Leigh v National Disability Insurance Agency (Extension of Time and Leave to Appeal)

Leigh v National Disability Insurance Agency (Extension of Time and Leave to Appeal) [2025] FCA 1559 is a Federal Court decision about a late attempt to appeal an interlocutory ruling. The interlocutory ruling had refused a pseudonym order and suppression of documents in related Federal Court proceedings.

The Court dismissed the application for an extension of time and leave to appeal. The catchwords record three central reasons: the application was filed two months late, there was not a complete explanation for the delay, and the proposed appeal had no reasonable prospects of success.

For business readers, the case is mainly about court confidentiality and timing. It shows that the Federal Court treats open justice as the default position, and that confidentiality orders need to be justified under the Court’s own statutory framework with specific evidence. It also shows that weak merits can make a late appeal impossible to rescue.

Ms Tracy Leigh was already pursuing a substantive Federal Court matter linked to a National Disability Insurance Agency decision about her participant’s plan. In that substantive matter, she sought an extension of time to appeal from an Administrative Review Tribunal decision that had dismissed her application.

Before the substantive issues could be heard, she asked the Federal Court to let her proceed under a pseudonym and to suppress certain documents. Her affidavit said that she had previously obtained non-publication and pseudonym orders in the Administrative Appeals Tribunal in July 2024. She also described a long-running pattern of alleged defamation, stalking, harassment, doxing and offensive cyber abuse by two individuals, together with related legal proceedings she had brought against them.

Her evidence referred to a 2023 application for a Misconduct Restraining Order in the Magistrates Court of Western Australia, an interim Violence Restraining Order that she said was later dismissed, and an appeal she filed in August 2024. She also said that one of the individuals and an associate had continued stalking and harassing her online.

The practical concern she raised in the Federal Court was that if those people or their associates discovered she had proceedings on foot in the Court, she would be exposed to further defamation and cyber abuse. She also feared that information from the Federal Court matter could be used against her in other proceedings.

The primary judge refused the pseudonym and suppression application in June 2025. Ms Leigh then sought leave to appeal that refusal, but she did not file within the 14 day period. Instead, her application for extension of time and leave to appeal was lodged on 2 September 2025, more than two months after the 27 June 2025 deadline.

The Court had to decide two linked questions. First, should time be extended so that a late application for leave to appeal could be heard? Second, if time were extended, did the proposed appeal have enough merit to justify leave to appeal from an interlocutory decision?

The proposed appeal itself focused on the earlier refusal of pseudonym and suppression orders under the Federal Court of Australia Act 1976 (Cth). The applicant argued, in substance, that the primary judge had misapplied the statutory test, failed to consider evidence, denied procedural fairness and misused discretion.

The judgment explains that the primary judge had considered the statutory scheme in Div 2 of Pt VAA of the Federal Court Act. Section 37AE requires the Court, when deciding whether to make a suppression or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The applicant relied on the grounds reflected in s 37AG(1)(a) and (c), namely necessity to prevent prejudice to the proper administration of justice and necessity to protect the safety of any person.

That meant the Court was not deciding whether confidentiality would be convenient, desirable or reassuring. It was deciding whether the proposed appeal had any real prospect of showing that the primary judge had erred in concluding that the orders were not necessary under the Federal Court Act.

Dowling J dismissed the application for an extension of time and leave to appeal. The Court applied established principles on extensions of time and interlocutory leave to appeal. The judgment refers to the Hunter Valley Developments principles on extension of time, including that time limits are not to be ignored, there must be some acceptable explanation for delay, prejudice is relevant, absence of prejudice is not enough, and the merits of the substantial application matter. It also refers to the Décor Corporation approach to leave to appeal from interlocutory decisions, including whether the decision is attended by sufficient doubt and whether substantial injustice would result from refusing leave.

The Court also noted that leave will not be granted where there are no reasonable prospects of success, and that the proposed appeal is assessed at a reasonably impressionistic level to see whether it is sufficiently arguable.

On the merits, the Court was not persuaded that the proposed appeal was arguable. The judgment summarises the primary judge’s reasons for refusing the pseudonym and suppression orders. First, the applicant’s generalised privacy concerns were found to fall short of showing potential prejudice to the proper administration of justice or a risk to safety. Second, the fact that the AAT had made pseudonym orders did not automatically entitle the applicant to equivalent treatment in the Federal Court. The Court accepted that the AAT had been exercising a different statutory power and that the burden under the Federal Court Act is significantly more demanding.

Third, the primary judge had rejected the argument that the orders were necessary to prevent prejudice in other proceedings. The evidence did not establish that the orders sought were necessary for that purpose, and any prejudice in those separate matters was for the courts hearing them to manage. Fourth, the primary judge had found insufficient evidence to establish that the orders were necessary to protect the applicant’s safety. The judgment specifically notes the application of AB (a pseudonym) v CD (a pseudonym) and the need for evidence of a possibility of harm of such gravity that, without the order, the risk would reasonably be regarded as unacceptable.

Against that background, the proposed appeal had no reasonable prospects of success. Combined with the more than two month delay and the absence of a complete explanation for that delay, the application failed.

One of the most useful parts of this decision for business readers is the Court’s treatment of the earlier AAT orders. Ms Leigh had previously obtained non-publication and pseudonym orders in the AAT. But the Federal Court held that this did not automatically entitle her to proceed on the same basis in the Court.

The reason was not procedural technicality for its own sake. It was that the two forums operate under different statutory schemes. The judgment says the AAT had exercised power under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), while the Federal Court had to apply the more demanding requirements in ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth), read with s 37AE and its emphasis on open justice.

For businesses, this distinction is important. A confidentiality arrangement or order in one setting does not necessarily travel with the dispute into another setting. That can happen when a matter moves from a tribunal to a court, from a regulator to a court, or from a private process such as mediation into litigation. The legal test changes with the forum.

So if your business has already secured confidentiality elsewhere, the next question should be: what is the exact legal basis for confidentiality in the new forum? You may need fresh evidence, a fresh application, and a different argument. Assuming that an earlier order will simply carry over can leave sensitive material exposed.

This case sits near privacy topics because it concerns anonymity, suppression and sensitive personal allegations. But for most businesses, the practical lesson is about litigation management rather than privacy compliance. The Federal Court is not a private dispute room. Open justice is the default, and the Court requires a clear statutory basis and evidence before it will restrict public access to names, documents or reasons.

That matters in disputes involving customer complaints, employee allegations, health information, cyber incidents, online harassment, shareholder conflict, fraud allegations or regulatory investigations. Businesses often assume that because information is sensitive, personal, commercially awkward or reputationally damaging, the Court will keep it confidential. This decision is a reminder that the Court asks a different question: is confidentiality necessary under the legislation?

The case also shows that evidence quality matters. General concerns, predictions or broad assertions may not be enough. If a business wants a suppression order, it should think carefully about what evidence can show the relevant risk and why the order is necessary. Depending on the issue, that may involve evidence about safety, prejudice to the administration of justice, the nature of the information, the likely consequences of publication, and why lesser steps would not address the problem.

Timing is the other major lesson. Interlocutory appeal deadlines are short. If your business wants to challenge a procedural ruling, delay can quickly become a separate and decisive problem. Even if there is some explanation for lateness, the Court may still refuse an extension if the proposed appeal lacks merit. In practice, that means businesses should assess appeal options immediately after an interlocutory decision is delivered.

Finally, this case suggests a broader planning point. If a dispute is likely to involve highly sensitive material, confidentiality strategy should be considered before filing, not after. That includes deciding what material really needs to be filed, whether redaction is possible, whether a confidentiality application is realistically supportable, and whether related proceedings in other forums create additional risks.

The judgment is also a reminder that confidentiality disputes are often driven by both documents and conduct. Here, the applicant’s concerns were not abstract. They were tied to alleged online harassment, alleged misuse of identifying information, and the possibility that documents filed in the Federal Court could be accessed and then used in other disputes.

For businesses, that means confidentiality planning should cover more than just whether a name appears on the court file. It should also cover what supporting documents reveal, whether annexures contain identifying details, whether reasons from another forum can be linked back to the business or individuals involved, and whether parallel proceedings create a pathway for information to be repurposed.

At the same time, this case shows that the Court will not make orders simply because those risks are asserted. The evidence must be strong enough to show necessity under the statutory grounds relied on. If the concern is prejudice in another proceeding, the Court may view that as something for the other court to manage. If the concern is safety, the evidence must be sufficient to show a risk of harm of the required seriousness.

That practical distinction matters. Businesses should separate out different concerns and match each concern to the right legal mechanism. Some issues may support a confidentiality application. Others may be better addressed through redaction, careful drafting, procedural directions, or applications in the other proceeding where the alleged prejudice may arise.

The primary judgment refusing the pseudonym and suppression application was delivered on 13 June 2025. The 14 day period for seeking leave to appeal expired on 27 June 2025. The extension of time and leave application was lodged on 2 September 2025. Dowling J heard and decided the matter on 2 December 2025, and the reasons were published on 10 December 2025.

The result was final for this application: the extension of time and leave to appeal application was dismissed.

Can we keep a company name out of a Federal Court case just because publicity may hurt the business?

Not usually on that basis alone. The Court starts from open justice and requires a statutory basis and evidence showing necessity.

If a regulator, tribunal or mediator treated material as confidential, is that enough?

No. You need to check the legal rules of the Federal Court itself. Different forums apply different tests.

Can we rely on a fear that another party will weaponise court documents elsewhere?

This case suggests that may not be enough without strong evidence, and that any prejudice in the other proceeding may be for that other court to manage.

What should we do first if sensitive material may be filed?

Review what must actually be filed, consider redactions and procedural options, and get advice early on whether a confidentiality application is realistically supportable.

Does a late appeal always fail?

No, but lateness is a serious problem. The Court will usually want an acceptable explanation and a proposed appeal with sufficient merit.

This page is based on the published Federal Court of Australia judgment in Leigh v National Disability Insurance Agency (Extension of Time and Leave to Appeal) [2025] FCA 1559, including the Court’s catchwords, orders and reasons. The judgment records that it was an application for extension of time and leave to appeal against an interlocutory decision refusing pseudonym and suppression orders, and that the application was dismissed.

The page focuses on what the judgment says about open justice, the Federal Court statutory test for suppression-type orders, the difference between tribunal and court confidentiality settings, and the effect of delay on interlocutory appeal applications.