Pett v National Disability Insurance Agency (No 2)

This judgment came after a successful Federal Court appeal by Amanda Pett against a decision of the former Administrative Appeals Tribunal about her NDIS entitlements. The Tribunal had upheld an NDIA decision to reduce her entitlements by reference to compensation she had previously received in connection with her injuries. The appeal itself had already been allowed. What remained was a narrower but important procedural question: should certain spreadsheets used in the dispute stay suppressed and confidential after the appeal?

The spreadsheets were part of NDIA's internal working process for calculating a compensation reduction amount, or CRA. They were not just ordinary tables of figures. In native.xlsx format they contained embedded formulae and internal methodology used by NDIA in carrying out its functions. They also contained information specific to Mrs Pett's own circumstances. The judgment describes the inputs as including identifying details, settlement details, actuarial data about life expectancy and estimated lifetime support needs, and historical scheme data.

There were three spreadsheets. Two related to separate settlements and one combined them. In the Tribunal, they became Exhibit G. Mrs Pett also created modified versions by changing inputs so the spreadsheets produced a nil CRA, reflecting her argument that she had not received compensation for personal injuries in the relevant sense. Those modified versions became Exhibit F. In the Federal Court proceeding, spreadsheet material appeared in both native.xlsx form and PDF form through supplementary books and email lodgement to the Registry.

The Tribunal had already made a non-publication order covering spreadsheet material of this kind. During the Federal Court appeal, interim suppression and confidentiality orders were made. After judgment on the appeal, NDIA asked the Court to continue those protections on an ongoing basis.

The Court carefully described what the spreadsheets were and how they had been used. That detail matters because suppression orders are document-specific and context-specific.

In native.xlsx format, the spreadsheets contained formulae that could be displayed by clicking on cells. The Court accepted evidence that those formulae were not in the public domain and included actuarial modelling data and internal methodologies used by NDIA when assessing claims. The Court also accepted that the spreadsheets were internal working aids rather than exclusive or compulsory tools. In other words, they assisted administrative decision-making, but the output was not necessarily the final administrative decision in every case.

The PDF versions were different. They were static documents, so the embedded formulae could not be viewed by clicking through cells. But they were still derived from the same official source. Mrs Pett had altered inputs in the spreadsheets to produce a nil CRA and then relied on those modified versions in support of her argument. The Court noted that the modified PDFs were included in supplementary books, and one of those books was adduced in evidence.

The Court also dealt with a practical filing issue. The native spreadsheets were emailed to the Registry by Mrs Pett's husband as her authorised representative after difficulties using the Court Portal. For reasons not apparent on the file, those spreadsheets were neither accepted nor rejected for filing, although other documents sent by the same email were accepted. Even so, the Court treated the native spreadsheets as lodged with the Court for the purpose of the suppression power.

The legal question was whether the Federal Court should make ongoing suppression and confidentiality orders over the identified spreadsheets and related copies or adaptations. The statutory basis was s 37AF of the Federal Court of Australia Act, with NDIA relying on the ground in s 37AG(1)(a): that the order was necessary to prevent prejudice to the proper administration of justice.

The Court emphasised that this is a demanding test. The reasons refer to authority explaining that suppression orders are exceptional because the operative word is necessary, and because courts must take into account the public interest in open justice. Open justice is a primary objective of the administration of justice. It is not displaced lightly.

At the same time, the Court explained that once necessity is established in the particular circumstances, the order should be made. The task was therefore not to ask whether confidentiality would be convenient or desirable, but whether it was necessary to avoid prejudice to the proper administration of justice.

The Court also considered r 2.32 of the Federal Court Rules, which deals with confidential documents and inspection rights. The reasons make clear that the spreadsheets counted as documents in the proceeding, whether or not every version had been formally adduced in evidence.

A further issue was when open justice is engaged. The Court rejected the idea that it only arises once material is used in open court. In this case, the Court held that the principle was engaged because the native spreadsheets had been lodged with the Court and the PDF versions had been adduced in evidence. That meant the Court had to confront open justice directly rather than avoid it.

The Court held that ongoing suppression was necessary in the interests of justice in the particular circumstances of the case, and it made orders accordingly. The reasoning turned mainly on the combination of the existing Tribunal confidentiality order, the non-public formulae in the native spreadsheets, the source relationship between the native and PDF versions, and the limited role the spreadsheets played in the appeal.

For the native.xlsx spreadsheets, the Court accepted that the embedded formulae were not in the public domain and formed part of NDIA's internal methodologies and actuarial modelling. The Court also accepted that the spreadsheets were internal working aids. Importantly, the Court found that the appeal did not require disclosure, dispute or analysis of the formulae. Mrs Pett had not challenged the formulae themselves. Rather, she had tried to use the tool by changing inputs to support her own argument. The reasons in the appeal did not disclose any particular formula, and the Court had not been asked to use the spreadsheets as a decision-making tool.

The Court then placed significant weight on the fact that the Tribunal confidentiality order remained extant and had not been challenged. In those circumstances, the Court considered it inappropriate for the Federal Court process to permit publication of material originating in the Tribunal and already protected there. Lifting the interim order without replacing it with an ongoing order would create a practical inconsistency for people seeking to access and use the material. The Court said that, without an order, there was potential for the administration of justice to be brought into disrepute.

The Court reached the same conclusion for the PDF versions. Although the formulae could not be directly viewed in PDF form, the documents came from the same protected official source. The Court considered that adducing modified versions in open court would itself amount to a form of publication of material obtained under the Tribunal's confidentiality order. The Court also accepted that a person inspecting the PDFs might be able to infer something about the underlying formulae.

The Court expressly recognised that open justice still applied. However, the weight of that consideration was reduced by the limited use of the spreadsheets in the appeal and by the fact that the appeal's outcome did not turn on them.

One useful feature of the judgment is that it separates the two categories of sensitive information in the spreadsheets. The first category was the embedded formulae and methodology in the native files. The second was information specific to Mrs Pett's personal facts and circumstances.

That distinction matters for businesses because many sensitive documents are mixed documents. They do not contain only trade secrets or only personal information. They contain both. A customer pricing model may also include customer names and transaction history. A claims spreadsheet may include internal assumptions and claimant medical or settlement data. A workforce planning tool may include proprietary formulas and employee information. This case shows that courts may analyse those categories separately even if, in practice, the whole document ends up being protected.

Here, the Court found it unnecessary to decide NDIA's remaining arguments about personal information because the administration of justice ground already justified suppression. The reasons available publicly then begin discussing the Privacy Act and NDIS confidentiality provisions, but that discussion is cut off. So the clear public lesson from the judgment is not that privacy law alone required suppression. The stronger and safer reading is that the Court was already satisfied on the administration of justice basis, while recognising that the spreadsheets also contained highly personal information.

For businesses, that means privacy arguments may help explain sensitivity, but they may not be enough on their own. If you want a court to restrict access to documents, you should be ready to explain the procedural and justice-related reasons as well, including how the document entered the proceeding, whether another forum has already restricted it, and whether public access is actually needed for the issues the court must decide.

This case is best read as a practical guide to handling sensitive documents in disputes. It does not create a blanket rule that internal tools are protected. It does show the kinds of facts that can support protection.

First, know what your document actually contains. If it combines proprietary methods with personal information, say so clearly and separately. The Court in this case treated those as distinct categories.

Secondly, think about format. Native files can reveal hidden logic, formulas and metadata. A PDF may reduce some risk, but not all of it. The Court accepted that even static PDFs might allow some inference about the underlying formulae.

Thirdly, track confidentiality across forums. If a tribunal, regulator or earlier court has already imposed restrictions, do not assume those restrictions will automatically carry over. Raise the issue directly and explain why inconsistent treatment would create practical problems.

Fourthly, be realistic about relevance. The limited role of the spreadsheets in the appeal was important. If a document is central to the issues the court must decide publicly, open justice may carry more weight. If the document is peripheral, that may support a narrower confidentiality order.

Finally, prepare evidence. NDIA succeeded because it put on affidavit evidence about the nature of the spreadsheets, the non-public status of the formulae, and the existence of the Tribunal order. The Court rejected one NDIA submission about settlement because the affidavit did not support it. That is a useful reminder that confidentiality applications still need proper proof.

The Court ordered that disclosure of the identified spreadsheets and related copies or adaptations be prohibited until further order. The prohibition did not extend to disclosure to the Court, the parties and their legal representatives. The Court also ordered that the documents be treated as confidential under r 2.32 and not be inspected by a non-party.

The Registrar was directed to place notations on the Electronic Court File stating that non-party inspection was prohibited and that any application to inspect the documents had to be referred to a judge together with the orders and reasons. The Court also provided that the orders may be revoked on the application of any person with a sufficient interest, and in any event by any member of the media.

There is one date issue that should be checked carefully. The judgment heading records a judgment date of 13 May 2026, but the order page records the date of order as 13 May 2025. The appeal itself had been allowed on 15 October 2025. That sequence suggests the order date on the order page may require confirmation against the sealed record.