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.

Before this judgment, there had already been procedural activity in the first proceeding. On 12 June 2025, the Court dismissed an application by Mr Yacouba for judgment on alleged admissions. Then, on 10 July 2025, the respondent's solicitor, Mr I Bennett of Sparke Helmore Lawyers, reported to the Court that conferral about case management had not been productive and sent proposed orders that included consolidation of the two proceedings.

Mr Yacouba told the Court that he did not want the matters heard together at one case management hearing. Even so, both matters were listed for hearing on 7 August 2025, and the parties were informed of those listings. Mr Yacouba did not appear at the hearings. After being satisfied that he had notice, the Court made orders including consolidation and directed him to file a consolidated amended statement of claim by 5 September 2025. That did not happen.

On 27 January 2026, Mr Yacouba applied under rule 39.05 of the Federal Court Rules 2011 (Cth) to set aside the consolidation order made in his absence. In substance, he wanted the proceedings de-consolidated. The respondent opposed that application.

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 Court also rejected the substance of the challenge to consolidation. Mr Yacouba argued that the proceedings were at different stages, were distinct, involved different legal issues and relief, and that less intrusive case management options were available. He also argued that consolidation undermined procedural fairness and his ability to have each matter determined on its merits.

The Court did not accept those submissions. It said the proceedings were at different stages only because Mr Yacouba had not filed a statement of claim in the second proceeding and had not filed the consolidated statement of claim as ordered. The Court considered that the stages could readily be aligned in a consolidated proceeding, and that this had been the purpose of the programming orders made on 7 August 2025.

The Court also said it is experienced in dealing within one proceeding with different claims and different relief arising out of a continuum of conduct between parties. It rejected the suggestion that this would undermine procedural fairness or prevent each issue being decided on its merits.

Importantly, the Court reaffirmed the factual basis for consolidation. Both applications arose out of the same former employment. Both involved the same parties. Both included overlapping allegations, including allegations about misconduct, the issuing of a show cause letter and the decision to terminate employment. The Court maintained its earlier view that consolidation best promoted the just resolution of the matters and would best limit delay and costs. Separate proceedings would complicate resolution, increase use of Court resources and add to the respondent's costs.

The Court also said consolidation was likely to assist Mr Yacouba as a litigant in person because all matters could be addressed together with regard to the whole chronology of the relevant factual events. It remained of the view that one set of pleadings, one set of disclosed documents and one set of witness statements and submissions was the better way to determine all complaints arising out of the employment relationship.

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.

The Court also restrained the applicant until further order from directly or indirectly communicating by any means in relation to the proceeding with any person described in Attachment A to the orders. The attachment covered any person employed or otherwise engaged by or on behalf of the respondent, and it specifically listed named personnel including Melissa Alexiou, Wayne Box, Wenda Donaldson, Cecilia Hemana, Jenni Hutchins, Dianne Jackson, Lisa Landon-Smith, Craig Lawn, Con Manos, Jessica Oostenbroek, Calum Sawford and Brenda Yelland.

The catchwords explain that this order responded to repeated and unnecessary communications made by or on behalf of the applicant directly with employees of the respondent. The Court said the order was made in exercise of its power to regulate legal proceedings. That is practically important. It shows that if direct contact with staff becomes disruptive to the conduct of litigation, the Court may impose a targeted restraint, including by reference to a defined list of personnel.

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 case also highlights the importance of communication discipline. Once a matter is in court, businesses should centralise communications through authorised people, usually legal representatives or nominated internal contacts. Managers and staff should understand that they should not engage in side discussions about the proceeding unless they have been told to do so. That is especially important where the other side is self-represented, because informal exchanges can quickly become contentious and may later be raised before the Court.

Another practical point is attendance and timetable compliance. Case management hearings matter. Orders made at those hearings can shape the whole proceeding, and setting them aside later is not straightforward. Businesses should therefore treat every listing, filing date and procedural direction as commercially significant.

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.