Leigh v National Disability Insurance Agency

This case was not a privacy claim against a business. It was a Federal Court procedural decision about whether a party could keep her identity and filed documents out of public view while pursuing an appeal-related application connected with the National Disability Insurance Scheme.

The applicant was seeking an extension of time to start an appeal from an Administrative Review Tribunal decision. That tribunal matter itself concerned review of an NDIA decision about approval of a statement of participant supports under the NDIS Act. Before the Court dealt with the extension issue, the applicant asked for two forms of protection: a pseudonym order and an order suppressing all documents filed so far from disclosure to anyone other than the respondents.

The applicant said she had experienced years of online abuse. Her affidavit alleged extreme defamation, stalking, harassment, doxing and offensive cyber abuse by two named individuals. She referred to separate defamation proceedings, contempt-related proceedings, and restraining-order proceedings in Western Australia. She also relied on earlier AAT orders that had prevented publication of identifying information and allowed her to use a pseudonym in that forum.

The first respondent did not oppose the orders. But that did not decide the matter. The Federal Court still had to apply its own legislation and decide whether the requested confidentiality orders were legally justified.

The Court had to decide whether to make suppression or non-publication orders under Part VAA of the Federal Court of Australia Act 1976 (Cth). The judgment explains that a pseudonym order of the kind sought here is treated as a suppression order in this context. The Court also emphasised that, when deciding whether to make such an order, it must 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 two grounds identified in the judgment. First, she said the orders were necessary to prevent prejudice to the proper administration of justice. Secondly, she said the orders were necessary to protect her safety. The Court stressed that the available grounds are exhaustive and that the operative word is necessary. That is a strong test. It is not enough that an order would be desirable, convenient, reasonable or sensible.

The judgment also drew a clear distinction between the Federal Court's test and the AAT's earlier approach. The AAT had acted under a provision allowing orders where that was desirable because of the confidential nature of evidence or for another reason. The Federal Court said its own legislation imposed a significantly more demanding threshold. So an earlier tribunal anonymity order did not automatically entitle the applicant to the same protection in this Court.

The applicant relied on a two-page affidavit affirmed in May 2025, together with annexures and submissions. The affidavit referred to AAT pseudonym and non-publication orders made in July 2024. It also described alleged online abuse dating back to 2016 and referred to defamation and contempt-related proceedings said to be ongoing.

The affidavit annexed a short extract from an interlocutory decision in the defamation proceedings. According to the Federal Court's summary, that extract recorded that many online posts used crude, insulting and offensive language about the applicant. The affidavit also annexed transcript material from a Magistrates Court hearing concerning a restraining-order application. From that material, the Federal Court understood that an interim violence restraining order had been granted after the applicant described daily cyber abuse and public accusations against her, but that the order was later dismissed and an appeal had been heard with decision reserved.

The applicant also attached copies of Facebook posts that she said were made by the people involved. The Court accepted that many of the posts showed dislike of the applicant, frustration about legal proceedings she had commenced, and attempts to discredit her to members of a Facebook group. The posts also focused on her crowd funding for legal proceedings and the effect of adverse costs orders. But the judge said that, on the Court's reading, none of the posts contained direct or implied threats to the applicant's safety.

The final paragraph of the affidavit said that if the relevant people or their associates found out about the Federal Court appeal, the applicant would be subjected to further defamation and cyber abuse, and that information from the matter might be used against her in other proceedings as had allegedly happened before.

The Court dismissed the interlocutory application. The orders at the start of the judgment make that result clear, and the reasons explain why the judge was not persuaded that the statutory grounds had been established.

First, the Court rejected the applicant's broader privacy-based arguments. The judgment records that the applicant relied on dignity, privacy and confidentiality concerns, particularly as a person with a disability and in relation to medical and health-related information. The Court accepted that the applicant strongly believed privacy protection was highly desirable. But the Court said that belief was not enough. Generalised privacy concerns did not demonstrate potential prejudice to the proper administration of justice or a risk to safety sufficient to satisfy the statutory test.

Secondly, the Court rejected the argument that the earlier AAT pseudonym order should effectively continue in the Federal Court. The judge said that, absent contrary legislative intention, a suppression or non-publication order could not be made in the Federal Court simply because another court or tribunal had exercised a different statutory power. The AAT's test was described as significantly less demanding than the Federal Court's test.

Thirdly, on the administration of justice ground, the Court found the evidence too thin. The applicant said opponents in other proceedings might obtain information from the Federal Court matter and use it against her. But the Court said there was a complete absence of evidence explaining how the requested orders were necessary to prevent prejudice to the proper administration of justice in those proceedings. As to the appeal concerning the dismissed interim VRO, the Court said it was difficult, if not impossible, to see how the orders could be necessary where decision had already been reserved.

The available reasons also show that the Court was not satisfied by the safety case on the material summarised. The judge had already observed that the annexed posts did not contain direct or implied threats to safety. The published text available here cuts off near the end of the reasons, so the final wording of the Court's analysis on that ground is incomplete. Even so, the outcome is clear: the Court was not persuaded to make the orders and dismissed the application.

This decision matters because many businesses confuse privacy compliance with court confidentiality. They are different issues. A business may have strong obligations to protect personal information in ordinary operations, but once a dispute reaches court, the open justice principle becomes central. The Court will not suppress names or documents just because the material is sensitive, embarrassing, reputationally harmful or commercially awkward.

That is especially important for businesses holding health information, disability records, complaint files, HR material, internal investigation documents, safeguarding reports or customer communications. If those documents are filed in court, they may become accessible unless a narrow and well-supported order is made. This case shows that obtaining such an order requires more than saying the material is private or that publication may cause distress.

The case also shows that confidentiality settings do not necessarily travel between forums. A tribunal, regulator, disciplinary body or internal process may have one threshold for anonymity, while the Federal Court applies another. If your business has been operating under a confidential process elsewhere, do not assume the same protection will continue once the matter moves into court.

Another practical lesson is evidentiary discipline. The Court repeatedly focused on the lack of detailed evidence connecting the requested orders to the statutory grounds. For businesses, that means any confidentiality application should be built around specific facts. What exact harm is feared? How would publication create that harm? Why is the order necessary rather than merely helpful? Why is the proposed order no broader than needed?

The judgment is dated 13 June 2025. The hearing took place on 9 June 2025. The Court records that the applicant appeared in person, the respondents did not appear at the interlocutory hearing, and the first respondent had indicated it did not oppose the orders sought. The Court nevertheless dismissed the interlocutory application for suppression orders.

The published reasons available here are detailed but cut off near the end. The result is clear, but readers should be aware that the final wording of the Court's reasoning on the safety ground is not fully reproduced in the available text.