Federal Court of Australia

Akibou Yacouba v Key Assets The Children's Services Provider (Australia) Limited [2025] FCA 614

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application filed 9 May 2025 is dismissed.

2.    Annexure 'AMAY-14' to the affidavit of the applicant filed 9 May 2025 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).

3.    The affidavit of the applicant filed 10 June 2025 must be removed from the Court file pursuant to r 1.32, r 1.40 and r 6.01 of the Federal Court Rules, and may be refiled on the condition that paragraphs 5(c), 5(d), 5(e), 5(f), 14 and 15 are redacted or otherwise struck out.

4.    Costs of the interlocutory application and the hearings of 5 June 2025 and 11 June 2025 are reserved.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    By an interlocutory application lodged 9 May 2025 Mr Akibou Yacouba seeks summary judgment on admissions based on his contention that the respondent failed to file a notice of dispute in response to his notice to admit.

2    Mr Akibou Yacouba commenced these proceedings against Key Assets The Children's Services Provider (Australia) Limited (KAA) in August 2024.

3    Mr Akibou Yacouba was employed by KAA as a casual youth worker. The claim arose after KAA wrote to Mr Akibou Yacouba about potential conduct issues. A young person had raised those issues, and they related to Mr Akibou Yacouba's conduct in his employment. KAA referred in its communications with Mr Akibou Yacouba to both the issues that had been raised and investigations into those issues.

4    Mr Akibou Yacouba asserts he was bullied and the subject of unlawful discrimination in the workplace. He seeks payment of lost income and compensation for 'defamation, emotional trauma and stress' and aggravated damages.

Admissions under Part 22

5    Mr Akibou Yacouba submitted that his case is proved by admissions deemed to have been made by KAA.

6    Mr Akibou Yacouba purported to serve a notice to admit facts pursuant to r 22.01 of the Federal Court Rules 2011 (Cth). The notice to admit was dated 22 January 2025. Mr Akibou Yacouba also filed the notice to admit, although there is no requirement to do so under the Federal Court Rules.

7    Part 22 of the Federal Court Rules relevantly provides:

22.01    Notice to admit facts or documents

A party (the first party) may serve on another party (the second party) a notice, in accordance with Form 41 (the notice to admit), requiring the second party, for the purpose of the proceeding only, to admit the truth of any fact and the authenticity of any document specified in the notice to admit.

22.02    Notice disputing facts or documents

The second party may, within 14 days after service of the notice to admit, serve on the first party a notice of dispute, in accordance with Form 42, disputing the truth of any fact or the authenticity of any document specified in the notice to admit.

…

22.04    Facts or documents taken to be admitted if not disputed

If the second party does not serve a notice of dispute in accordance with rule 22.02, the second party will be taken to have admitted the truth of each fact or the authenticity of each document specified in the notice to admit.

Note: The Court may dispense with compliance with this rule - see rule 1.34.

…

22.07    Judgment on admissions

If a party makes an admission, another party may apply to the Court for any judgment or order to which the party is entitled on the admission.

8    There are some important principles that guide the consideration of any application under r 22.07.

9    First, there is a pre-condition that must be satisfied in order to bring an application under r 22.07. A recipient of a notice to admit must have failed to serve a notice of dispute within the time frame provided by r 22.02.

10    Second, if a matter specified in a notice to admit facts is not a fact, there will be no implied admission and no costs consequence: McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2004] FCA 1299 at [25] (Nicholson J).

11    Third, a notice to admit that sets out matters of fact and law in a rolled-up way will not comply with r 22. Rule 22.01 does not allow the first party to specify matters of law or mixed fact and law in the notice. As Goldberg J observed in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [58] (in relation to the equivalent provisions under the former Federal Court Rules):

I do not consider that it was either reasonable or appropriate to require the respondents, under the pain of an order for costs pursuant to O18 r2 of the Federal Court Rules, to respond to a notice which substantially reproduced the allegations in the amended statement of claim in a rolled-up way and in a form which required the respondents to make admissions as to matters which were not clearly separated from other matters. Further, in a number of respects it was not possible to sever components of matters, the subject of the notices to admit, without having any consequential effect on other paragraphs in the notices to admit.

12    To similar effect see Montgomery v Child Support Registrar [2015] FCA 891 at [44]-[48] (Rangiah J).

Relevant procedural events

13    Mr Akibou Yacouba is a litigant in person, and as is often the case in such matters, a registrar of this Court was allocated to assist as required.

14    Registrars of this Court have delegated powers under the Federal Court Act of Australia 1976 (Cth) and the Federal Court Rules. That is, certain powers of the Court may be exercised by a registrar: s 35A(1)(h) of the Federal Court Act; r 3.01 of the Federal Court Rules; Part 3.3 and Part 3.7 of Schedule 2 of the Federal Court Rules.

15    In accordance with his delegated powers, the allocated registrar in this case has made a number of case management and other orders. The registrar also referred Mr Akibou Yacouba to the Self Representation Service operated by Legal Aid WA.

16    At a case management hearing on 11 October 2024 the registrar made programming orders relating to the filing of any amended application (by 8 November 2024) and the filing of a reply and defence.

17    Mr Akibou Yacouba lodged the amended originating application a week late (on 15 November 2025), so adjustment to the programming orders was required. At a further case management hearing on 29 November 2024, the registrar ordered that KAA file a response to the amended originating application and a defence to the statement of claim by 17 January 2025.

18    A further case management hearing took place on 29 January 2025. On that date Mr Akibou Yacouba sought leave to file a reamended originating application. Leave was granted and KAA was given until 12 February 2025 to file a response to the reamended originating application and defence to the statement of claim. Mr Akibou Yacouba was given until 26 February 2025 to file any reply.

19    In the meantime, on 13 February 2025 Mr Akibou Yacouba filed an interlocutory application and a supporting affidavit seeking summary judgment based on KAA's alleged failure to respond to the notice to admit.

20    I will refer to the 13 February 2025 application as the first interlocutory application and will refer to the application before me filed 9 May 2025 as the second interlocutory application.

21    KAA had in fact served a notice of dispute on 5 February 2025. The notice of dispute and covering email from KAA's solicitors to Mr Akibou Yacouba was in evidence as they are annexed to an affidavit filed by Mr Akibou Yacouba on 9 May 2025.

22    The first interlocutory application came before the registrar on 4 March 2025 and was dismissed.

23    The registrar gave oral reasons. The primary reason was that there was no basis upon which Mr Akibou Yacouba could bring the summary judgment application because the notice of dispute had been served. The registrar also observed that pleadings had not closed (presumably indicating that KAA was still to have its proper opportunity and obligation to address whether it would admit any allegations by the usual route of its pleading).

24    As the first interlocutory application was dismissed, the registrar proceeded to extend the date by which KAA was to file its response to the reamended originating application and its defence to the statement of claim to 18 March 2025.

25    I note that KAA did not file its defence by 12 February 2025. Based on the transcript of the hearing of 4 March 2025, counsel for KAA explained to the registrar that they were only hours from filing the defence when the first interlocutory application seeking judgment based on the notice to admit was filed. It is unsurprising that in those circumstances, once the first interlocutory application was dealt with and dismissed, the registrar also ordered that the time for KAA to file its response and defence was extended to 18 March 2025. The registrar granted Mr Akibou Yacouba until 1 April 2025 to file any reply to the defence.

26    A further case management hearing was conducted by the registrar on 8 April 2025, and on that date, as the pleadings had closed, the registrar ordered that the matter come back to the docket judge to be listed for hearing.

27    The second interlocutory application and supporting affidavit were then filed.

28    I offered to hear the second interlocutory application at a case management hearing on 5 June 2025. At the hearing, Mr Akibou Yacouba suggested it be adjourned so that he could file a written outline of submissions, and I agreed to that request. KAA did not seek to rely on any written outline of submissions but foreshadowed that its opposition included the fact that a notice of dispute had in fact been served as required, and that the second interlocutory application was an abuse of process because it sought the same relief as the first interlocutory application.

29    Mr Akibou Yacouba filed a written outline of submissions and a further affidavit on 10 June 2025. The application came before me for hearing on 11 June 2025.

Why the application is dismissed

30    I dismiss the second interlocutory application for three independent reasons.

31    First, KAA complied with r 22.02. The notice to admit was served on KAA's solicitors on Wednesday, 22 January 2025. KAA's solicitors served a notice of dispute on Mr Akibou Yacouba two weeks later, on Wednesday 5 February 2025. Therefore, the notice of dispute was served within the time period provided for by r 22.02 of the Federal Court Rules, having regard to the calculation of time in accordance with r 1.61. Mr Akibou Yacouba's contention that the notice of dispute had to be filed within that 14 day period is wrong. The rules do not require such step. As the notice of dispute does not have to be filed, there is no requirement for 'stamping'. The rules do not require a 'stamped copy' to be served. They require only that the notice of dispute be served. All Mr Akibou Yacouba's submissions about the conduct of KAA, its solicitors or the registrar that are based on KAA's asserted failure to file the notice of dispute or serve a stamped copy of the notice of dispute fall away and are without foundation.

32    Second, the notice to admit is in any event objectionable and in the exercise of my discretion under r 1.34 of the Federal Court Rules, I would set it aside. Many of the statements made in the notice to admit consist of matters of law or 'rolled up' matters of fact and law. Rule 22.01 allows a party to serve a notice requiring a second party to 'admit the truth of any fact … specified in the notice to admit'. As observed above, r 22.01 does not allow the first party to specify matters of law or mixed fact and law in the notice. The notice served by Mr Akibou Yacouba does not comply with r 22.01. For example, apart from paragraphs 1, 5, 8, 9, 10, 12, 13, 15, 16, 17, 24, 25 and 26, each paragraph incorporates rolled-up facts and conclusions of law. This is apparent either from Mr Akibou Yacouba's descriptions of conduct as being without justified reason, discriminatory, libellous, defamatory, bullying, circumventing due process or malicious, or from his stated conclusions that contraventions had occurred or raise questions of vicarious liability.

33    The balance paragraphs (1, 5, 8, 9, 10, 12, 13, 15, 16, 17, 24, 25 and 26) set out extracts from letters or state that letters were sent, or recite procedural steps and orders. Even if facts within those paragraphs were taken to be admitted, such matters to do not establish any basis upon which judgment could be entered summarily against KAA.

34    I note that KAA in the notice of dispute identified that the content of the purported facts in the notice to admit were inappropriately framed and characterised, such that the validity and enforceability of the notice to admit were disputed.

35    Third, it would be contrary to the objective of seeking the just determination of all proceedings before the Court reflected in s 37M of the Federal Court Act to ignore the fact that the notice to admit (even if, contrary to what I have found at [32], it were valid) was served at a time when KAA was about to file its pleaded defence. There is no doubt on the face of the notice of dispute served 5 February 2025 and the defence since filed that KAA disputes the allegations made against it. The defence engages with the allegations, including facts that relate to the questions of law that arise, and is not a general denial of liability. Summary judgment should generally only be ordered in clear cases. In particular, judgment on admissions is generally only given where a clear and unanswerable case is made out: Worldwide Timber Traders Pty Ltd v Brouwer (No 2) [2009] FCA 447 at [13]-[14] (McKerracher J). In the face of KAA's express and pleaded denials of liability, even if the notice of dispute had not been served within time, I would dispense with the operation of r 22.04 insofar as it purported to have the effect that KAA was taken to admit the truth of any facts in the notice to admit. I would refuse to enter judgment in the circumstances of this case under r 22.07 of the Federal Court Rules.

36    As foreshadowed by KAA, a question arises as to whether Mr Akibou Yacouba's second interlocutory application seeking the same relief as that sought from the registrar on 4 March 2025 is an abuse of process. If Mr Akibou Yacouba wished to challenge the registrar's orders made on that date, the proper course was to seek review of that decision. Had he done so, he would have been entitled to a rehearing de novo of the application. Mr Akibou Yacouba did not seek a review. Instead, he brought this second interlocutory application and asked me to determine it. Rather than resolve whether filing the second application was an abuse of process, in all the circumstances, I decided to hear and determine this second application. It follows that to the extent that Mr Akibou Yacouba wished to have his application for summary judgment on admissions heard by a judge, such a hearing has been provided.

37    To the extent Mr Akibou Yacouba asserts that there was a failure by KAA to file a defence within time, such assertion does not assist in this application and nor does it accurately reflect the procedural history. The time period for filing the defence was extended by the registrar on a number of occasions, including as a result of amendments made by Mr Akibou Yacouba to the originating application and because he filed the first interlocutory application. The registrar was empowered to extend such time periods, just as he was empowered to extend the time for filing the amended originating application, an extension in Mr Akibou Yacouba's favour (r.1.39).

38    The interlocutory application filed by Mr Akibou Yacouba on 9 May 2025 is therefore dismissed and the parties are to proceed on the basis that first, there is no obligation to file a notice of dispute; and second, the notice of dispute was served within time.

Scandalous material in affidavits to be removed

39    Mr Akibou Yacouba's affidavit filed 9 May 2025 in support of the interlocutory application contains unfounded and serious allegations against KAA's solicitors and the registrar. I will not set them out, suffice to say that unfounded allegations are made as to alleged corruption and dishonesty. Having reviewed the orders made in this matter and Mr Akibou Yacouba's affidavit, the case management of this proceeding has been routine. There is no material that supports the scandalous and vexatious allegations that are made. KAA was never obliged to file the notice of dispute. Decisions have been made by the registrar as to programming and extensions of time for filing an amended originating application and other pleadings when appropriate. Indeed, as I have noted, Mr Akibou Yacouba failed to comply with at least one of the programmed dates and was granted an extension of time (order 1 of orders made 11 October 2024 not complied with). The grant of extensions of time and leave to file pleadings or amended pleadings in such circumstances and prior to trial are common discretionary decisions made both by registrars, utilising delegated powers, and by judges. I understand that Mr Akibou Yacouba was dissatisfied with the decision of the registrar made 4 March 2025 to dismiss the first interlocutory application, but Mr Akibou Yacouba had the same right as any other applicant in such circumstances to seek review of that decision. But as I have observed, and in any event, at his request I have now reheard what is for all intents and purposes the same application. The outcome remains the same.

40    Accordingly, annexure 'AMAY-14' to Mr Akibou Yacouba's affidavit filed 9 May 2025, which contains scandalous and vexatious material, is to be removed from the Court file pursuant to r 1.32, r 1.40 and r 6.01 of the Federal Court Rules. The removal of the annexure does not affect the outcome of Mr Akibou Yacouba's second interlocutory application because its contents are not relevant to the determination of whether KAA complied with r 22.02.

41    On 10 June 2025 Mr Akibou Yacouba filed a further affidavit in support of his application. I have had regard to the contents of the affidavit. Again, Mr Akibou Yacouba has made unfounded scandalous allegations in certain parts of the affidavit. Whilst Mr Akibou Yacouba does not agree with certain outcomes of the case management of this matter, there is no basis to jump from such disagreement to unfounded assertions of conspiracy, dishonesty and fraud made about the registrar, employees of the Court and solicitors. The 10 June 2025 affidavit is to be uplifted from the Court file pursuant to r 1.32, r 1.40 and r 6.01 of the Federal Court Rules. It may be refiled with paragraphs 5(c), 5(d), 5(e), 5(f), 14 and 15 redacted or otherwise struck out. The removal of those paragraphs does not affect the outcome of Mr Akibou Yacouba's second interlocutory application because their contents are not relevant to the determination of whether KAA complied with r 22.02.

42    I have taken into account the balance paragraphs of the 10 June 2025 affidavit. They appear to have been drafted with the intention of seeking to justify an award of aggravated damages in the event that I had been persuaded that judgment should have been entered in Mr Akibou Yacouba's favour on any admissions. The paragraphs otherwise constitute Mr Akibou Yacouba's opinions as to the alleged absence of any defence to his defamation pleading. Contrary to those assertions, KAA has in fact pleaded a defence in relation to those matters, including allegations about the alleged 'libellous' nature of a letter ('The Second Matter Complained Of'). KAA has made no admissions that would justify any judgment being entered against it.

43    Mr Akibou Yacouba's pleaded allegations should be dealt with in the ordinary course of a trial of the issues, and appropriate case management directions should now be made in that regard, in order to progress towards trial.

Orders

44    There will be orders dismissing the second interlocutory application accordingly.

45    Ordinarily a costs order in favour of KAA would follow from the dismissal of the second interlocutory application, but KAA is content for the question of costs to be reserved. I record for any future reference Mr Akibou Yacouba's submission that he should not have to pay costs because he is a litigant in person.

Associate:

Dated:    12 June 2025