Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited (No 3) - Practice Procedure Application Dismissed

Original Word Document (88 KB) Federal Court of Australia

Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited (No 3) [2026] FCA 417

| File number: | WAD 221 of 2024 |
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| Judgment of: | BANKS-SMITH J |
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| Date of judgment: | 9 April 2026 |
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| Date of publication of reasons: | 10 April 2026 |
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| Catchwords: | PRACTICE AND PROCEDURE – application under r 39.05 of the Federal Court Rules 2011 (Cth) to set aside order made on 7 August 2025 consolidating proceedings – no reasonable explanation for non-attendance at hearing – no matters raised that suggested consolidation order not appropriate – application dismissed

PRACTICE AND PROCEDURE – where scandalous material contained in affidavit – order for removal from court file – where repeated and unnecessary communications made by or on behalf of applicant directly with employees of respondent – order made in exercise of power to regulate legal proceedings to restrain further contact |
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| Legislation: | Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 22.07, 39.05 |
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| Cases cited: | Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited [2025] FCA 614

Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited (No 2) [2025] FCA 928

Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892

Murdock v Virgin Australia Airlines Pty Ltd [2022] FCA 1074

Ogbonna v Qantas Airways Ltd [No 4] [2023] WASC 21 |
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| Division: | Fair Work Division |
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| Registry: | Western Australia |
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| National Practice Area: | Employment and Industrial Relations |
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| Number of paragraphs: | 33 |
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| Date of hearing: | 9 April 2026 |
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| Counsel for the Applicant: | The applicant appeared in person |
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| Counsel for the Respondent: | Mr I Bennett |
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| Solicitor for the Respondent: | Sparke Helmore Lawyers |
ORDERS

| | | WAD 221 of 2024 |
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| BETWEEN: | ALI MAIGA AKIBOU YACOUBA

Applicant | |
| AND: | KEY ASSETS THE CHILDREN'S SERVICES PROVIDER (AUSTRALIA) LIMITED

Respondent | |

| order made by: | BANKS-SMITH J |
| DATE OF ORDER: | 9 April 2026 |
THE COURT ORDERS THAT:

1. The applicant's application to set aside the consolidation order made 7 August 2025 be dismissed.

2. The applicant's affidavit filed 27 January 2026 must be removed from the Court file pursuant to r 1.32, r 1.40 and r 6.01 of the Federal Court Rules 2011 (Cth), and may be refiled on the condition that paragraphs 27 to 33 are redacted or otherwise struck out.

3. The applicant is restrained until further order from, directly or indirectly, communicating by any means in relation to this proceeding with any person described in Attachment A.

4. The time for the applicant to file and serve an amended (consolidated) statement of claim in the proceeding is extended to 24 April 2026.

5. The proceeding be listed for case management on a date to be fixed for the purpose of allocating dates for final hearing.

6. Costs reserved.

7. Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Attachment A

1. Any person employed or otherwise engaged by or on behalf of the respondent, including:

(a) Melissa Alexiou;

(b) Wayne Box;

(c) Wenda Donaldson;

(d) Cecilia Hemana;

(e) Jenni Hutchins;

(f) Dianne Jackson;

(g) Lisa Landon-Smith;

(h) Craig Lawn;

(i) Con Manos;

(j) Jessica Oostenbroek;

(k) Calum Sawford; and

(l) Brenda Yelland.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1 Mr Akibou Yacouba was employed by the respondent as a casual youth worker from October 2023 until April 2025, when his employment was terminated.

2 On 9 August 2024 Mr Akibou Yacouba filed an application in the general protections jurisdiction of the Court seeking relief relating to his employment, asserting that the respondent engaged in adverse action, discrimination and bullying and made defamatory statements against him.

3 On 30 May 2025 Mr Akibou Yacouba filed another application in the general protections jurisdiction, asserting that the respondent had made allegations of misconduct against him and had proceeded to terminate his employment because he had raised concerns about work practices and because of his racial background.

4 On 12 June 2025 I dismissed an application brought by Mr Akibou Yacouba in the first proceeding for judgment on alleged admissions under r 22.07 of the Federal Court Rules 2011 (Cth): Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited [2025] FCA 614 (Yacouba (No 1)).

5 On 10 July 2025 the solicitor for the respondent, Mr Bennett of Sparke Helmore Lawyers, reported to the Court (copied to Mr Akibou Yacouba) that conferral as to programming for case management purposes with Mr Akibou Yacouba had not been productive and provided a minute of proposed orders, proposing amongst other things that the two proceedings be consolidated.

6 Mr Akibou Yacouba informed the Court that he did not want the matters to be heard together at one case management hearing.

7 On 11 July 2025 a case management hearing was listed in each matter for 7 August 2025, and the parties were informed of the listings.

8 Mr Akibou Yacouba did not appear at the hearings of 7 August 2025. Having satisfied myself that Mr Akibou Yacouba was on notice of the hearings, I proceeded to make orders, including an order for consolidation, and I published reasons: Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited (No 2) [2025] FCA 928 (Yacouba (No 2)). I ordered Mr Akibou Yacouba to file a consolidated (amended) statement of claim in the proceeding by 5 September 2025. That step has not been undertaken.

9 On 27 January 2026 Mr Akibou Yacouba filed an interlocutory application, supported by an A ffidavit sworn by him dated 27 January 2026 (the reference to 2025 in the affidavit is clearly a minor error) , seeking an order that the Court 'de-consolidate' the proceedings by setting aside the order made in his absence on 7 August 2025 under r 39.05 of the Federal Court Rules.

10 Rule 39.05 provides that the Court may vary or set aside a judgment or order after it has been entered if (relevantly) it is interlocutory or was made in the absence of a party.

11 The authorities reveal the following applicable principles:

(a) the exercise of the power, although discretionary, is limited to truly exceptional circumstances and must be undertaken with caution;

(b) an application under r 39.05 is not an appeal and is not the appropriate means by which to contend that the order was affected by error of law;

(c) regard must be had to principles of case management; and the exercise of power in a way that best meets the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth); and

(d) where an order is made in the absence of a party, the Court will usually consider whether there is a proper explanation for the non-attendance and whether the evidence discloses a ground of sufficient merit to warrant setting aside the order (see generally La l v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 (White J)).

12 The respondent's solicitors filed submissions opposing the application on 23 March 2026.

13 Mr Akibou Yacouba had been granted an extension of time in which to file submissions in support of his application, but in the end he filed submissions only in reply to the respondent's submissions, which I directed be accepted for filing on 9 April 2026. Mr Akibou Yacouba also provided a 'statement' at the hearing which was read into the transcript.

14 Mr Akibou Yacouba submitted that the application is to be considered in the context of a number of applications that he has filed that relate to an appeal he intends to pursue relating to the decision of 7 August 2025, and an application for contempt proceedings he intends to pursue relating to the respondent and the respondent's solicitors. No such applications have been accepted for filing by the Court, and I proceeded on the basis that the only relevant application on foot is that referred to at [9] above. The fact that such other applications may have been lodged by Mr Akibou Yacouba is not relevant to the determination of the application before me.

15 Having considered the Affidavit and the respective oral and written submissions, I determined at the hearing to dismiss Mr Akibou Yacouba's application.

16 I did so for the following reasons.

17 Mr Akibou Yacouba was not deprived of the opportunity to be heard on 7 August 2025. He had prior notice that the respondent would be seeking a consolidation order on that date. He informed the Court that he preferred the actions to progress separately and this was taken into account at the hearing (see Yacouba (No 2) at [6]). He has not provided a reasonable explanation or justification for his non-attendance on 7 August 2025. In his Affidavit he refers to overseas travel but from 13 September 2025, which is after the hearing. He states that he also lodged an application to set aside the order made 12 June 2025 dismissing his application for judgment on admissions (Yacouba (No 1)). He relies on such lodgement, and a registrar's decision to reject its filing, as justification for in effect ignoring the hearing of 7 August 2025. However, the registrar rejected the lodgement for filing on 4 July 2025, so the timing of such rejection does not affect or excuse the non-attendance at the 7 August 2025 hearing.

18 Mr Akibou Yacouba also continues to assert the decision in Yacouba (No 1) was wrong and that it involved impropriety on the part of others. Those allegations are without any evidentiary foundation and do not support the setting aside of the consolidation order. Mr Akibou Yacouba chooses to ignore the reasons given for the decision in that matter. Although somewhat unclear, it appears that Mr Akibou Yacouba asserts that the 'wrong' decision in Yacouba (No 1) undermines the veracity of the consolidation order. The decision in Yacouba (No 1) has not been set aside or overturned.

19 More relevantly to the principles, Mr Akibou Yacouba submitted that the two matters should not be consolidated because the proceedings are at different stages. So much is true, but only because Mr Akibou Yacouba has not at any time filed a statement of claim in the second proceeding (WAD 184 of 2025) and has not filed the statement of claim in the consolidated proceeding as ordered. The stages of the two proceedings can readily be aligned in a consolidated proceeding, and indeed that was the purpose of programming orders made on 7 August 2025.

20 Mr Akibou Yacouba also submitted that the proceedings are distinct; the legal issues in each are not identical and the relief sought is different; and that less intrusive case management options are available, such as 'hearings conducted together'. Mr Akibou Yacouba submitted that the consolidation order 'undermines procedural fairness and my ability to have each matter determined on its merits'.

21 The Court is experienced in assessing in the one proceeding a number of different claims and different relief arising out of a continuum of conduct between parties. I do not accept that such a course undermines procedural fairness or the ability for a party to have each issue determined on its merits.

22 As addressed in Yacouba (No 2), the factual basis of both applications filed by Mr Akibou Yacouba is similar. Both applications arise out of the former employment by Mr Akibou Yacouba with the respondent. There are allegations as to Mr Akibou Yacouba's alleged misconduct, the provision of a show cause letter and a decision by the respondent to terminate Mr Akibou Yacouba's employment. The parties are the same. The allegations overlap.

23 A t the time I made th e consolidation order, I was of the view that cons olidation best p romote d the just resolution of the matters, and would best limit delay and costs. I considered that i f they we re dealt with separately, it would tend to complicate the resolution of the matter s and be inefficient. I said that, ' [i ] n particular, bifurcation will add to the complexity, increase the use of Court resources and inappropriately add to the costs of the respondent ' (Yacouba (No 2) at [5]). I also said that, ' Mr Akibou Yacouba is likely to be assisted by a consolidation order, in that all matters will be addressed together and in a manner that has regard to the whole chronology of the relevant factual matters that underlie the claims and events between the parties' (Yacouba (No 2) at [7]). Having regard to Mr Akibou Yacouba's position as a litigant in person, I was careful to determine a course of action that remained fair to all parties but that I thought would be of assistance to him.

24 I maintain these v iew s, despite taking into account the matters now raised by Mr Akibou Yacouba. Mr Akibou Yacouba has not exp lained why hearing the matters together or in some other manner (but without co nsolidation) would be a better means of achieving an efficient and just outcome such that the consolidation order should be set aside. I consider consolidation with one set of pleadings, one set of disclosed documents and one set o f witness statements and submissions going forward is undou btedly t he better way for all the complaints brought by Mr Akibou Yacouba arising out of his employment by the respondent to be determined.

25 Having regard to the principles set out at [11], I am not satisfied that it is appropriate to set aside the consolidation order and accordingly I dismiss Mr Akibou Yacouba's interlocutory application.

26 There are additional matters to address arising out of the application.

27 I informed Mr Akibou Yacouba at the hearing that I considered paragraphs [27]-[33] of his Affidavit to be scandalous, vexatious and irrelevant, and that the Affidavit in the form that it was filed should be removed from the Court file, but on the basis that Mr Akibou Yacouba was free to re-file it with the offending paragraphs removed. The Affidavit made allegations, unsupported by evidence, of a serious nature alleging dishonesty and fraud on the part of certain named persons. In the offending paragraphs Mr Akibou Yacouba also said that that he had lodged complaints about persons with regulatory and other bodies and in one instance had complained about the investigation undertaken by one of those bodies. Such allegations have nothing to do with the interlocutory application to set aside the consolidation of the proceedings. More importantly, the allegations are of a serious nature and appear to be no more than opinions held by Mr Akibou Yacouba without any underlying objective or independent evidence. Accordingly, I determined that the scandalous and vexatious material was to be removed from the Court file. I made a similar order in Yacouba (No 1). Mr Akibou Yacouba continues, regardless, to include such material in his affidavits.

28 In his communications and submissions, Mr Akibou Yacouba readily and repeatedly imputes malevolent intent on the part of any person who might have some involvement in this proceeding, whether they be registry staff, registrars or others, and this unfortunate and unjustified approach has diverted Mr Akibou Yacouba from advancing his proceeding to trial. He assured me, when asked, that he wishes to have the complaints against the respondent determined at trial. Consistent with this aim, it is important that Mr Akibou Yacouba engage with the pleading orders already made. I will extend the time for providing the consolidated pleading to 24 April 2026.

29 I suggested during the hearing that if Mr Akibou Yacouba is having difficulty with th e consolidated pleading task, there is no reason why he cannot add his pleaded case in relation to the matters originally the subject of WAD 184 of 2025 into the existing statement of claim in WAD 221 of 2024 by way of an additional section. It is not necessary for him to re-write the original statement of claim completely. This course does not deny the respondent the potential to pursue any strike out or other application it might seek t o file after considering the consolidated statement of claim, once received. However, my suggestion to Mr Akibou Yacouba was aimed at assisting him in progressing towards trial.

30 Finally, Mr Akibou Yacouba has a practice of circulating communications, many of which contain objectionable and scandalous material, to a large number of persons, including employees of the respondent. As the respondent is represented by Sparke Helmore Lawyers, and Mr Bennett is actively involved in its representation, there is no reason for Mr Akibou Yacouba to be communicating directly or indirectly with the respondent's employees. Mr Bennett indicated that the practice of issuing such 'persistent, unsolicited, unwelcome and often intimidating' communications, directly or through his 'support person' Mr Celestine Ogbonna, causes the individuals who receive such communications discomfort and stress. Mr Bennett observed that in the preceding week, a list of approximately 26 of his client's representatives had received over 15 emails from Mr Akibou Yacouba. The communications are also entirely unnecessary, because Mr Bennett is the solicitor on the record and has told Mr Akibou Yacouba that he informs and advises the respondent about Mr Akibou Yacouba's position relating to the proceedings as required. I have no reason to doubt this is the course undertaken by Mr Bennett.

31 Mr Akibou Yacouba said he issues the communications to so many people 'in the interests of transparency' and justice. He said I ought not have empathy and sympathy towards the recipients of the emails because, in his opinion, he is the victim. This purported justification and submission does not excuse behaviour that is of a scandalous, intimidatory and unnecessary nature. Rather, as observed by Burley J in Murdock v Virgin Australia Airlines Pty Ltd [2022] FCA 1074 at [30], inappropriate communications of such nature are antithetical to the overarching purpose of the civil practice and procedure provisions which are to be understood by reference to s 37M of the Federal Cou r t o f Australia Act. See also Ogbonna v Qantas Airways Ltd [No 4] [2023] WASC 21 at [78]-87.

32 It is inappropriate that correspondence to a party's employees (and others) proceed in this manner. For the Court to permit such a course to continue bears the risk of bringing proceedings before the Court and the administration of justice into disrepute. Further, such communications have the effect of distracting from the real issues between the parties and so deferring the resolution of any genuine claims that a party may have. I will order that Mr Akibou Yacouba be restrained from directly or indirectly communicating by any means in relation to identified persons employed or otherwise engaged by or on behalf of the respondent. I note that the restraint extends to Mr Celestine Ogbonna communicating on Mr Akibou Yacouba's behalf, as such conduct falls within the restraint on 'indirect' communication. Subject to the manner in which Mr Akibou Yacouba communicates going forward, it may be necessary to expressly expand such restraint to communications to other persons, and there will be liberty to apply accordingly. For example, I note that Mr Bennett has specifically asked Mr Akibou Yacouba to communicate only with him and with no other person at Sparke Helmore Lawyers (by email, telephone or otherwise). This is a reasonable request in all of the circumstances and Mr Akibou Yacouba should comply with it. If Mr Akibou Yacouba fails to comply with this request, additional restraints may be imposed.

33 I should add that the core question before me is whether the interlocutory application should be granted. None of what is said at [27]-[32] above is relevant to the determination of that application, which I have resolved by reference to the well-known principles.

| I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. |
Associate:

Dated: 10 April 2026

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