Federal Court of Australia

Leigh v National Disability Insurance Agency [2025] FCA 623

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application for orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) is dismissed.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    In these proceedings, the applicant applies for an extension of time within which to start an appeal against a decision of the Administrative Review Tribunal (ART) to dismiss an application made pursuant to s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). In her application to the ART, the applicant sought a review of a decision made by the National Disability Insurance Agency under s 100(6) of the NDIS Act, which concerned the approval of a statement of participant supports under s 33(2) of that Act. At the time the applicant first sought that review, the ART was then known as the Administrative Appeals Tribunal (AAT).

2    By an interlocutory application, the applicant seeks an order that she be assigned a pseudonym and a further order that all documents that have been filed to date be suppressed from disclosure to any third party other than the respondents. In support of her application, the applicant relies on an affidavit that she affirmed on 14 May 2025, together with a written outline of submissions. The applicant also made oral submissions at the hearing of the application.

3    At the first case management hearing, the first respondent indicated that it did not oppose the orders sought by the applicant. Accordingly, the first respondent was not required to appear at the hearing of the interlocutory application.

4    The second respondent has previously indicated that it intends filing a submitting notice but has not yet done so.

5    For the following reasons, I am not persuaded that the orders sought by the applicant should be made. Accordingly, the applicant's interlocutory application must be dismissed.

The relevant legislative provisions

6    The relevant statutory provisions that confer power on this Court to make orders of the type sought by the applicant are found in Div 2 of Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA). For the purposes of those provisions, a 'non‑publication order' means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). Further, a 'suppression order' means an order that prohibits or restricts the disclosure of information (by publication or otherwise): s 37AA of the FCA.

7    Section 37AE provides that in 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'.

8    The power to make a suppression order or a non‑publication order is conferred by s 37AF, which is in the following terms:

37AF    Power to make orders

(1)    The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b)    information that relates to a proceeding before the Court and is:

(i)    information that comprises evidence or information about evidence; or

(ii)    information obtained by the process of discovery; or

(iii)    information produced under a subpoena; or

(iv)    information lodged with or filed in the Court.

(2)    The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

9    It may be noted that s 37AF(1)(a) empowers the Court to make a suppression order or non-publication order restricting the publication or other disclosure of information tending to reveal the identity of any party to a proceeding. In this case, the applicant seeks an order that she be allocated a pseudonym and that she be permitted to prosecute these proceedings in that name. In those circumstances, the order sought by the applicant is a suppression order: DSLB v Comcare [2023] FCA 1222 at [106] (Katzmann J) (DSLB).

10    The grounds for making a suppression or non-publication order are exhaustively set out in s 37AG:

37AG    Grounds for making an order

(1)    The Court may make a suppression order or non‑publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)    A suppression order or non‑publication order must specify the ground or grounds on which the order is made.

11    In this case, the applicant relies only on the grounds referred to in s 37AG(1)(a) and (c).

The relevant principles that must be applied

12    In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8]-[9], the Full Court summarised the well-settled principles to be applied when considering whether to make a suppression order or a non-publication order under s 37AF and s 37AG:

Suppression or non-publication orders should only be made in exceptional circumstances. That is both because the operative word in s 37AG(1)(a) is 'necessary' and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle.

The critical question is whether the making of a suppression or non-publication order is 'necessary to prevent prejudice to the proper administration of justice'. The word 'necessary' in that context is a 'strong word'. It is nevertheless not to be given an unduly narrow construction. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it. There is no exercise of discretion or balancing exercise involved.

(citations omitted)

13    To those principles, the following may be added:

(a)    Mere embarrassment, inconvenience, annoyance, or unreasonable or groundless fears will not be enough to justify the making of a suppression or non-publication order: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 at [30] (Foster J); and Australian Competition and Consumer Commission v Air New Zealand Limited (No 12) [2013] FCA 533 at [7] (Perram J). As Kirby P said in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms. A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

(citations omitted)

(b)    It is not enough that the making or continuation of a suppression order or non-publication order may be convenient, reasonable, or sensible, or that it would serve some notion of the public interest, or that as a result of some balancing exercise an order of that sort appears to have one or more of those characteristics: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [31].

(c)    The onus on an applicant to persuade a court to make an order under s 37AF has been described as 'a very heavy one': Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438 at [16] (Madgwick J); and Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] (Edelman J).

14    In relation to the ground that suppression or non-publication orders are necessary to protect the safety of any person, I gratefully adopt the following observations of Jackson J in Fletcher v Brown (No 2) [2021] FCA 725 at [37]-[38]:

In relation to the specific ground of suppression in relation to the safety of a person, in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 at [15], Nettle J said of an equivalent provision (s 77RF(1)(c) of the Judiciary Act 1903 (Cth)):

The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of 'necessary to protect the safety of any person' that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

So it is not necessary to show that, absent the order being made or extended, it is probable that a person will suffer harm. Rather, the necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person: Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36 at [16]‑[17] (Besanko J). But there must at least be a demonstrable or real risk to the safety of an applicant for a suppression order (or another person) if the order is not made (or extended): see C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [16] (Katzmann, Wigney and Abraham JJ). In Royal Women's Hospital v Medical Practitioners Board of Australia (No 2) [2007] VSCA 284 at [11] Maxwell P (Curtain AJA agreeing) said:

It is axiomatic of course that neither the scope nor the duration of a suppression order should be any greater than is demonstrably necessary. What occurs in court should be open and should be the subject of unfettered publication and a constraint on publication will only be imposed where clear need has been demonstrated.

The evidence relied on by the applicant

15    As I have already said, the applicant relies only on an affidavit she affirmed on 14 May 2025 in support of her interlocutory application.

16    In that two-page affidavit, the applicant commences by noting that in July 2024, she applied to the AAT for non-publication orders in relation to her 'identifying information' and for an order that she be assigned a pseudonym. The applicant then says that orders were made by the AAT, pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), that any information that could identify her was not to be published by the Tribunal, and that she be assigned a pseudonym. A copy of those orders is annexed to the applicant's affidavit.

17    The applicant then alleges that since December 2016, two individuals, who she names, have subjected her to what she says amounts to 'extreme defamation, stalking, harassment, doxing and offensive cyber abuse'. As I understand it, 'doxing' is a term used to describe the practice of maliciously publishing personal information about a person on the internet. The applicant then goes on to say that she filed a defamation claim and 'contempt of court proceedings' against these two people in 2018 and 2019 respectively, and asserts that those proceedings are ongoing.

18    The applicant's affidavit is short on details about those proceedings. However, it at least appears that those proceedings concern allegations that the applicant was defamed in publications about her on the internet. Annexed to the applicant's affidavit is a short extract that appears to have been taken from an interlocutory decision concerning a strike-out application in the defamation proceedings, which was made in August 2024. In that extract, the relevant judicial officer referred to several online 'posts' and said that many of the posts used 'crude, insulting and offensive language in reference to [the applicant]'. The applicant's affidavit contains no further details about the proceedings.

19    The applicant then says that in 2023, she filed an application for a Misconduct Restraining Order (MRO) in the Magistrates Court of Western Australia against one of the two individuals. Annexed to the applicant's affidavit is a short extract of the transcript of the applicant's application for an MRO that took place in the Magistrates Court in July 2023. Based on that extract, it appears that an interim Violence Restraining Order (VRO) was instead granted to the applicant. For present purposes, it is unnecessary to discuss the differences between an MRO and a VRO under the Restraining Orders Act 1997 (WA). However, from the few pages of the transcript that the applicant decided to annex to her affidavit, it seems that the magistrate's decision to grant an interim VRO was in part based on some very brief oral evidence given by the applicant. In that evidence, the applicant described herself as a 'consumer advocate' who had been 'assisting consumers in a liquidation of a recreational vehicle company in Victoria'. The applicant also told the magistrate that the person who she was seeking a restraining order against had been 'cyber abusing' her on almost a daily basis since September 2016, apparently on Facebook, and that he had been publicly accusing her of misleading the members of her advocacy group. Based on that evidence, the magistrate concluded that the applicant had been subjected to 'stalking behaviour' and granted an interim VRO.

20    When granting the interim VRO, the magistrate said that the person bound by the order had the opportunity to object to that order within 21 days, and that if an objection was made, there would be a hearing to determine whether to make a final VRO.

21    It is evident that there was an objection because the applicant says in her affidavit that a 'final hearing' was listed to take place in mid-2024. However, the applicant says that the interim VRO was 'dismissed' and the final hearing was 'cancelled' based on 'untrue' claims by the person bound by the order that she had 'repeatedly breached the orders and had been obstructive in the preparation of the final hearing'. According to the applicant, she filed an appeal against the dismissal of the interim VRO in August 2024, which has since been heard, and she is now waiting for a decision as to whether the application for a VRO will be remitted back to the Magistrates Court for a re-hearing. The applicant alleges that the person who was bound by the interim VRO has continued 'stalking and harassing' her online.

22    In her affidavit, the applicant goes on to say that she began being stalked and harassed by an associate of the person bound by the interim VRO in 2019. The applicant says that this person frequently posts online, that he lives in Perth, and that he has intimated on Facebook that he has visited her home without her consent. The applicant says that in or about April 2024, she applied for an MRO against this person and his partner. However, the applicant says that she later withdrew those applications because of her health and because she was juggling several other court cases at the same time.

23    Attached to the applicant's affidavit are copies of several of what appear to be posts made on a Facebook group that I infer is or has been under the applicant's control. The applicant alleges that those posts were made by the person previously bound by the interim VRO. The applicant also alleges that several posts were made by that person's associate and his partner.

24    It is unnecessary to summarise the posts in detail. Many of the posts appear to relate to the legal proceedings to which I have already referred. It is clear that the authors of most of the posts do not like the applicant, and they express frustration about legal proceedings she has commenced. Many of the posts appear to have been written for the purpose of discrediting the applicant to the members of the Facebook group. The posts also evidence a focus on the applicant's use of 'crowd funding' to pay for legal proceedings, and on the potential effect of adverse costs orders that have apparently been made against the applicant. However, based on my reading of the posts attached to the applicant's affidavit, none of them contain any direct or implied threats to the applicant's safety.

25    The final paragraph of the applicant's affidavit reads as follows:

If [the person bound by the interim VRO or his associate] or other close associates find out that I have this appeal in the Federal Court, I will be subjected to even further defamation and cyber abuse, particularly as a result of the publicly published but de-identified decisions of [the ART] which are improperly derisory. It may also be used against me in the proceedings against [those people], as they have done so previously with other matters.

26    Having summarised the evidence on which the applicant relies, it is then necessary to deal with the question of whether the Court should make the orders that she seeks.

Should the Court make the orders sought by the applicant?

27    Most of the applicant's written submissions are pitched at a relatively high level of generality. They tend to suggest that the orders sought are necessary to protect the applicant's rights to dignity, privacy and confidentiality, particularly as a person with a disability, and in relation to her personal medical and other health-related information. In support of those submissions, the applicant referred to various resources relating to people with disabilities that are available on the Court's website, to articles of the United Nations Convention on the Rights of Persons with Disabilities (adopted by General Assembly Resolution A/Res/61/106 in 2006), and to the Disability Discrimination Act 1992 (Cth).

28    It is obvious that the applicant believes that it is highly desirable that this Court make orders to protect her privacy, particularly in relation to information that has been filed in the Court about her medical conditions. Nevertheless, however strongly the applicant holds that belief, she must satisfy this Court that the orders she seeks are necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)) or that they are necessary to protect her safety (s 37AG(1)(c)).

29    In my view, the generalised privacy concerns raised by the applicant fall short of demonstrating that there is any potential to prejudice the proper administration of justice, or that there is any risk to the appellant's safety. As Jackson J said in Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 at [26] (Huikeshoven):

Cogent evidence is needed and a belief that the orders are necessary will not be sufficient: see Lew v Priester (No 2) [2012] VSC 153; (2012) 35 VR 216 at [14] (Davies J). That is not a matter of mere form but is for the purpose of ensuring that suppression orders are kept for exceptional cases. It is therefore necessary for the court to carefully scrutinise the justification for the proposed orders: PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45 at [54].

30    The applicant also argued, in effect, that if the orders sought were not made in these proceedings, the protection that a pseudonym the AAT ordered be used in those proceedings would be rendered nugatory. However, where another court or tribunal has ordered that in proceedings conducted before it, a person is to be referred to by a pseudonym, that person is not then automatically entitled to take part in proceedings before this Court on the same basis. Absent a legislative intention to the contrary, a suppression order or non-publication order cannot be made by this Court pursuant to s 37AF of the FCA simply because another court or a tribunal has exercised a different statutory power to afford a person the protection of a pseudonym.

31    When the AAT made suppression-type orders in the applicant's favour, including an order that the applicant be referred to by a pseudonym, it was exercising a power conferred by s 35 of the AAT Act. Having regard to the terms of that provision, the Tribunal was evidently satisfied that it was 'desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason': s 35(2). It may immediately be seen that the burden imposed by s 35 of the AAT Act is significantly less demanding than the one imposed by s 37AF and s 37AG of the FCA.

32    The power to make suppression orders or non-publication orders in this Court, including an order that a party be referred to using a pseudonym, is exhaustively provided for in s 37AF of the FCA. Further, that power may only be exercised on one or more of the grounds specified in s 37AG: Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435 at [30]-[33] (Merkel J, Finn and Stone JJ agreeing) (Herald & Weekly Times); Huikeshoven at [36]-[40], [66]-[68]; and DSLB at [102]. An order that the applicant be referred to by a pseudonym would not be justified on any of the grounds in s 37AG merely on the basis that it would be 'desirable to do so'.

33    Some of the applicant's written and oral submissions were, however, more sharply focused on the need to establish the grounds in s 37AG(1)(a) and/or s 37AG(1)(c). In that regard, the applicant submitted that the orders are necessary to prevent prejudice to the proper administration of justice in connection with legal proceedings that are currently on foot in other jurisdictions. Those proceedings concern the claims in defamation, the allegations of contempt of court, and an appeal against the dismissal of the interim VRO, which were referred to in the applicant's affidavit. In this respect, the applicant says the administration of justice will be prejudiced if her opponents in those other proceedings learn that she has commenced proceedings in this Court and are then able to obtain access to documents that have been filed to date and/or are then able to identify the publicly available, but anonymised, reasons of the ART from which she seeks to appeal. The applicant submits that the administration of justice in those proceedings will be prejudiced were this to occur because her opponents will then be able to use that information against her in those proceedings.

34    For similar reasons, the applicant submits that the orders are necessary to protect her safety, and, in particular, to protect her from psychological harm. As I understand it, the applicant submits that she suffers from a range of mental illnesses and/or psychological issues, some of which she says are directly related to her experiences while engaged in the other litigation to which I have referred. The applicant argues that those conditions will be aggravated and that she will be caused severe psychological distress, with a concomitant risk of self-harm, if third parties (including her opponents in those other legal proceedings) were to obtain access to the documents filed in this Court and/or the reasons of the ART, in the knowledge that they contain details relating to the applicant's health issues. The applicant also submits that there is a real risk that third parties will publish that information on social media and that this is equally likely to cause her psychological harm. As the applicant ultimately submitted at the hearing of her interlocutory application:

I live in terror, so the thought of being completely exposed to these people in these proceedings is also terrifying to me, and I think that makes it necessary for my psychological wellbeing at an absolute base-level minimum.

35    I am unable to accept the applicant's submissions.

36    In relation to the applicant's contention that the orders sought are necessary to prevent prejudice to the proper administration of justice in connection with legal proceedings in other jurisdictions, there is authority that suggests that the ground in s 37AG(1)(a) is concerned with prejudice in respect of the exercise by this Court of the judicial power of the Commonwealth: Herald & Weekly Times at [31]. However, there have been several occasions on which the Court has entertained applications for suppression orders on the ground that the orders are necessary to prevent prejudice to the proper administration of justice in relation to criminal proceedings being conducted in other courts: see, for example, Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 1279; Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243; and Australian Securities and Investments Commission v Dunjey (No 2) [2023] FCA 610.

37    As I have not had the benefit of any considered submissions on this issue, I will proceed 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.

38    However, the evidence upon which the applicant relies does not establish that the orders sought are necessary to prevent prejudice to the proper administration of justice in relation to proceedings that the applicant says are currently before other courts. The only evidence before me about those proceedings is the very limited evidence set out in the applicant's affidavit. As I have already said, that evidence is simply to the effect that the applicant filed a defamation claim in March 2018, and 'contempt of court proceedings' in June and August of the following year. While the applicant says that those proceedings are 'still ongoing', and she has attached a two-page extract from a decision that appears to relate to a strike-out application that was heard in July 2024, there is a complete absence of any other evidence about those proceedings. Importantly, there is nothing before me that in any way explains how the orders sought by the applicant are necessary to prevent prejudice to the proper administration of justice in respect of those proceedings.

39    The only other proceedings to which the applicant refers is an appeal against a decision to 'cancel' a final hearing in relation to an application for a VRO, and to 'dismiss' an interim VRO the applicant had obtained against a person said to have been a party in at least some of the proceedings to which I have already referred. The evidence before me in relation to the appeal is that the applicant filed an appeal in mid-2024 seeking orders that her application for a VRO be remitted back to the Magistrates' Court for a final hearing, that the appeal has now been heard, and that the decision has been reserved. It is difficult, if not impossible, to see how it could ever be concluded that the orders sought are necessary to prevent prejudice to the proper administration of justice in respect of those proceedings in circumstances in which the decision has been reserved.

40    In any event, I am unable to conclude that the orders sought are necessary to prevent prejudice to the proper administration of justice in respect of the various other proceedings the applicant says are ongoing simply because other parties to those proceedings might otherwise obtain information contained in the documents filed in this Court to date, or in the reasons of the ART. If those parties were to obtain that information, and attempted to use it in those proceedings, it would be a matter for the courts exercising jurisdiction in respect of those proceedings to guard against any prejudice to the proper administration of justice that might thereby be occasioned.

41    I am also of the view that the applicant has failed to establish that the orders are necessary to protect her safety for the purposes of s 37AG(1)(c) of the FCA.

42    This Court has previously made suppression orders, including orders anonymising parties to proceedings, on the ground that such orders are necessary to protect the psychological safety of any person: DSLB; and National Australia Bank Ltd v KRDV [2012] FCA 543; (2012) 204 FCR 436 (KRDV). However, although the applicant made assertions in her written and oral submissions that she, in effect, believes that the orders sought are necessary to protect her psychological safety, there is in fact no evidence in the applicant's affidavit of 14 May 2025 to support those assertions. Specifically, there is no evidence upon which the Court could be sufficiently satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the applicant's safety would reasonably be regarded as unacceptable: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6 at [15] (Nettle J).

43    I note that in DSLB there was unchallenged expert psychiatric evidence, and in KRDV there was unchallenged expert psychological evidence, which expressly addressed the issue of whether a suppression order was necessary to protect the relevant person's psychological safety. However, I do not have the benefit of any such expert evidence in this case. Accordingly, in circumstances in which cogent evidence is required to support a successful application for orders under s 37AF of the FCA (see Huikeshoven at [26]), even if the applicant's assertions about what she considers would be the likely effect on her psychological and psychiatric health had been made on oath, I would not have been prepared to conclude that the orders sought are necessary to protect the applicant's safety.

44    The applicant's interlocutory application for orders pursuant to s 37AF of the FCA must be dismissed.

Associate:

Dated:    13 June 2025