Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited (No 3)

In Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited (No 3) [2026] FCA 417, the Federal Court refused to set aside an earlier order that had consolidated two related employment proceedings. The applicant, who appeared in person, had not attended the hearing where consolidation was ordered. The respondent was represented by a solicitor. The Court held there was no reasonable explanation for the non-attendance and no persuasive basis for undoing the consolidation.

The Court also made further procedural orders. It required an affidavit to be removed from the file unless certain paragraphs were redacted or struck out, and it restrained direct or indirect communications in relation to the proceeding with a defined group of the respondent's personnel. For businesses, the case is a practical example of how the Court manages overlapping employment claims and controls litigation conduct.

Mr Yacouba worked for Key Assets as a casual youth worker from October 2023 until April 2025. During and after that employment relationship, he brought two separate general protections proceedings in the Federal Court against the same employer.

The first proceeding was filed on 9 August 2024. It sought relief relating to his employment and alleged adverse action, discrimination, bullying and defamatory statements. The second proceeding was filed on 30 May 2025. In that later matter, he alleged that the respondent had made allegations of misconduct against him and had terminated his employment because he had raised concerns about work practices and because of his racial background.

So although the two proceedings were not framed in exactly the same way, they were both tied to the same employment relationship and to overlapping events in the lead-up to the end of that employment. The reasons specifically refer to allegations about misconduct, a show cause letter and the decision to terminate employment.

The main question was whether the Court should use rule 39.05 to set aside an interlocutory order that had been made in the absence of a party. Rule 39.05 allows the Court to vary or set aside a judgment or order after entry in some circumstances, including where the order is interlocutory or was made in the absence of a party.

The Court said the power is discretionary but limited. It is to be exercised cautiously and only in truly exceptional circumstances. It is not an appeal mechanism, and it is not the proper way to argue that the earlier order was legally wrong.

Where an order was made in a party's absence, the Court said it will usually consider two things. First, whether there is a proper explanation for the non-attendance. Second, whether the evidence shows a ground of sufficient merit to justify setting the order aside. The Court also had to consider case management principles and the overarching purpose in section 37M of the Federal Court of Australia Act 1976 (Cth), which focuses on resolving disputes justly, quickly, inexpensively and efficiently.

The Court dismissed the application to set aside the consolidation order. It held that Mr Yacouba had not been deprived of the opportunity to be heard on 7 August 2025. He had prior notice that the respondent would seek consolidation on that date, and he had already informed the Court that he preferred the actions to progress separately. That position had been taken into account at the earlier hearing.

The Court was not satisfied that he had provided a reasonable explanation or justification for not attending. In his affidavit, he referred to overseas travel, but the travel referred to a period from 13 September 2025, which was after the hearing date. He also relied on having lodged an application to set aside the earlier June 2025 decision and on a registrar's rejection of that filing.

The Court held that this did not excuse his non-attendance at the 7 August 2025 hearing, especially because the registrar had rejected the lodgement on 4 July 2025.

The judgment did more than deal with consolidation. It also addressed how the proceeding was being conducted. The Court ordered that the applicant's affidavit filed on 27 January 2026 be removed from the Court file unless paragraphs 27 to 33 were redacted or otherwise struck out. The orders state that this was made pursuant to rules 1.32, 1.40 and 6.01 of the Federal Court Rules 2011 (Cth). The catchwords describe the problem as scandalous material contained in the affidavit.

For businesses, that is a useful reminder that affidavits are evidence, not a place for inflammatory allegations or unsupported attacks. If material crosses the line, the Court can require it to be removed from the file or refiled in a corrected form.

This case is a strong example of the Court preferring substance over form in case management. If multiple proceedings are really part of one employment story, the Court may want them managed together even if the claims are framed differently or seek different relief. For an employer, that means litigation planning should start with the factual chronology, not just the labels attached to each claim.

Where there is overlap, a consolidated process can reduce duplication in witness preparation, document collection and hearing time. It can also reduce the risk of inconsistent positions being taken across separate proceedings. The Court's reasoning makes clear that efficiency is not only about the Court's own resources. It also includes avoiding unnecessary cost and complexity for the parties.

The judgment was delivered by Banks-Smith J in the Federal Court of Australia, Western Australia Registry, in the Employment and Industrial Relations National Practice Area. Judgment was dated 9 April 2026 and the reasons were published on 10 April 2026.

The Court dismissed the application to set aside the consolidation order, extended the time for the applicant to file and serve an amended consolidated statement of claim to 24 April 2026, directed that the proceeding be listed for case management for allocation of final hearing dates, reserved costs and granted liberty to apply.