Nikolic v Twitter International Company [2026] FCA 90

1. On 15 January 2019, the applicants commenced a defamation proceeding in the Supreme Court of Victoria (S ECI 2019 00126) (Supreme Court Proceeding) against the respondent. The alleged defamatory conduct consisted of a number of Tweets published in about 2017 on the digital platform X (formerly Twitter) hosted by the respondent. The Tweets emanated from two accounts or 'handles' which had not been authorised by the applicants, but which bore a name which the applicants alleged represented an association with them. The applicants alleged that the subject matter of the Tweets was defamatory of them and had caused them loss and damage.
2. On 2 July 2021, the parties executed a written settlement agreement. The terms of that agreement required the respondent to make a payment to the applicants of a sum of money and to transfer the relevant handles to the applicants, but did not oblige the respondent to remove the Tweets from X. The agreement contained a release by the applicants of the respondent "from any claim related to, connected with or arising out of any matter, fact or circumstance in any way connected with the" Supreme Court Proceeding and allegations of defamation regarding the Tweets. The terms of the settlement agreement were performed and the Supreme Court Proceeding was dismissed by consent on 13 July 2021 with no order as to costs.
3. In around August 2021, the applicants complained to the respondent that a number of replies to the Tweets, which had also been posted in about 2017, were still visible on X.
4. By an Originating Application dated 6 September 2021 filed in the proceeding below and accompanying Statement of Claim (replaced by an Amended Statement of Claim dated 14 November 2022), the applicants sought relief from this Court arising from the replies remaining accessible on X, including orders that the settlement agreement be permanently stayed and that the respondent remove certain replies "or any matter to the same effect" from the platform and pay equitable compensation to the applicants to be assessed by the Court pursuant to r 30.41 of the Rules.
5. On 21 September 2021, the applicants sent a copy of the Originating Application and Statement of Claim by email to Ms McGeoch, a solicitor at the firm Thomson Geer, advising that the first case management hearing was scheduled for 17 March 2022. By letter dated 5 October 2021, Mr Quill, a partner at the firm Thomson Geer, informed the applicants that, while Thomson Geer had represented the respondent in the Supreme Court Proceeding, the firm did not hold instructions to act on behalf of the respondent in the Federal Court proceeding. Noting that the applicants were self-represented, the letter contained information with respect to the Federal Court requirements for service on the respondent as a foreign company. The letter informed the applicants that the requirements had not been complied with and, as a consequence, the Originating Application had not been validly served on the respondent. The letter also stated (amongst other things) that:

(a) the claim made in the Federal Court proceeding was in any event barred by the settlement agreement;

(b) the applicants were unlikely to establish that the Federal Court had jurisdiction in respect of the defamation claim; and

(c) the applicants had not complied with the pre-litigation requirements in the Defamation Act 2005 (Vic).

1. By an interlocutory application dated 12 October 2021, the applicants sought:

(a) an order under the then r 10.43(6) of the Rules for "leave" to serve the Originating Application and Statement of Claim on the respondent; and

(b) interlocutory relief reflecting the substantive relief sought in the Originating Application.

1. As at the date of the interlocutory application, r 10.43(6) of the Rules stated:

If an originating application was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service.

1. On 1 April 2022, the respondent filed an interlocutory application seeking:

(a) an order pursuant to r 13.01(1)(a) of the Rules setting aside the Originating Application on the bases that the applicants do not have a prima facie case against the respondent and that the Court does not have jurisdiction in the proceeding;

(b) alternatively, a declaration pursuant to r 13.01(1)(c) of the Rules that the Originating Application had not been properly served on the respondent.

1. As required by r 13.01(3), the respondent filed a notice of address for service together with its interlocutory application, which it asserted as being 'conditional' on the outcome of its application.
2. On 26 August 2022, the primary judge referred the applicants' and the respondent's interlocutory applications to a Judicial Registrar for hearing and determination.
3. The applications were heard by the Registrar on 16 November 2022. The Registrar identified the following two critical questions which required determination before considering the applicants' application for interlocutory relief:

(a) whether the Originating Application had been duly served on the respondent; and

(b) whether the issues identified by the respondent in relation to the claimed relief were so fundamental that the Court should set aside the Originating Application pursuant to r 13.01(a).

1. In relation to service, the Registrar noted the steps that had been taken by the applicants to bring the Originating Application to the attention of people they believed to be senior employees of the respondent or a related entity. Despite that, the applicants had not effected service on the respondent (as a foreign company) in accordance with any of the methods of service permitted by the then r 10.43, being service in accordance with an applicable convention, the Hague Convention or the law of the foreign country. The Registrar therefore determined that the Originating Application had not been duly served on the respondent. On that basis, the Registrar dismissed the applicants' application under r 10.43(6) and made an order pursuant to r 13.01(1)(c) declaring that the Originating Application has not been duly served on the respondent.
2. In relation to the issues identified by the respondent in relation to the claimed relief, the Registrar determined that the Court did not have jurisdiction in the proceeding. In relation to the applicants' claim in defamation, the Registrar concluded that the Court lacked jurisdiction because there was no plea of reputation or potential damage in the Australian Capital Territory or the Northern Territory and no application to restrain publication in those places. Accordingly, the defamation claim did not raise a matter arising under federal law. In so far as the applicants alleged a breach of the settlement agreement, the Registrar also concluded that such a claim did not raise a matter arising under federal law. In so far as the applicants alleged loss or damage arising from the respondent's negligence or breach of duty of care, the Registrar concluded that the basis and content of the alleged duty were not explained and no connection with federal law was identified.
3. The Registrar further determined that the applicants did not have a prima facie case for any of the relief sought in the Originating Application. Having examined the terms of the settlement agreement, the Registrar concluded that an allegation of breach of that agreement by reason of the publication of the replies was not tenable. The Registrar also concluded that the settlement agreement had fully extinguished any claim the applicants may have had against the respondent in defamation. The Registrar also noted that the Originating Application was filed well outside the relevant limitation period (as the publications occurred in 2017) and the material before her did not suggest any basis on which it might be asserted that the period should be extended.
4. On the basis of the foregoing, the Registrar made orders under r 13.01(a) setting aside the Originating Application.
5. On 14 December 2022, the Registrar ordered that the applicants pay the respondent's costs fixed as a lump sum of $25,324.
6. On 4 April 2023, the applicants filed an interlocutory application seeking an extension of time under r 1.39 of the Rules to review the orders of the Registrar made on 22 November 2022 and 14 December 2022 pursuant to s 35A(5) of the Act. By r 3.11(2) of the Rules, the application for review was required to be filed within 21 days of the relevant decision. The review period for the two sets of orders expired on 13 December 2022 and 27 January 2023 respectively. The delay by the applicants was considerable.
7. On 24 November 2023, the applicants filed a summons in the Supreme Court of Victoria to reinstate the Supreme Court Proceeding and to set aside the settlement agreement and the order made by consent on 13 July 2021 dismissing the Supreme Court Proceeding. The foundation for that summons was the same as in this proceeding: the applicants alleged that the Tweets originally published on X under the unauthorised handles remained visible. On 1 July 2024, Justice Gray of the Supreme Court of Victoria dismissed the summons, concluding that the settlement agreement did not require the respondent to remove the Tweets posted by the unauthorised handles, but only to transfer those handles to the applicants, and accordingly the respondent had not breached the settlement agreement: Nikolic v Twitter International Company [2024] VSC 381 at [30]-[33].
8. The applicants filed an amended interlocutory application and a further amended interlocutory application in the proceeding below on 19 February 2024 and 31 August 2024 respectively. It is not necessary for present purposes to outline the nature of the amendments.
9. The respondent filed an interlocutory application on 8 November 2024 seeking orders dismissing the proceeding pursuant to r 10.43A(1) of the Rules, on the basis that the claim had insufficient prospects of success.
10. The interlocutory applications were heard by the primary judge on 28 February 2025. On the morning of the hearing, Mr Nikolic indicated that he was unwell and that he wished that the duration of the hearing be limited. The primary judge informed Mr Nikolic that, in light of his request and that he was feeling unwell, his Honour would proceed to determine the application on the basis of the material that had been filed with the Court. Mr Nikolic agreed to that course. Mr Quill, who appeared for the respondent, made brief oral submissions but otherwise sought to rely on his written submissions.
11. On 10 April 2025, the primary judge made orders dismissing the interlocutory applications.
12. In his reasons for judgment, the primary judge declined to exercise his discretion under r 1.39 of the Rules to grant the extension of time sought by the applicants for two cumulative reasons: first, the applicants did not provide an adequate explanation for the delay in filing their application for review of the Registrar's orders; and second, because his Honour considered there to be insufficient merit in the application for review to warrant an extension of time.
13. In relation to delay, the primary judge observed that the only explanation provided by the applicants for the delay was that Mr Nikolic had tested positive for COVID-19 in December 2022. The primary judge determined that, even assuming that Mr Nikolic had contracted COVID-19 at that time, no explanation had been provided as to the severity of Mr Nikolic's symptoms, nor why they prevented him from filing the application for review within the 21-day period prescribed by the Rules. His Honour accepted that the applicants are self-represented and, therefore, a certain degree of understanding may be afforded around slippage of deadlines. However, his Honour was not satisfied on the material before the Court that an adequate explanation had been provided in relation to the 16-week delay in filing the application for review.
14. In relation to the merits of the application for review, the primary judge concluded that the application lacked sufficient merit to warrant the grant of an extension of time for two principal reasons. First, his Honour found that there was no evidence before the Court as to proof of valid service of the proceeding on the respondent in accordance with the Rules. Second, and more significantly, his Honour determined that the applicants did not have a prima facie case for relief because their claim had been fully compromised by the settlement agreement. By that agreement, the parties settled "all allegations and claims" of injury or damage arising from the Tweets "or any republication or related publication... or any facts, circumstances or matters relating to" the Tweets or the unauthorised handles. The primary judge accepted that the respondent would be entitled to plead the settlement agreement as a complete and effective bar to the claims which the applicants were seeking to bring.
15. Having refused the application for an extension of time, the primary judge concluded that it was unnecessary to consider the respondent's application for orders dismissing the proceeding pursuant to r 10.43A(1) of the Rules. His Honour therefore dismissed that application.

Application for leave to appeal and to restrain Mr Quill and Ms McGeoch from representing the respondent

1. The applicants filed an application for leave to appeal from the decision of the primary judge made on 10 April 2025, which was accepted for filing on 17 April 2025. The applicants subsequently filed a draft notice of appeal dated 5 May 2025.
2. The applicants also filed an interlocutory application dated 4 June 2025. Relevantly, the application sought two sets of orders. First, the applicants asked the Court to "note" that the respondent had failed to file a notice of appearance and sought orders that the respondent be barred from taking any step in the proceeding without the leave of the Court. Second, the applicants sought an order that the respondent's solicitors, Mr Quill and Ms McGeoch of Thomson Geer, be restrained from continuing to act for the respondent in the proceeding "due to a serious and ongoing conflict of interest and breach of professional obligations".
3. On 12 June 2025, the respondent filed a conditional notice of address for service which stated that the respondent had not been served with the application for leave to appeal and the associated documents in accordance with the requirements set out in Div 10.4 of the Rules.
4. At a case management hearing on 13 June 2025, the respondent was represented, initially on a conditional basis, by Ms McGeoch of Thomson Geer. Ms McGeoch told the Court that the applicants had purported to serve the respondent by emailing a copy of the application for leave to appeal to Thomson Geer. Nevertheless, during the case management hearing, Ms McGeoch informed the Court that Thomson Geer would represent the respondent in the proceeding to contest the application for leave to appeal. Given that explanation for the respondent's failure to file a notice of address for service within the time allowed by the Rules, it is appropriate to waive the non-compliance.
5. At the conclusion of the case management hearing, I made orders for the filing of any supplementary evidence of the parties and submissions.
6. In support of their application for leave to appeal, the applicants relied on:

(a) written submissions dated 5 May 2025, supplementary submissions dated 2 June 2025 and reply submissions dated 9 July 2025; and

(b) three affidavits of Mr Nikolic affirmed on 15 August 2024, 17 May 2025 and 1 October 2025.

1. The three affidavits of Mr Nikolic were read into evidence without objection.
2. In support of their interlocutory application for an order that Mr Quill and Ms McGeoch of Thomson Geer be restrained from continuing to act for the respondent, the applicants relied on written submissions dated 6 June 2025 and 9 July 2025. The applicants did not file any evidence in support of the allegations made in that application.
3. In opposing both applications, the respondent relied on written submissions dated 4 July 2025 and an affidavit of Mr Quill sworn on 4 July 2025. The affidavit of Mr Quill was read into evidence without objection.
4. The application for leave to appeal and the interlocutory application to restrain Mr Quill and Ms McGeoch from representing the respondent were heard on 10 October 2025. It is appropriate to address the latter application first.

1. The applicants submitted that Mr Quill and Ms McGeoch have a conflict of interest in continuing to act for the respondent in this matter. In support of that submission, the applicants made the following factual assertions:

(a) In 2018, Mr Quill advised Mr Nikolic as his lawyer that the respondent was the publisher of certain material that Mr Nikolic asserted was defamatory. The applicants relied on that advice in forming their understanding of their claim in this proceeding.

(b) Mr Quill and Ms McGeoch had a prior retainer with, and were in possession of confidential information relating to, Mr Nikolic and/or the Company, and despite this, Mr Quill and Ms McGeoch proceeded to take instructions and be retained by the respondent in various proceedings commenced by the applicants.

(c) Mr Quill failed to disclose his prior involvement with the applicants to the Court.

(d) Mr Quill and Ms McGeoch are personal defendants in ongoing, related proceedings commenced by the applicants.

(e) Mr Quill and Ms McGeoch pursued adverse costs orders against the applicants, which created personal financial incentives in breach of the solicitors' professional obligations.

1. The applicants submitted that Mr Quill and Ms McGeoch ought to be restrained from acting for the respondent and referred to the Legal Services Commissioner because their ongoing involvement in this proceeding undermines public confidence in the administration of justice, gives rise to an apprehension of bias and constitutes a breach of legal professional privilege.
2. The applicants also submitted that the costs orders made below by the Registrar and the primary judge are tainted by the non-disclosure of the alleged conflict of interest and ought to be set aside as a matter of procedural fairness and natural justice.
3. The respondent submitted that the interlocutory application should be dismissed for the following reasons.
4. First, the applicants' allegations are not supported by any evidence and are mere assertion.
5. Second, Mr Quill deposed in his affidavit that he has never acted for either of the applicants, has never taken instructions from Mr Nikolic nor anyone on behalf of the Company, and is not in possession of any confidential information relating to the applicants. Mr Quill's affidavit annexed correspondence which Mr Quill understands to be the foundation for the applicants' allegations, being a letter dated 19 September 2018 from Mr Quill and addressed to the applicants, and a subsequent email exchange that day with Mr Nikolic. This correspondence was sent to the applicants by Mr Quill in his capacity as a solicitor acting for Nationwide News Pty Ltd, publisher of The Australian (Nationwide News), in response to and rejecting a complaint by the applicants to Nationwide News. It is clear that, in his correspondence with the applicants, Mr Quill was representing Nationwide News and that Nationwide News rejected the applicants' complaint. During the hearing, Mr Nikolic confirmed that the foregoing correspondence was the basis on which he alleged that Mr Quill had given advice to the applicants.
6. Third, there is no basis on which to find that Mr Quill or Ms McGeoch owed a duty of care to the applicants and, accordingly, no conflict of interest can arise. Mr Quill never gave Mr Nikolic an expectation that he would protect Mr Nikolic's interests, and it was not reasonably foreseeable that the applicants would rely on Mr Quill's correspondence to them (acting for Nationwide News) as legal advice given to them.
7. Fourth, there is nothing preventing Mr Quill or Ms McGeoch from continuing to act for the respondent in this matter by virtue of them being defendants in other proceedings commenced by the applicants.
8. Fifth, correspondence from Mr Quill demanding payment of costs from the applicants was sent in Mr Quill's capacity as solicitor for the respondent and not in Mr Quill's personal capacity. Mr Quill and Ms McGeoch do not obtain any personal financial advantage from the applicants satisfying the costs orders made against the applicants in favour of the respondent.
9. I accept the respondent's submissions. The allegations made by the applicants against Mr Quill and Ms McGeoch are utterly baseless and should never have been made. The interlocutory application will be dismissed.

1. Pursuant to s 24(1A) of the Act, an appeal cannot be brought from an interlocutory judgment of the Court unless the Court or a Judge gives leave to appeal.
2. The primary judge's decision was interlocutory because it did not determine the underlying merits of the applicants' claim for relief in the Originating Application: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248, 253-254; Cubillo v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455 at [182]. Rather, the judgment concerned a matter of practice and procedure: whether an extension of time to review the Registrar's decision should be granted to the applicants. The decision was interlocutory even though the primary judge's orders had the practical effect of dismissing the Originating Application.
3. The principles governing applications for leave to appeal from interlocutory judgments are well established. An applicant must generally demonstrate that, first, the decision in question is attended with sufficient doubt to warrant it being reconsidered by the Full Court and, second, that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor) at 398-399. The two criteria are cumulative (that is, both must ordinarily be made out) and they are also inter-related. As to the first criterion, an applicant does not have to demonstrate that the proposed grounds of appeal are strongly arguable, or that the proposed appeal will or is likely to succeed. The applicant need only demonstrate that there is sufficient doubt about the correctness of the decision to warrant appellate reconsideration. As to the second criterion, an applicant is likely to suffer substantial injustice (if leave were to be refused supposing the decision to be wrong) if the decision has the practical effect of finally determining the rights of the parties, or determines a 'substantive right'.
4. When considering whether to grant leave to appeal from interlocutory orders, account is taken of the subject matter of those orders and whether they relate to points of procedure or determine substantive rights. Leave is more readily granted where the impugned orders determine substantive rights, whereas appellate interference on matters of practice and procedure is kept on a "tight rein": Décor at 400; Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574 at [2] (Lindgren J).
5. An application for leave to appeal is of summary nature: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; (2017) 257 FCR 62 at [2]. When considering the issue of whether to grant leave or not "... it is neither necessary nor appropriate that [the single Judge] should examine the merits of the proposed appeal in the way that a Full Court might choose to do": Sharp v Deputy Commissioner of Taxation (Cth) [1988] FCA 76; (1988) 19 ATR 908 at 909, cited in Harvey v Diocese of Sale Catholic Education Ltd (St Joseph's Primary School Wonthaggi) (No 4) [2022] FCA 1185 at [9].
6. The decision of the primary judge, refusing to grant an extension of time, was discretionary in character. An appeal against a discretionary decision requires the appellant to demonstrate error of the kind referred to in House v The King (1936) 55 CLR 499 (House v The King) at 504-505. Appellate intervention is limited to circumstances where the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to affect the decision, mistook the facts, failed to take into account some material consideration, or made a decision that was unreasonable or plainly unjust. It is not sufficient for the appellate court to conclude that it would have exercised the discretion differently had it been in the position of the primary judge.

Applicants' draft grounds of appeal and submissions

1. The application for leave to appeal states some 17 grounds of the application. Most of the grounds are incoherent or barely coherent. It is unnecessary to reproduce the purported grounds in these reasons as most of the grounds were not referred to in the applicants' written or oral submissions. An illustration of the incoherence of the grounds is given by paragraph A.1 of the application:
   1. Grounds of Application

A.1 The Learned Judge erred in J [3] to [5] by failing to find or give due consideration to the terms:

A.1.1 'remove'

A.1.2 'edit'

A.1.3 'deleted offensive tweets'

A.1.4 'transfer the tweets'

A.1.5 '@idaz09', '@idaz09nations', '@idaz09_' and '@idaz09nations_' (collectively the Twitters 4 Handles)

A.1.6 'names and logos' and

A.1.7 'present'

of the matters as set out in the Applicant's Submissions dated 18 November 2024 (the ASUB), specifically paragraphs B.1, B.5 and B.6 thereof, which evidence materials were duly provided before the court.

1. Neither the applicants' submissions dated 18 November 2024 before the primary judge, nor the applicants' submissions on the application for leave to appeal, explain the above ground.
2. The applicants' draft grounds of appeal were stated more concisely as follows:

A.1 The learned primary judge erred in paragraphs [3] to [16], [18] to [21], [23] to [31], [35] to [38] of the reasons by failing to consider, or give adequate weight to:

A.1.1 The absence of proper service upon the Appellants prior to the Respondent's appearance, contrary to rule 10.01 of the Federal Court Rules 2011 (Cth).

A.1.2 The denial of procedural fairness and natural justice, including failure to afford the Appellants an opportunity to be heard before adverse orders were made.

A.1.3 The failure to provide reasonable adjustments for the First Appellant's disability, including access to the National Relay Service as required by section 24 of the Disability Discrimination Act 1992 (Cth).

A.1.4 The existence of a post-settlement conflict of interest involving the Respondent's solicitor, Mr Justin Quill of Thomson Geer Lawyer, who:

A.1.4.1 previously advised the First Appellant in 2018;

A.1.4.2 participated in drafting the 2020 settlement deed; and

A.1.4.3 continued to act for the Respondent without disclosing his prior retainer or the prejudice caused to the Appellants' legal position and expenses.

A.1.5 The Respondent's failure to disclose material facts arising post- settlement, including:

A.1.5.1 the continued modification, publication and algorithmic amplification of defamatory content;

A.1.5.2 the Respondent's role in configuring systems to facilitate reputational harm;

A.1.5.3 the breach of the purpose and effect of the settlement agreement;

A.1.5.4 the concealment of which denied the Appellants the ability to make informed decisions and undermined the fairness of the subsequent proceedings.

Miscarriage of Justice and Application

A.2 A miscarriage of justice occurred in that:

A.2.1 The Court proceeded to hear the Respondent's application and made adverse orders:

A.2.1.1 before proper service was effected;

A.2.1.2 without affording the Appellants a fair opportunity to be heard; and

A.2.1.3 without ensuring compliance with procedural safeguards or disability access obligations.

A.2.2 The Respondent's post-settlement nondisclosure of ongoing defamatory modification, publication and algorithmic dissemination defeated the object of the settlement, rendering the agreement unconscionable and the proceeding fundamentally unfair.

A.2.3 Mr Quill's continued representation of the Respondent, despite his prior advisory role and access to confidential information, compromised the integrity of the proceeding and gave rise to a reasonable apprehension of conflict and misuse of privileged material.

1. The applicants' written submissions dated 5 May 2025 summarised the draft grounds of appeal relied on by the applicants in the following terms:

(a) The applicants were not duly served with the originating application and statement of claim, or supporting materials that gave rise to the orders, in breach of rule 10.01.

(b) The Court erred in making orders in the absence of valid service, thereby exercising jurisdiction improperly and in breach of natural justice.

(c) Mr Nikolic is hearing impaired and communicates primarily in Auslan. No reasonable adjustments were made to accommodate his disability, nor was he afforded access via the National Relay Service, which undermined his ability to participate effectively.

(d) The primary judge failed to give adequate consideration to these procedural deficiencies and their effect on the applicants' ability to be heard.

1. Reading the draft grounds of appeal in light of the applicants' written and oral submissions, I consider that the applicants' proposed grounds of appeal can be summarised as follows.
2. First, the applicants contend that the primary judge failed to properly consider their explanation for the delay in filing their application for review of the Registrar's decision, that explanation being that Mr Nikolic tested positive for COVID-19. The applicants contend that the primary judge erred by failing to provide clear directions regarding the evidence required to be filed to explain the reasons for the delay, and by failing to make an order permitting the filing of further evidence.
3. Second, the applicants contend that the primary judge failed to give due consideration to their allegation that replies to the original Tweets are still visible on X, and that those replies were published by the respondent after the parties signed the settlement agreement. The applicants contend that the respondent's post-settlement conduct gives rise to a fresh cause of action and that the primary judge erred in finding that the applicants' claim is barred by the release clause in the settlement agreement. The applicants also contend that the primary judge failed to properly consider the harm suffered by Mr Nikolic as a result of the material remaining visible on X.
4. Third, the applicants advance certain service-related contentions which are difficult to understand. Doing the best I can, the applicants appear to contend that, if the Registrar correctly decided that the respondent was not validly served with the Originating Application, then the respondent is not entitled to an award of costs in its favour.
5. Fourth, the applicants contend that they were denied procedural fairness in the hearing below. Specifically, they contend that the primary judge failed to make reasonable adjustments to accommodate Mr Nikolic's disability, which undermined the applicants' ability to participate effectively in the hearing below. They also contend that the primary judge failed to ensure that Mr Nikolic would be assisted by in-person Auslan interpreters at the hearing on 28 February 2025, and failed to provide or facilitate communications via the National Relay Service which would have helped Mr Nikolic, a self-represented litigant with a disability, to correct the defective service issue.

1. To obtain leave to appeal, the applicants must demonstrate that, first, the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court and, second, that substantial injustice would result if leave were refused, supposing the decision to be wrong.
2. The application for leave to appeal is against a discretionary decision on a matter of practice and procedure, being a decision under r 1.39 of the Rules to decline to grant an extension of time to review the orders of the Registrar. Nevertheless, the decision resulted in the dismissal of the proceeding below. I therefore accept that the applicants are likely to suffer substantial injustice if leave were to be refused supposing the decision to be wrong. The principal question to be considered is, therefore, whether the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court. As the decision of the primary judge was discretionary, the applicants must demonstrate error of the kind referred to in House v The King.

Applicable principles governing an extension of time

1. The primary judge stated the principles applicable to determining the application for an extension of time as follows (at [26]):

The Court has a broad discretion under r 1.39 of the Rules to extend the times fixed by the Rules. While the discretion is unconfined by any express words, the principal matters that the Court takes into consideration when determining whether to grant an extension of time are:

(a) the reasons for the delay;

(b) whether there is an arguable case; and

(c) prejudice to the respondent or other parties: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); Tuscan Capital Partners Pty Ltd v Trading Australia Pty Ltd (in liq), in the matter of Trading Australia Pty Ltd (in liq) [2020] FCA 163 at [16] (Perram J); Deputy Commissioner of Taxation v Australian Investment & Property Corp Pty Ltd [2014] FCA 666 at [8] (Gordon J); Owen-Pearse v Lander Land Co Pty Ltd [2018] FCA 2077 at [16]- [18] (Banks-Smith J).

1. The applicants did not challenge the foregoing statement of the applicable principles.

1. The primary judge considered the reasons provided by the applicants for their delay in filing the application for review. As noted above, his Honour found that the only explanation provided by the applicants as to the considerable delay was that Mr Nikolic had tested positive for COVID-19 in around December 2022. However, his Honour also found that Mr Nikolic had not put on any evidence to explain the duration or severity of his symptoms, nor how those symptoms meant that he was unable to file the application for review within time. On that basis, the primary judge determined that the applicants had not adequately explained their delay in filing their application for review.
2. The applicants' first contention with respect to delay is that the primary judge failed to properly consider their explanation for the delay. That contention cannot be accepted. The primary judge's reasons demonstrate that the primary judge took into account the reason for the delay proffered by the applicants, such as it was.
3. The applicants' second, and perhaps principal, contention with respect to delay is that the primary judge failed to provide clear directions regarding the evidence required to be filed to explain the delay, and failed to make an order permitting the filing of further evidence.
4. The Court has a duty to ensure a fair hearing and that a litigant is not disadvantaged by reason of exercising his or her right to be self-represented: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 at [51]-[57] (Markovic, Derrington and Anastassiou JJ); Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] (Beazley JA; Giles and Whealy JJA agreeing), cited in SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J; Allsop CJ and Mortimer J (as her Honour then was) agreeing). However, it is not the function of the Court to give judicial advice to, or conduct the case on behalf of, a self-represented litigant: Bhagwanani v Martin [1999] SASC 406; 204 LSJS 449 at [23] (Bleby J); Clark v New South Wales (No 2) [2006] NSWSC 914 at [13] (Johnson J).
5. I am not persuaded that the primary judge failed to give proper direction or guidance to the applicants with respect to the issue of delay. It is apparent that the applicants were aware that the reason for the delay in filing their application for review was a relevant consideration. The applicants filed evidence addressing the question of delay. There was no reason for the primary judge to believe that the applicants were in a position to file additional evidence. I am satisfied that the primary judge evaluated the evidence adduced by the applicants on the question of delay, applied the correct principles, and reached a conclusion supported by the available evidence. I am also satisfied that, in arriving at his conclusion, the primary judge took into account that Mr Nikolic was self-represented. As noted earlier, his Honour expressly acknowledged that the applicants were self-represented and, therefore, a certain degree of understanding was to be afforded around slippage of deadlines. However, his Honour was not satisfied on the material before the Court that an adequate explanation had been provided in relation to the 16-week delay in filing the application for review.
6. For those reasons, I consider that the applicants have not identified any arguable ground of error with respect to the issue of delay.

1. In relation to the merits of the application for review, as noted earlier the primary judge concluded that the application for review lacked sufficient merit to warrant the grant of an extension of time for two principal reasons.
2. First, his Honour found that there was no evidence before the Court as to proof of valid service of the proceeding on the respondent in accordance with the Rules. The applicants did not challenge that conclusion on the application for leave to appeal. Indeed, the applicants appeared to concede during oral submissions that the respondent had not been validly served. That concession was then the basis for the applicants' further contention that they should not be required to pay the respondent's costs of the proceeding below. I reject that further contention. By filing the Originating Application and purporting to serve it on the respondents (albeit invalidly), the applicants caused the respondent to appear in the proceeding for the purpose of contesting service and whether the claim had sufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending it. The applicants have not demonstrated any error in the decisions of the Registrar and the primary judge to award costs in favour of the respondent.
3. Second, his Honour determined that the applicants did not have a prima facie case for relief because their claim had been fully compromised by the settlement agreement. The primary judge reasoned as follows (at [36]-[38]):
   1. ... A review of the applicants' statement of claim illustrates that the applicants' underlying concerns is that material related to the Tweets remain visible on X. The applicants appear to claim that this constitutes a breach of the Settlement Agreement and provides a basis on which to now seek orders for the Settlement Agreement to be stayed, for the respondent to remove the relevant tweets from X, and for the respondent to pay compensation for loss and damages.
   2. As was noted above, the Settlement Agreement did not require material to be removed from X. As has been separately found by the Supreme Court of Victoria in relation to the applicants' challenge to the dismissal of the Supreme Court Proceeding, there is no basis on which the Settlement Agreement might be regarded as void or voidable, and the respondent has performed its obligations under the agreement. No sufficient material has been put before me by the applicants to indicate that the respondent has breached the Settlement Agreement.
   3. In my view, the applicants' claim has been fully compromised by the Settlement Agreement. By that agreement, the parties settled all allegations and claims of injury or damage arising from the Tweets "or any republication or related publication... or any facts, circumstances or matters relating to" the Tweets or the relevant accounts. I accept that the respondent would be entitled to plead the Settlement Agreement as a complete and effective bar to the claims which the applicants seek to bring.
4. The applicants have not persuaded me that there is arguable error in the foregoing reasons. I have considered the terms of the settlement agreement, relevantly the release in cl 4.1, the bar to further proceedings in cl 8.1 and the definitions of 'Claim' and 'Publications' in cl 1. Those terms are as follows.
5. Clause 4.1 provides that:

In consideration of the benefit received under clauses 2, 3 and 11.1(a) of this Agreement, the [applicants], any entity controlled by either of them, and any of their related bodies corporate, trusts, legal entities or such entities, and each of their directors, officers, employees, agents, contractors and/or related bodies corporate release, indemnity and forever hold harmless Twitter and its directors, officers, employees, agents, contractors and/or related bodies corporate, including but not limited to Twitter affiliates, subsidiaries and parents, and each of their respective directors, officers, employees, agents, contractors and/or related bodies corporate, from any claim related to, connected with or arising out of any matter, fact or circumstance in any way connected with the Claim and the [Supreme Court Proceeding].

This Agreement may be pleaded by Twitter or any of its directors, officers, employees, agents, contractors and/or related bodies corporate as a bar to and/or full and complete defence to any proceeding or claim which is the subject of the release in Clause 4 of this Agreement, except for any claim commenced at any time by a Party or against another Party to enforce this Agreement.

Claim means all allegations and claims of any kind whatsoever (including any proceeding, suit or demand, or request for costs) by the [applicants] that they have been or may have been defamed, injured or damaged in any way by the Publications or any republication or related publication on the Twitter [sic] or any other platform referring to the Publications, or any facts, circumstances or matters relating to the Publications or the accounts that Tweeted the Publications. (emphasis added)

...

Publications means any past or current Tweets that have been posted on the Twitter platform from the [handles] prior to the Twitter Handles Transfer and every Tweet that has been the subject of each statement of claim in [the Supreme Court Proceeding].

1. In my view, all claims relating to the Tweets and any replies to or reposts of the Tweets are captured by the definition of "Claim" in cl 1 of the settlement agreement. The Tweets are clearly "Publications" within the meaning of cl 1. I am satisfied that any reply to or repost of the Tweet after the date of the settlement is a "republication" on X for the purposes of the definition of "Claim". I do not accept the applicants' submission that a "republication" for the purposes of the definition of "Claim" refers only to a republication that occurred prior to the date of the settlement. I am also satisfied that replies to and reposts of the Tweets are "related publications" on X and "matters relating to the Publications or the accounts that Tweeted the Publications".
2. By cl 4.1, the applicants have released and indemnified the respondent from any allegation or claim that the applicants may have been defamed, injured or damaged in any way by the Tweets, or by any replies to those Tweets which remain visible on X. I therefore agree with the primary judge's conclusion that the respondent is permitted to plead the settlement agreement as a complete defence under cl 8.1.

1. As identified by the primary judge (at [26]), the third matter that is relevant to the grant of an extension of time is whether the applicants' delay in filing their application for review caused prejudice to the respondent. The primary judge did not make an express finding with respect to any prejudice suffered by the respondent. I infer from this that the material before his Honour did not demonstrate any prejudice to the respondent from the delay. However, the mere absence of prejudice is not enough to justify the grant of an extension: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349 (Wilcox J), citing Douglas v Allen [1984] FCA 77; (1984) 1 FCR 287 at 295, Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411 at 416 and Hickey v Australian Telecommunications Commission (1983) 72 FLR 291 at 296. Thus, no arguable ground of error arises from this factor.

1. It remains to consider the applicants' contentions with regard to procedural fairness. Aspects of the applicants' contentions have been addressed earlier. I have earlier rejected the applicants' contentions that Mr Quill and Ms McGeoch had a conflict of interest in representing the respondent. I have also rejected the applicants' contention that the primary judge denied them procedural fairness by failing to provide clear directions regarding the evidence required to be filed to explain their delay in filing the application for review.
2. The applicants also advanced a general contention that the primary judge failed to make reasonable adjustments to accommodate Mr Nikolic's disability, which undermined the applicants' ability to participate effectively in the hearing below. That contention has not been substantiated on the evidence before me and I reject it. The applicants filed substantial written material in the period between April 2023 and February 2025, including seven affidavits and five sets of written submissions. Mr Nikolic appeared before the primary judge with the assistance of an Auslan interpreter at the hearing on 28 February 2025. Mr Nikolic did not raise any issue regarding the Auslan interpreter during that hearing. The primary judge accommodated Mr Nikolic's request that the duration of the hearing be limited because he was feeling unwell, and Mr Nikolic confirmed to the primary judge when asked that he was content for the matter to be determined on the papers.

1. In conclusion, the applicants have not persuaded me that the primary judge's decision involved any arguable error of the kind discussed in House v The King. Consistent with that conclusion, I am of the view that the decision of the primary judge is not attended by sufficient doubt which would warrant it being reconsidered by the Full Court. Having regard to all relevant factors, I consider that leave to appeal should be refused.

1. In light of the foregoing, I will make orders dismissing the applicants' application for leave to appeal dated 14 April 2025 and the interlocutory application dated 4 June 2025.
2. On the question of costs, the general rule is that costs follow the event, unless there are some special circumstances to deviate from that rule. The fact that the applicants are self-represented is a matter that must be taken into account, but does not preclude the making of a costs order against them. Absent special circumstances the ordinary rule should apply, and the respondent should have its costs of and incidental to the application: Garnaut v Child Support Registrar [2004] FCA 1303 at [5] (Spender J); Fitzpatrick v Keelty (No 2) [2008] FCA 742 at [13] (Moore J). I do not consider that there are any special circumstances in the present case that warrant a departure from the usual rule and it is therefore appropriate to make the usual order as to costs.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.