Federal Court of Australia

Tan v Commonwealth of Australia (Department of Defence) (No 2) [2026] FCA 1350

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's application to vacate the hearing of the 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

VANDONGEN J:

1    The applicant, Yenny Tan, applies to vacate the hearing of her appeal that is listed before me on 28 October 2026. In these proceedings, Ms Tan seeks an extension of time with which to appeal against a decision of the Federal Circuit and Family Court of Australia in Tan v Commonwealth of Australia (Department of Defence) [2025] FedCFamC2G 439. Orders were made on 19 June 2026 to program the filing of material, including written submissions, in order to facilitate the hearing of the appeal.

2    On 13 March 2026, I refused to grant leave to Ms Tan to issue a subpoena to the first respondent, the Department of Defence. Unhappy with my decision, Ms Tan has sought to appeal that decision in this Court. However, it appears that her attempts to file documents to commence such an appeal have failed. The registry has refused to accept those documents for filing on the ground that Ms Tan has no right to appeal to this Court from my decision not to grant leave to issue a subpoena. This is because, although I was sitting as a single judge when I made that decision, I was exercising this Court's appellate jurisdiction.

3    On 31 August 2026, Ms Tan sought to file an application for judicial review of a Registrar's decision to refuse to accept the documents by which she sought to appeal against my decision to refuse leave to issue a subpoena. However, on 2 September 2026, Feutrill J gave a direction pursuant to r 2.27(f) of the Federal Court Rules 2011 (Cth) that such documents not be accepted for filing without the leave of the Court.

4    Ms Tan has now lodged a document by which she seeks such leave. She says that her appeal hearing should be vacated pending the determination of that application for leave.

5    I also understand that Ms Tan has made a formal complaint regarding various refusals to accept her documents for filing. Ms Tan has informed me that the complaint concerns the history of her unsuccessful attempts to file documents in this matter, including her original notice of appeal and application regarding the subpoena.

6    In my view, the application to vacate the hearing must be refused.

7    Insofar as Ms Tan says the appeal should be vacated pending the determination of her application for leave to file an originating application for judicial review, it is not for me to determine whether leave should be granted, but as Ms Tan relies on that application for leave as a reason to adjourn this appeal, it is necessary for me to consider the prospects of that application succeeding. I have read Ms Tan's application for leave and her affidavit sworn on 10 September 2026 in support of that application. Ultimately, that application is concerned with obtaining leave to challenge a decision made by a Registrar not to accept for filing a notice of appeal and other accompanying documents by which Ms Tan seeks to appeal my decision not to grant her leave to issue the subpoena.

8    As I have previously tried to explain to Ms Tan, when leave was refused to issue a subpoena, the Court was exercising its appellate jurisdiction. That jurisdiction is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (Act). Pursuant to s 25(1AA)(a) of the Act, that jurisdiction is required to be exercised by a single judge in circumstances in which s 25(1AA)(b) does not apply. Section 24(1) of the Act does not confer jurisdiction on this Court to hear and determine appeals from a single judge exercising appellate jurisdiction under s 24(1)(d). Section 33(4) of the Act provides that:

An appeal must not be brought from a judgment of the Court constituted by a single judge exercising the appellate jurisdiction of the Court unless the High Court gives special leave to appeal.

9    Accordingly, there would appear to be very limited prospects of leave being granted to Ms Tan to file her application for judicial review. In those circumstances, I am not persuaded that her application for leave is a sufficient reason to vacate the listed hearing of the appeal.

10    Ms Tan has also not demonstrated that the hearing of the appeal should be vacated pending the resolution of her complaint to a Registrar regarding the filing of documents in these proceedings. The outcome of any such complaint cannot alter the path this matter has proceeded along to this point, and I am not satisfied that it has any bearing on the merits of the appeal or on Ms Tan's ability to prepare for, and appear at, the hearing of the appeal. This appeal has been listed since 19 June 2026 and the proceedings that are the subject of the appeal date back to March 2021.

11    In all of the circumstances as I have explained them, Ms Tan's application to vacate the hearing of the appeal must be dismissed.

Associate:

Dated:    16 September 2026