Federal Court of Australia

Leigh v National Disability Insurance Agency (Extension of Time and Leave to Appeal) [2025] FCA 1559

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time and leave to appeal is dismissed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

DOWLING J

1    The applicant, Ms Tracy Leigh, seeks an extension of time and leave to appeal from an interlocutory judgment which dismissed her application for a pseudonym and suppression of documents: Leigh v National Disability Insurance Agency [2025] FCA 623 (primary judgment).

2    In the substantive proceeding, the applicant seeks an extension of time within which to appeal against a decision of the Administrative Review Tribunal dismissing her application. Her application to the Tribunal sought review of a decision of the National Disability Insurance Agency on the applicant’s “participant’s plan” under the National Disability Insurance Scheme Act 2013 (Cth).

3    The primary judgment was delivered on 13 June 2025, and the leave to appeal period expired on 27 June 2025. The application for an extension of time and leave to appeal was lodged 2 September 2025; two months late. The applicant provides some explanation for that delay and otherwise alleges a number of errors in the primary judgment. In summary, the applicant alleges that the primary judge misapplied s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) in determining that the orders sought were not necessary to prevent prejudice to the proper administration of justice and not necessary to protect the safety of any person. The applicant also alleges a failure to consider certain evidence, a denial of procedural fairness and a “misuse of discretion”.

4    For the reasons set out below the application should be dismissed.

Background facts and primary judgment

5    At [15]-[26] the primary judge set out the relevant background to the proceeding and the evidence relied upon by the applicant in support of her application for pseudonym and suppression orders. That evidence was contained in the applicant’s affidavit affirmed on 14 May 2025. In that affidavit the applicant deposes:

(a)    in July 2024, she applied to the Administrative Appeals Tribunal (AAT) for non-publication orders in relation to her “identifying information” and for an order that she be assigned a pseudonym, and orders were subsequently made by the AAT that any information that could identify her was not to be published by the AAT and that she be assigned a pseudonym;

(b)    since December 2016, two individuals have subjected her to “extreme defamation, stalking, harassment, doxing and offensive cyber abuse”, and that she filed defamation proceedings and “contempt of court” proceedings against those individuals. Those proceedings are ongoing. The proceedings concern allegations that the applicant was defamed in internet publications;

(c)    in 2023, the applicant filed an application for a Misconduct Restraining Order in the Magistrates Court of Western Australia against one of the two individuals. The Magistrate granted an interim Violence Restraining Order (interim VRO). However, the applicant says that the interim VRO was “dismissed” and the final hearing “cancelled” based on “untrue claims by the person bound by the order”. The applicant filed an appeal against the dismissal of the interim VRO in August 2024. The applicant also says that the person who was bound by the interim VRO has continued “stalking and harassing her online”;

(d)    the applicant’s affidavit also says that the applicant began being stalked and harassed by an associate of the person bound by the interim VRO; and

(e)    it says that if the person bound by the interim VRO or his associates find out that the applicant has an appeal in the Federal Court, she will be “subjected to even further defamation and cyber abuse” which “may be used against [her] in the proceedings against [those individuals]”.

6    The primary judge then addressed whether it was necessary to make the pseudonym and suppression orders sought by the applicant. At [6]-[11] of the primary judgment, his Honour considered the statutory scheme under Div 2 of Pt VAA of the Federal Court Act. Relevantly, s 37AE provides that when deciding whether to make a suppression order or a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. His Honour noted that the applicant relies on the grounds referred to in ss 37AG(1)(a) and (c) for making the orders sought; that is, that the order was necessary to prevent prejudice to the proper administration of justice and to protect the safety of any person.

7    The primary judge determined not to grant the orders sought for the following reasons. First, the primary judge considered that the generalised privacy concerns raised by the applicant fell short of demonstrating that there is any potential to prejudice the proper administration of justice or that there is any risk to the applicant’s safety: at [27]-[29] of the primary judgment.

8    Second, the mere fact that the AAT had made pseudonym orders in relation to the applicant does not automatically entitle the applicant to take part in proceedings before this Court on the same basis. In making suppression-type orders, the AAT was exercising power conferred by s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), the Act that then applied. The primary judge determined that the burden imposed by that section is significantly less demanding than the one imposed by ss 37AF and 37AG of the Federal Court Act: see the primary judgment at [30]-[31].

9    Third, the primary judge considered the applicant’s submission that the orders are necessary to prevent prejudice to the proper administration of justice in legal proceedings on foot in other jurisdictions. The applicant submitted that the administration of justice will be prejudiced if her opponents in those proceedings learn that she has commenced proceedings in this Court and are able to access documents filed, or are able to identify the anonymised reasons of the Tribunal from which she seeks to appeal, and use that information against her in those proceedings. The primary judge considered that the evidence relied on by the applicant did not establish that the orders sought were necessary to prevent prejudice to the proper administration of justice in relation to proceedings before other courts. The primary judge considered also that if the other parties were to obtain information contained in the documents filed in this Court or the reasons of the Tribunal, it was a matter for the courts exercising jurisdiction in those proceedings to guard against any prejudice to the proper administration of justice: see the primary judgment at [32]-[40].

10    Fourth, the primary judge concluded that the applicant failed to establish that the orders are necessary to protect her safety for the purposes of s 37AG(1)(c) of the Federal Court Act. His Honour considered there to be insufficient evidence in support of the assertions that the applicant believed the orders were necessary to protect her psychological safety, and that there was insufficient evidence upon which the Court could be satisfied of the existence of a possibility of harm of such gravity that, without the order sought, the risk of prejudice to the applicant’s safety would reasonably be regarded as unacceptable, applying AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 93 ALJR 321 at [15] (Nettle J): see [41]-[43] of the primary judgment.

11    As explained, on 2 September 2025, the applicant lodged an application for extension of time and leave to appeal from the primary judgment. It was filed with an affidavit in support. The documents were accepted for filing the following day, 3 September 2025.

12    The applicant in the application before me relies on written submissions and a further affidavit both dated 27 November 2025. The respondent did not file written submissions and at the hearing confined its oral submissions to bringing to the court’s attention what it considered to be the relevant authorities and the relevant paragraphs of the primary judgment.

Principles relevant to extension of time for leave to appeal and leave to appeal

13    The principles governing the Court’s power in granting extension of time for leave to appeal interlocutory decisions are well established.

14    Under r 35.14 of the Federal Court Rules 2011 (Cth), the Court may grant an extension of time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion relating to extension of time for leave to appeal were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–9 (Wilcox J), and have been adopted in recent decisions of the Court including Ross v Attorney-General (Cth) [2024] FCA 180 at [59] (Goodman J) and BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O’Bryan JJ). Those principles are as follows:

(a)    applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;

(b)    there must be some acceptable explanation for the delay;

(c)    any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

(d)    the mere absence of prejudice to the respondent is not enough to justify the grant of an extension; and

(e)    the merits of the substantial application are to be taken into account in considering whether an extension is to be granted.

15    In respect of the principles relevant to leave to appeal, in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9, Sheppard, Burchett and Heerey JJ considered whether leave to appeal should be granted from an interlocutory judgment, finding that the major considerations that apply to the general run of cases in which leave to appeal from an interlocutory decision is sought are: (1) the decision is attended by sufficient doubt to warrant the grant of such leave; and (2) substantial injustice would result from a refusal of such leave.

16    The principles set out in Décor Corporation have been applied in recent decisions of this Court in respect of leave to appeal from interlocutory judgments: see Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia [2025] FCAFC 160 at [62] (Banks-Smith, McDonald and Longbottom JJ); Latitude Finance Australia v Australian Securities and Investments Commission [2025] FCAFC 124 at [19] (O’Bryan, Cheeseman and Bennett JJ).

17    Further, leave to appeal will not be granted where there are no reasonable prospects of success on the appeal: see FJE20 v Minister for Home Affairs [2022] FCAFC 45; 293 FCR 14 at [9] (Allsop CJ, Mortimer and SC Derrington JJ). The Court is to consider the appeal at a “reasonably impressionistic level” and assess whether the appeal is “sufficiently arguable”: Chen v Birbilis [2023] FCA 1644 at [26] (McEvoy J) and the authorities there cited.

Consideration

Delay and extension of time

18    Rule 35.13 of the Rules requires that an application for leave to appeal be filed within 14 days after the judgment was pronounced or the order was made. As explained, this appeal was lodged on 2 September 2025. The period of delay was over two months. The applicant provided a number of explanations for that delay.

19    First, the applicant submits that she was medically and functionally impaired from 13 June to at least 27 June 2025. This submission was supported by a medical certificate dated 23 June 2025 which provides that the applicant suffers from a number of comorbidities with the result that tasks with a complex nature deplete her energy quickly. The applicant also provided a further fitness certificate by a nurse practitioner which declared the applicant unfit for work for the period of 7 July to 18 July 2025. The applicant submits that she was impaired by illness up to 23 July 2025.

20    The applicant submits that she commenced drafting the appeal documents on or around 26 July 2025.

21    Second, the applicant submits that because she is a person that suffers from multiple disabilities that significantly reduce her “effective physical and cognitive capacity”, her ability to prepare and file the appeal material was reduced. The applicant annexed to her affidavit a medical certificate from her doctor which states the primary comorbidities that the applicant suffers from, and recommends that management of the applicant’s conditions includes “not exceeding daily capacity, pacing herself and rest[ing] when needed”.

22    Third, the applicant relies on the fact that she is a litigant in person in a number of proceedings in Queensland and Western Australia. These proceedings had “multiple hearings” in late July and August 2025 that the applicant had to prepare for which, she submits, “interrupt[ed] the finalisation of the appeal documents”. Due to the work the applicant completed in preparation for these hearings, during a time in which she was recovering from illness, the applicant deposed that she was “forced to exceed [her] functional capacity” leading to “a post exertional malaise crash” which has “significantly reduced [her] functional capacity”.

23    I accept that the applicant suffers from a number of comorbidities which impact her day to day functioning, and I accept that the applicant suffered a further illness on or around 13 June to 23 July 2025 which further impacted her ability to prepare the appeal documents. However, I do not consider the period of the delay is fully explained. On the material before me there is not a complete explanation for the delay between 23 July 2025, when the applicant recovered from illness, and 2 September 2025, when the applicant’s appeal material was lodged. While I accept that the applicant attended and prepared for “multiple hearings” (on 28, 30 and 31 July, and 18 and 19 August 2025), and that caused a “post exertional malaise”, I am not satisfied that fully explains the imposition created by those hearings or fully and adequately explains the delay up to 2 September 2025.

Prejudice and extension of time

24    The applicant submits, and I accept, that there is no prejudice to the respondent, noting that they did not contest the suppression order application. However, the absence of prejudice is not in itself enough to justify the grant of extension of time: see BQQ15 at [33] (Yates, Wheelahan and O’Bryan JJ), citing Hunter Valley Developments at 348–9 and Parker v The Queen [2002] FCAFC 133 at [6] (Spender, O’Loughlin, Dowsett JJ).

Merits of the proposed appeal – extension of time and leave to appeal

25    The applicant’s draft notice of appeal contains seven grounds of appeal. They are described as follows:

(1)    error of law in misapplying s 37AG(1)(a) of the Federal Court Act;

(2)    failure to consider relevant evidence and/or making findings unsupported by evidence;

(3)    error in construing and applying the threshold of “necessity” under s 37AG(1)(a);

(4)    misapplication of s 37AG(1)(c), the necessity to protect safety;

(5)    denial of procedural fairness;

(6)    misuse of discretion resulting in miscarriage of justice; and

(7)    the decision gave rise to serious prejudice in the conduct of other litigation in which the applicant is a party, thus affecting the fairness and integrity of those proceedings.

26    Grounds (1), (2), (3) and (7) concern the primary judge’s conclusion that the orders sought were not necessary to prevent prejudice to the proper administration of justice. I will deal with them together. Grounds (2) and (4) concern the primary judge’s conclusion that the orders sought were not necessary to protect the safety of any person. I will also deal with those together. Grounds (5) and (6) are considered below under the heading “other grounds”. The merits necessarily are relevant to both the question of extension of time and leave to appeal.

Necessary to prevent prejudice to the proper administration of justice

27    The primary judge set out and described the relevant provisions of the Federal Court Act under which the orders were sought: ss 37AE, 37AF and 37AG. At [12]-[13] of the primary judgment his Honour set out the applicable principles in respect of s 37AG(1)(a) and concerning the question whether the orders were necessary to prevent prejudice to the proper administration of justice. There was no meaningful challenge before me to those principles.

28    In summary the applicant’s draft notice of appeal alleges the following failures:

(a)    that the primary judge failed to “recognise” that the publicity of the Federal Court proceedings would cause prejudice to the applicant’s proceedings in other courts. I reject this submission. The primary judge properly considered the impact of the proceedings to proceedings in other courts at [36]–[40];

(b)    that the primary judge stated that the protection from prejudice in the administration of justice was the responsibility of other jurisdictions. I consider this submission does not accurately reflect the primary judge’s conclusion at [40]; and

(c)    that the primary judge failed to give weight to evidence of the “misuse of tribunal and court material” in the other proceedings in which the applicant is a party and the adverse consequences. I consider that these matters were properly considered by the primary judge at [40] of the primary judgment.

29    I do not consider that these complaints, together with the other issues raised by grounds (1), (2), (3) and (7), have reasonable prospects of success.

30    I also consider that the general complaint of a misapplication of s 37AG(1)(a) has no reasonable prospects of success. First, his Honour proceeded on the basis most favourable to the applicant, namely that the “‘proper administration of justice’ for the purposes of s 37AG(1)(a) is not limited to the administration of justice by this Court”: see primary judgment at [37]. Second, his Honour then assessed the evidence and submissions before him directed at that question: see the primary judgment at [33], [36]-[40]. I see no error in that process. I see no failure to address or “weigh” any relevant evidence. I see no error in his Honour’s approach to whether the orders were “necessary”. I do not consider that these grounds have any reasonable prospects of success. For the same reasons, I do not consider that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered on appeal.

Necessary to protect the safety of any person

31    At [14] of the primary judgment the primary judge set out the applicable principles in respect of s 37AG(1)(c) and concerning the question as to whether the orders were necessary to protect the safety of any person. There was no meaningful challenge to those principles before me.

32    In summary the applicant’s draft notice of appeal alleges the following failures by the primary judge:

(a)    a “failure to properly consider or give weight to … evidence of ongoing misuse of tribunal or court material in other litigation”. This matter was properly identified and considered by the primary judge at [17]-[26], [33]-[34], and [42].

(b)    a “failure to properly consider or give weight to …[the] nature and extent of the online publications about the appellant evidencing serious and ongoing cyber abuse”. This matter was properly considered by the primary judge at [17]-[26], [33]-[34], and [42].

(c)    “[d]iscounting the appellant’s sworn evidence [and submissions] of trauma … and mental health impact due to public exposure of these proceedings”. This matter was properly considered by the primary judge at [34], [42] and [43] of the primary judgment; and

(d)    “[f]ailing to consider that repeated online harassment, doxing and publication of sensitive medical material … present risk of serious psychological harm to the appellant”. This matter was properly considered by the primary judge at [34], [42] and [43].

33    I do not consider that these complaints, together with the other issues raised by grounds (2) and (4), have reasonable prospects of success. His Honour assessed the evidence before him directed at the question of whether the orders were necessary to protect the safety of any person: see the primary judgment at [34], [42] and [43]. I see no failure to address or “weigh” any relevant evidence. I see no error in his Honour’s approach to whether the orders were “necessary”.

34    Separately, I consider the submission that his Honour imposed a “requirement” for expert medical evidence has no reasonable prospects of success. While his Honour referred to expert evidence provided in similar applications, his Honour did not impose such a requirement but rather assessed the evidence before him (at [42]-[43]) and concluded that “there is no evidence upon which the Court could be sufficiently satisfied of the existence of a possibility of harm of such gravity & likelihood that, without the order sought, the risk of prejudice to the applicant’s safety would reasonably be regarded as unacceptable”.

35    I do not consider that these grounds have any reasonable prospects of success, and for the same reason, I do not consider that the decision of the primary judge in respect of these matters is attended with sufficient doubt to warrant it being reconsidered on appeal.

Other grounds

36    The applicant’s complaint about a denial of procedural fairness is related to her complaint that the primary judge imposed a requirement of expert evidence as a precondition for orders under s 37AG(1)(c). Having assessed that complaint as having no reasonable prospects of success I form the same view about the complaint of a denial of procedural fairness.

37    The remaining ground complains about a “misuse of discretion” by ignoring, failing to consider or giving no weight to relevant matters. This ground overlaps with the complaints identified in respect of s 37AG(1)(a) and (c). For the reasons explained above, I consider that those grounds have no reasonable prospects of success.

Further evidence

38    In the applicant’s affidavits of 2 September 2025 and 27 November 2025, the applicant identified what she described as new evidence that was not before the primary judge. The applicant deposed that the judgment of the primary judge has been circulated, which has led the respondent to the applicant’s defamation proceedings and associates of that respondent to identify personal and medical information of the applicant’s and seek to rely on it in those proceedings. The applicant relies on those events to say that the decision of the primary judge has been “used to prejudice the administration of justice, as [she] deposed would happen”. The applicant explains that she will seek leave to rely on that evidence if an extension of time and leave to appeal is granted. The applicant accepts that “this further evidence … was not available at the time of the suppression orders application hearing on 9 [June] 2025”.

39    For present purposes, the applicant’s draft notice of appeal raises errors on the part of the primary judge in the weighing of evidence or failure to consider certain matters. The new evidence does not directly relate to the present grounds raised by the applicant in the draft notice of appeal; the primary judge could not of course have been in error for failing to consider matters that had not yet occurred. To the extent that the applicant seeks to rely on the new evidence in this application to say that the decision of the primary judge is cast into sufficient doubt to warrant the granting of leave to appeal, I reject that submission.

Conclusions on merits of the appeal

40    In the circumstances explained above, I consider that the appeal has no reasonable prospects of success and that the decision of the primary judge is not attended with sufficient doubt to warrant it being reconsidered on appeal.

Substantial injustice and leave to appeal

41    I do not consider that any substantial injustice would flow to the applicant if leave to appeal were refused. That is because, as I have explained, I consider that the appeal has no reasonable prospects of success and is not attended with sufficient doubt to warrant it being reconsidered on appeal

Disposition

42    In all of the circumstances set out above, and considering the lack of a complete explanation for the delay together with my assessment that the appeal has no reasonable prospects of success and accordingly the lack of any substantial injustice, the application for both extension of time and leave to appeal is dismissed.

Associate:

Dated:    10 December 2025