Federal Court of Australia

Gao v Australian Information Commissioner [2026] FCA 1023

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant file and serve any application for leave to appeal by 31 July 2026.

2.    The Respondent file and serve a Notice of Objection to Competency by 3 August 2026.

3.    The Respondent’s Notice of Objection to Competency and application for Summary Judgment be dealt with without an oral hearing.

4.    In accordance with Practice Note APP2: Content of Appeal Books and Preparation for Hearing (Practice Note APP2), the Respondent file and serve an outline of submissions, any evidence, and a list of authorities and legislation by 18 September 2026.

5.    In accordance with Practice Note APP2, the Appellant file and serve an outline of submissions, any evidence, and a list of authorities and legislation by 19 October 2026.

6.    Outlines of submissions are not to exceed 10 pages in length, including any annexures, and be easily legible using a font size of at least 12 points and one and a half line spacing
throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

7.    All documents be provided to the Court in electronic form in accordance with the format(s) specified in paragraph 4.3(2) of the eBooks Practice Note (GPN-eBOOKS).

8.    The Appellant read the Litigants in Person Practice Note (GPN-LIP) and sign and file the “Litigant in person - Acknowledgement form” found at Litigant in person Practice Note (GPN-LIP) acknowledgement form by 31 July 2026.

THE COURT NOTES THAT:

A.    In accordance with paragraph 2.1 of Practice Note APP2, any default of a requirement set out in the abovementioned orders or related Practice Note of more than 5 days is to be brought to the attention of the chambers of the judge hearing the appeal, or presiding judge if there is more than one judge, or the appeals registrar who will then give or arrange for appropriate directions. Other parties to the appeal are to be notified also.

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

NEEDHAM J:

1    These proceedings came before me for case management today. On the last occasion, I ordered that the appellant, Mr Peng Gao, have leave to file and serve any application for leave to appeal and any amended notice of appeal by 10 July 2026. I also referred him to a registrar for pro bono assistance. Unfortunately, that referral has not yet borne fruit. Mr Gao did file an amended notice of appeal and an affidavit in support of the amended notice of appeal, and that affidavit contended that Moshinsky J, on 30 January 2026, when he gave his judgment, gave the appellant leave to appeal on an oral application.

2    I have been able to view the transcript on the day that that judgment was delivered and Mr Gao sought, on that occasion, that his Honour give him consent to appeal. Moshinsky J said to Mr Gao in response:

You don’t need my consent or leave to appeal from this decision.

3    Mr Gao replied:

But [it] is better – is much better – if you feel you’re doing something in the file give me consent, better.

4    A little further down in the transcript, Mr Gao said:

I mean that you give me consent would be better. Otherwise, maybe I – or have leave.

5    And his Honour said:

There’s no need for consent or leave from me for you to appeal my decision. What I suggest is that you speak with the staff at the registry to get some assistance if you want to appeal. You should probably read the reasons for judgment first.

6    Moshinsky J’s reasons dismissed three interlocutory applications dated 4, 6 and 24 June 2025, and also dismissed the originating application for judicial review. The appellant took the view that his discussion with Moshinsky J on 30 January comprised an application for leave to appeal made orally pursuant to r 35.01 of the Federal Court Rules 2011 (Cth). Clearly, the application for leave was not made in a way which drew his Honour’s attention to this rule, and it was made more as a request for consent to appeal rather than a formal application for leave. That aside, his Honour clearly did not grant leave at that time.

7    On the last occasion before me, it was explained to Mr Gao that if he wished to appeal from interlocutory decisions, he would need to seek leave to do so. It is unclear to me whether Mr Gao accepts that, or whether he relies on only his appeal from the originating application, which is now supported by an amended notice of appeal.

8    Ms Cloudsdale, who now appears for the respondent, has sought that the respondent be granted an extension of time to file a proposed notice of objection to competency, and to apply for summary judgment, which application is to be heard on the papers. She has provided – albeit only yesterday – to the Court and to Mr Gao, proposed orders for the provision of submissions and evidence in support of those applications. I have determined and discussed with Mr Gao that I am prepared to give him a further two weeks to put on any notice for leave to appeal that he seeks. I am not sure that he will do so, but clearly that is up to him.

9    If he does, the respondent may not wish to proceed with the notice of objection to competency, although I note that Ms Cloudsdale indicated that there were issues arising from the way in which the matter is pleaded, taking into account the fact that Mr Gao is not represented. Accordingly, I will make the orders sought by the respondent with the addition of a further two weeks to allow for the filing of any application for leave to appeal by 31 July 2026.

10    I have also raised with Mr Gao the fact of the Litigants in Person Practice Note (GPN-LIP), which has recently come into force in this Court. The Practice Note deals with substantive matters such as how proceedings work; how the Court operates; how legal or other help can be sought; and importantly, the kind of behaviour which is required by the Court if the Court is to be able to manage a litigant in person, including that a litigant in person must act respectfully and honestly with judges, registrars, Court staff and lawyers for other parties; not shout, swear, threaten or be rude; and only contact the Court when you have to; and to copy in all other parties.

11    I do not say that Mr Gao has been swearing or has been threatening, but he has a tendency to speak over the Court and to interrupt, which does make even case management hearings difficult. Accordingly, I will ask Mr Gao to read the Practice Note and to sign the required acknowledgment, and to file that with the Court by 31 July 2026. If Mr Gao is not prepared to do so, then the matter will be relisted to discuss further steps. The Court has the power to stay proceedings for a period of time, or in serious cases indefinitely, where litigants in person are not prepared to comply with the requirements under the Practice Note regarding communication and conduct (see rr 5.25 and 5.30 of the Rules).

12    I will make those orders and provide them to the parties.

Associate:

Dated:    17 July 2026