of points that chest x-rays of the Applicant were described as “normal”. However, there is no expert medical evidence before the Court about whether severe asthma would be apparent on a chest x-ray. Accordingly, I would not attach any significance to this statement in the report. The Naoeroan medical report does state that the Applicant has a “known history of respiratory disease”.

21    Moshinsky J made findings about the Applicant’s medical condition in May 2025 after contested trial of fact. His Honour made findings that the Applicant has a long history of severe and uncontrolled asthma, based on evidence from the Applicant himself and expert evidence: see TCXM at [77], [83]. The Commonwealth contends that I cannot act on the basis of this finding, and invokes s 91 of the Evidence Act 1995 (Cth). However, the Court may order under s 190(3) of the Evidence Act that certain provisions, including s 91, do not apply in relation to evidence if (a) the matter to which the evidence relates is not genuinely in dispute; or (b) the application of the relevant provision would cause or involve unnecessary expense or delay. Relevant factors for s 190(3) include the probative value of evidence and the nature of the subject-matter of the proceeding (s 190(4)(c) and (b), respectively).

22    Here, it must be questioned whether it could seriously be in dispute that the Applicant suffers from severe asthma. I note that the Commonwealth did not contest the factual findings of Moshinsky J in the High Court: TCXM (HC) at [24]. Even if that is not correct, it would cause unnecessary expense or delay to require the Applicant in this interlocutory proceeding to re-prove a matter that was established after a trial of fact between the same parties a little over a year ago. The finding of Moshinsky J is highly probative, being a finding reached about this Applicant’s health after a contested trial of fact. Even if this finding does not rise to the level of an issue estoppel, the current case is far removed from the usual situation to which s 91 is directed, where a finding made in a different civil case (potentially with different parties) can be expected to have minimal probative value: see National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) [2001] FCA 237; (2001) 183 ALR 700 at [47] (the Court). Further, the urgent and interlocutory nature of these proceedings supports the Court acting on probative material, even if not proved strictly in accordance with the usual rules of evidence. I note that, in A v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1343; (2018) 265 FCR 446 at [9], Mortimer J relied on news reports as probative in an urgent interlocutory application.

23    Commonwealth arguments: The Commonwealth submissions list seven reasons why the interlocutory order should not be made. Those reasons really reduce to two broad objections.

24    The first objection is that (it is said) the order is not appropriate because it would interfere with or intrude on international relations between Australia and Naoero. (The Commonwealth is content for me to deal with this argument as a matter going to discretion, rather than a constitutional objection to whether there is a “matter”.) There are two particular difficulties:

    the Court cannot decide whether there is a real likelihood of the Applicant getting records (which is a requirement of a Sabre order) without predicting how Naoero would respond; and

    there are no judicial standards to determine what steps are “reasonable” in international relations. Therefore (it is said) the Court cannot assess whether the Commonwealth has complied with any order requiring it to make a request.

25    The two difficulties identified by the Commonwealth arise out of the decision in Habib v The Commonwealth (No 2) [2009] FCA 228; (2009) 175 FCR 350. In that case, proving loss would have required Mr Habib to establish that, had the Commonwealth considered whether to intercede on his behalf it would have done so, and further that the United States, Egypt or Pakistan would have acted on any request made by Australia on his behalf: Habib (No 2) at [66]. Perram J held that the Court cannot determine what the response by a foreign country would be to a request by Australia to let Mr Habib go, or treat him more humanely: Habib (No 2) at [68]; see also Trail (a pseudonym) v Secretary, Department of Home Affairs [2023] FCA 1061 at [109] (Halley J). Perram J also held that the Court cannot determine whether the Commonwealth would have made a request if it had decided to intervene on Mr Habib’s behalf: Habib (No 2) at [67].

26    The Commonwealth’s second broad objection is that there are other discretionary reasons to refuse to grant the interlocutory relief sought.

    First, it is said that the Applicant’s claim does not give rise even to a prima facie case, because any liability is plainly excluded by s 198(13) of the Migration Act.

    Second, it is said that the mandatory injunction sought in the application could not be ordered, because it would require ongoing management by the Court: see Patrick Stevedores at [79].

    Third, it is said that the Applicant has not taken any steps to obtain his Naoeroan medical records under Naoeroan law.

Discretionary reasons

27    It is convenient to begin with the three discretionary factors set out above.

28    Migration Act s 198(13): The first discretionary factor is that s 198(13) of the Migration Act (it is said) precludes even a prima facie case. I accept that s 198(13) of the Migration Act would appear to be a barrier to the Applicant obtaining the relief he seeks. Section 198(13) provides:

(13)    No civil liability is incurred by an officer, an officer of the Commonwealth (including the Minister) or the Commonwealth in relation to any act or thing done, or omitted to be done:

(a)    by the officer or officer of the Commonwealth in good faith and:

(i)    in the exercise of the officer's or the officer of the Commonwealth's powers; or

(ii)    in the performance of the officer's or the officer of the Commonwealth's functions or duties; or

…

in relation to the acceptance or receipt by a foreign country, or ongoing presence in a foreign country, of a person removed from Australia under this section, including any act or thing done or omitted to be done:

(d)    under or in relation to a third country reception arrangement (within the meaning of section 198AHB ); or

(e)    in relation to the third country reception functions (within the meaning of that section) of the country.

29    However, the Applicant contends that s 198(13) would be interpreted narrowly, and also seeks to challenge its constitutional validity. The Applicant’s constitutional argument is that s 198(13) is inconsistent with the guarantee of jurisdiction in matters to which the Commonwealth is a party under s 75(iii) of the Constitution, referring to Habib v Commonwealth [2010] FCAFC 12; (2010) 183 FCR 62 at [27]-[28] (Perram J), [129], [131] (Jagot J). A notice of constitutional matter was issued on 11 August 2026. The preclusive effect of s 198(13) is not so obviously beyond argument that I would rely on it to refuse granting interlocutory relief that is directed to preserving the subject-matter of the litigation.

30    Form of final injunction: The second discretionary factor is the form of the final mandatory injunction sought. As noted, the Applicant seeks a mandatory injunction “requiring the [Commonwealth] to provide the applicant the health care that the Court determines” (emphasis added). There may well be issues about whether the Court could or should make this order. But the Applicant also seeks damages. Accordingly, any issue with the form of the mandatory injunction is not reason to refuse to grant interlocutory relief.

31    Steps taken in Naoero to obtain Applicant’s records? The third discretionary factor is that the Applicant has not taken steps under Naoeroan law to obtain his medical records.

    The evidence indicates that the Applicant has made three requests to get his Naoeroan records, on 23, 26, and 31 July 2026. He has been provided with a 23-page document called a “medical report”.

    As noted, on 21 July 2026, the Commonwealth provided contact details for the Acting Chief Justice of Naoero. On 21 July, the Applicant’s solicitor sent an email to the Acting Chief Justice, and received the following reply:

I acknowledge receipt of your correspondence requesting access to your client’s medical records, together with the enclosed consent letter purporting to authorise such access. Notwithstanding that consent, I am not authorised to release the records sought as I am not privy to them. Pursuant to Section 36 of Naoero’s Health and Medical Services Act 2025, information of this nature is required to be held and managed within the confidential relationship between the relevant health practitioner and the patient.

In the circumstances, your client should direct any request for the relevant medical records to his treating doctor in the first instance.

32    It can be seen the Applicant has made repeated requests in Naoero to obtain his medical records. Although he has not brought legal action in Naoero to obtain these records, I would not give that factor any weight, given the urgent and interlocutory nature of these proceedings.

Interference with diplomatic relations?

33    The Commonwealth’s principal objection to the Court making interlocutory orders is that (it is said) this would interfere with Australia’s conduct of diplomatic or foreign relations. I accept that, as a general proposition, the manner of the exercise of the power to conduct foreign relations is beyond review by the courts: Habib (No 2) at [51]. The Court cannot compel Australia to take actions within the diplomatic sphere: A at [34]; see also Desai v Keelty [2009] FCA 1280; (2009) 180 FCR 559 at [39] (Tracey J). But, as with the act of state doctrine, it is necessary to consider the particular issue raised and the relief sought: it is not enough to consider the issue at the level of generalities: see Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 at [51]-[52] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

34    Pre-existing relationship between Australia and Naoero: This case is very different from the facts of Habib (No 2), A and Desai. Here, the interlocutory relief sought arises in the context of a pre-existing and ongoing relationship between Australia and Naoero for the settlement of a cohort of people including the Applicant in Naoero.

    The Applicant was involuntarily removed to Naoero by Australia.

    Australia has entered into an interim Third Country Reception Arrangement (TCRA) with Naoero whereby Australia provides funding towards keeping the Applicant (and two others) on Naoero, and Naoero agrees to certain conditions. Relevantly, Naoero accepts its responsibility to provide support to settled persons to achieve minimum outcomes in line with Naoeroan standards of living, including (as necessary and as tailored to individual needs) access to health services.

    The interim TCRA is supported by a Memorandum of Understanding in relation to the Acceptance, Receipt and Ongoing Presence of Persons in Naoero dated 29 August 2025. Clause 4 of Sch 1 to this Memorandum of Understanding deals with support for settled persons, and provides that Naoero commits to providing support to all settled persons to achieve minimum outcomes in line with Naoeroan standards of living, including (as necessary and as tailored to individual needs) granting all settled persons access to health services.

35    Although the arrangement between Australia and Naoero is not a legally enforceable contract, the medical treatment of the Applicant in Naoero is a matter covered by a pre-existing arrangement between the two countries. Australia continues to fund Naoero to support keeping people from the NZYQ cohort in Naoero. The interim TCRA states that the Commonwealth Department and the Government of Naoero “will meet regularly to discuss [Naoero’s] progress” in the practical implementation of the settlement program while the arrangement is in force.

36    BKP19 (Robertson J): A closer point of comparison is BKP19. In that case, the applicant sought orders that the Commonwealth cause his return to Australia from Naoero. Robertson J declined to make those orders, but made orders that the respondents “enquire with Nauruan government officials” whether uplift approval was available, and file an affidavit setting out steps taken to give effect to that order. His Honour rejected an argument that these orders would require Australia to take actions in the diplomatic sphere: BKP19 at [16].

37    The Commonwealth says that BKP19 is distinguishable, because at that time the Commonwealth and Naoero were jointly managing the health of transitory persons but, here, Naoero alone is responsible for the health of people covered by the interim TCRA, such as the Applicant. The Commonwealth observes that the relevant administrative arrangements between Australia and Naoero at the time of BKP19 made specific provision for returning transferees to Australia who presented a serious risk to public health, and that the Migration Act provided a specific power to return transitory persons to Australia (in s 198B). However, these matters are only a difference of degree. Like BKP19, here there is arrangement between Australia and Naoero, under which Australia provides funding to support Naoero in accommodating people in the NZYQ cohort. So any request by Australia would be in the context of a continuing relationship between the two countries for the settling of people sent from Australia to Naoero. The difference in the extent of Australia’s management of medical issues in Naoero does not go to the effect on international relations of making the request.

38    In BKP19 at [15], Robertson J referred to three factors that were relevant in determining the orders that should be made: (1) it was important to respect Naoeroan sovereignty; and also important (2) to draft orders in a form that enabled the respondents to know what they must do to comply with them, and (3) that were “likely to have a practical effect”. The Commonwealth contends that the latter two factors are not met here.

39    Form of orders: On the form of orders (factor (2) above), the relevant orders in BKP19 were that the respondents “enquire with Nauruan government officials whether uplift approval is available” (order 2), and to file an affidavit “setting out … what steps [the respondents] have taken to give effect to [order 2] of these orders” (order 4). The Commonwealth submits that the Court could not make an order requiring it to assess whether its orders were complied with (which it is said would require the Court to assess whether the steps taken were reasonable), without entering on how Australia conducts foreign affairs. The Commonwealth raises particular concerns about the level of government in Naoero at which enquiries made, the specific terms of the request, and the timing of the request.

40    These are real concerns, but the orders in BKP19 provide a template. The Commonwealth can decide for itself how to make the request. It will be required to describe the request it did make in an affidavit. Any assessment by the Court of the steps that have been taken will be against the background that the conduct of foreign relations is a matter for the executive, not the courts. The possibility of the Court taking issue with the steps that have been taken by the Commonwealth seems more theoretical than real at this stage.

41    Would the orders have any practical effect? The remaining and decisive matter is whether the orders sought would have any practical effect (factor (3) in [38] above).

42    The Applicant correctly accepts that the Court could only require the Commonwealth to request Naoero to disclose the Applicant’s medical records in accordance with Naoeroan law. Naoeroan law does not permit the Applicant’s medical records to be disclosed to the Commonwealth. Accordingly, any order would have to be that the Commonwealth request Naoero to provide the Applicant’s medical records to the Applicant in accordance with domestic Naoeroan law. That form of request raises two issues.

43    What can be disclosed under Naoeroan law? The first issue is what can be disclosed under Naoeroan law. The Health and Medical Services Act 2025 of Naoero (Naoeroan Act) is in evidence. Section 36 of that Act deals with the confidentiality of health information, and relevantly provides:

    By s 36(1), health information is confidential and privileged between health practitioner and a patient.

    By s 36(2), subject to s 36(3), health information “shall not be disclosed to any person without the written consent of the patient”.

    Section 36(3)(a) provides that health information “may be disclosed and provided” to the patient, “limited to a special report prepared by a health practitioner from the patient’s record”.

44    There is a contest between the parties on whether s 36(2) permits the whole of a patient’s health information to be disclosed to the patient with their consent, or whether s 36(3)(a) limits any disclosure to a “special report”, and not the whole record. Neither interpretation fully explains the words used in s 36. I tend to think that s 36(3) limits disclosure to a patient to a special report, but it is difficult to see what s 36(2) does on this construction. On the other hand, if a patient may receive the whole of their record under s 36(2), it is difficult to see what meaning is given to “limited to a special report” in s 36(3)(a). I note that s 36(3)(c) limits the disclosure of health information for the purposes of an overseas medical referral to a special report, whereas the evidence of Dr Thurtle indicates that an overseas doctor would require the full medical record.

45    Has all information already been disclosed? The second issue is whether all information that may be provided to the Applicant has already been disclosed to him. The proposed order would not have any practical effect if the Applicant has already been provided with everything to which he is entitled under the Naoeroan Act. As noted, the Applicant has been provided with a 23-page document called a “medical report”.

    The Applicant submits that this document is clearly not complete, because it does not mention all of his interactions with Naoeroan medical officials, as set out in the Battisson affidavits. To take one example, this report does not mention the Applicant being in the ER/Naoeroan Medical Centre on 20 July.

    On the other hand, the Commonwealth relies on the Applicant’s evidence of his interaction with medical staff in Naoero on 31 July, when he was provided with the 23-page report. He states that a Dr Martinez said to him “this is all your medical record and all you’re going to get”. It is not clear what Dr Martinez’s role is, and whether she was intending to offer an opinion about what the Applicant is entitled to under the Naoeroan Act.

46    It is not certain that the Applicant has not been provided with all the information that he is entitled to. At the same time, it could not be said that it is more likely than not that there are further documents. I would consider that there is a real chance that there may be further documents that could be provided to the Applicant. I note that SPI Spirits and BKP19 express the necessary level of likelihood in slightly different terms:

    In SPI Spirits at [32], Edmonds J referred to “a likelihood” that documents are in the possession of a third party.

    In BKP19 at [15], Robertson J stated that it is important that the orders are “likely” to have a practical effect.

47    Here, there is sufficient uncertainty as to whether the Applicant has been provided with all the records to which he is entitled under Naoeroan law that it is appropriate to make the orders sought, which would require the Commonwealth to request the Naoeroan government to provide the Applicant with all of his health information to which he is entitled under the Naoeroan Act.

48    Consistent with BKP19, the Commonwealth should be required to file and serve an affidavit setting out the steps it took to comply with this order. In BKP19, his Honour required the respondents to file that affidavit within two weeks. I would give the Commonwealth the same period of time here, starting from the date of these orders. The parties are agreed that costs of the interlocutory application should be reserved.

conclusion

49    For these reasons, the interlocutory application is granted, and orders made requiring the Commonwealth to request Naoeroan government officials to provide the Applicant with medical records to which he is entitled under Naoeroan law.

    I would not add “as determined by a Naoeroan official”. In practice, a Naoeroan official will need to make that assessment. This is a matter of Naoeroan law, and in the event of disagreement should be determined by a Naoeroan court in the first instance.

    It is appropriate that the Applicant be notified of the terms of the request. The request would be part of the confidential affidavit (discussed next), but the Commonwealth contends that affidavit should not be made available to the Applicant. When providing the Applicant with the terms of the request, it is permissible for the Commonwealth to redact the names and contact details of Naoeroan government officials, and other like confidential information.

50    The Commonwealth seeks a suppression order over its affidavit. I am prepared to make an interim suppression order under s 37AI of the Federal Court Act, to operate for a period of five weeks. I would not make that confidential affidavit available to the Applicant or his legal representatives. However, an ongoing order would require the Commonwealth to provide evidence to establish that the making of the order is “necessary” to prevent prejudice to the proper administration of justice within s 37AG(1)(a). I would expect that any application could be dealt with on the papers. The parties are to confer as to an appropriate timetable.

Associate:

Dated:    17 August 2026