to use a pseudonym. Similarly, she commenced this proceeding for judicial review in her own name. Once again, she did not seek anonymity or seek to use a pseudonym at the time of commencement. She has identified herself. Subclause 2.1 of APP2 does not apply by dint of subcl 2.2(a) thereof.
58 In her written submissions, the applicant eschews reliance on Pt VAA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) which confers power on the Court to make a suppression order or non-publication order that prohibits or restricts the publication or other disclosure of information tending to reveal the identity of a party to a proceeding: s 37AF(1)(a). This was not always her position.
59 As will be apparent from the correspondence I have recorded at [13]–[19], I was not persuaded that the applicant's application for an interim order suppressing her identity was appropriate. In that correspondence, I said that I would give reasons for not making an interim order when publishing these reasons.
60 The applicant's application for an interim order was advanced on two bases. First, the order was warranted because of APP2. Secondly, I should make an interim order under s 37AI of the Federal Court Act (i.e., under Pt VAA of the Federal Court Act).
61 My view as to the applicability of APP2, expressed at [57] above, was the view I initially held at the case management hearing on 2 September 2024. That initial view had not changed when the applicant sent her email at 10.12 am that morning. Important to my mind was the fact that the applicant had pursued her complaint under s 36 of the Privacy Act in her own name and had commenced this proceeding in her own name, thereby disclosing her identity in respect of her complaint.
62 My view, following the applicant's email sent at 2.56 pm on 2 September 2024, which expressly invoked s 37AI of the Federal Court Act to make an interim order, remained the same. I was not persuaded on the material then before me that there was a principled basis on which to make an order under s 37AF(1)(a) of the Federal Court Act and, in those circumstances, I was not prepared to exercise the discretion under s 37AI to make an interim order.
63 On each occasion, my decision not to make an interim order of the Court was an exercise of judicial power.
