Federal Court of Australia

Ogbonna v Link Workforce Pty Ltd (No 3) [2026] FCA 668

ORDERS

THE COURT ORDERS THAT:

1.    Until the applicant provides the Court with a signed written undertaking stating that he has read the Litigants in Person Practice Note (GPN-LIP) and, consistently with paragraphs 4.7 to 4.12 of GPN-LIP, he undertakes that he will act respectfully and courteously and will not act in an intimidating, threatening or rude manner when dealing with Judges, Registrars, Court staff and lawyers for other parties, or further order of the Court, the proceeding be stayed.

2.    The costs of the case management hearing held on 6 May 2026 be reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    Due to the applicant’s conduct at a case management hearing held on 12 March 2026, orders were made, amongst others, to the effect that by 2 April 2026 the applicant file and serve any written submissions and affidavit in support to show cause as to any reason the Court should not make an order staying the proceeding unless and until the applicant gives a signed written undertaking to the Court to the effect that he has read the Litigants in Person Practice Note (GPN-LIP) and undertakes to act in a manner consistent with paragraphs 4.7 to 4.12 of that note. Written reasons for that and other orders were published at the same time: Ogbonna v Link Workforce Pty Ltd (No 2) [2026] FCA 298. The applicant filed no written submissions or affidavit in response to the request to show cause.

2    On 6 May 2026 another case management hearing was held. When the matter was called on for hearing the applicant was, again, absent. The respondent applied to have the proceeding dismissed for the applicant’s non-attendance. After an indication that the presiding judge was not minded to make such an order, the respondent made a submission to the effect that, due to the applicant’s conduct at the case management hearing on 12 March 2026, the proceeding should be stayed unless and until the applicant provides the Court with an appropriate undertaking to act consistently with GPN-LIP. After the respondent made that submission, the applicant entered the courtroom and announced his appearance.

3    The presiding judge then made a number of observations relating to the applicant’s conduct at the case management hearing on 12 March 2026 and explained again in summary form the reasons orders were made requesting him to show cause as to why the proceeding should not be stayed pending the provision of an undertaking. The applicant was informed that he would be afforded an opportunity to make oral submissions on that subject, but he would not be permitted to make submissions on irrelevant topics or make unfounded assertions of impropriety on the part of judicial officers, registrars, Court staff, or legal representatives of the respondent. The applicant was informed that there were other processes available to make complaints about judicial officers, registrars, Court staff and legal representatives which he could pursue if he wished to do so. The applicant was also informed that if he apprehended that the presiding judge was biased he could make an application for recusal. The applicant indicated that he did not want to make a recusal application.

4    Otherwise, the applicant interrupted the presiding judge numerous times while the observations, explanation and information were provided. The applicant became agitated, angry and aggressive and after repeated interruptions the hearing was adjourned for a short period in an attempt to restore decorum. When the hearing was resumed the applicant was informed that if he continued talking over the presiding judge and ignoring instructions about the topics his submissions were to address the hearing would be adjourned and the matter dealt with in his absence. The applicant indicated that he would not provide the Court with an undertaking to act consistently with GPN-LIP. The applicant was then invited to make submissions on the question of whether, in the absence of an undertaking, there should be a stay of the proceeding.

5    The applicant’s submissions were not addressed to the issue in question; namely, the manner in which the Court could ensure that the proceeding was conducted fairly for all parties and consistently with the due administration of justice if the applicant refused to give an undertaking or otherwise demonstrate that he would modify the way he conducted himself in his prosecution of the proceeding. The applicant ignored the presiding judge’s admonition not to make irrelevant submissions or unfounded assertions of impropriety. However, amongst other things, the applicant indicated that he wanted an order for the proceeding to be stayed because he had made an application to the High Court for judicial review of the decision of Derrington J in Ogbonna v Link Workforce Pty Ltd [2024] FCA 119. In 2024 Derrington J dismissed an application the applicant had made for leave to appeal from the interlocutory judgment in Ogbonna v Link Workforce Pty Ltd [2023] FCA 633 by which the applicant’s application for judgment against the respondent based on asserted admissions was dismissed. Therefore, paradoxically, the applicant also applied for a stay of his proceeding but for reasons that differed to those of the respondent.

6    Although the applicant’s behaviour at the case management hearing on 6 May 2026 was not as extreme as that on 12 March 2026 described in Ogbonna (No 2), the level of the applicant’s agitation, anger and aggression was equally disconcerting and loomed violence. As mentioned, it was necessary to adjourn the hearing for a short time in an attempt to restore decorum. Further, the applicant was again late to the hearing and his repeated interruptions and talking over the presiding judge again extended what should have been a relatively brief hearing to one of 45 minutes in duration. In short, nothing in the applicant’s submissions, conduct or attitude allayed the concerns for the proper administration of justice expressed in Ogbonna (No 2). Further, the applicant made no submission against a stay of the proceeding.

7    Section 23 of the Federal Court of Australia Act 1976 (Cth) confers power on the Court, in relation to matters in which it has jurisdiction, to make orders, including interlocutory orders, of such kinds as it thinks appropriate. The Federal Court also has an implied power to make orders necessary for the exercise of the jurisdiction conferred on the Court: Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 618-619 (Wilson and Dawson JJ), 622-624 (Deane J). These powers extend to ordering a permanent stay of proceedings as an abuse of process: Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392-393 (Mason CJ, Deane and Dawson JJ).

8    The categories of abuse of process are insusceptible of formulation into closed categories: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ). In general, the power to stay a proceeding is enlivened where the use of the Court’s procedures occasions unjustifiable oppression to a party or where the use serves to bring the administration of justice into disrepute: UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [1] (Kiefel CJ, Bell and Keane JJ). Abuse of process may arise in either the institution of proceedings or the conduct of a procedural step in proceedings properly commenced: Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 286 (McHugh J).

9    It is also important to keep in mind that the counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion: CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 at 391 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). There are many circumstances in which the Court will make interlocutory orders that are necessary to protect or prevent prejudice to the proper administration of justice. Examples include: restraining a legal practitioner who has a personal interest in the outcome from representing a party in the proceeding; freezing orders and other orders to preserve the subject matter of the proceeding; and suppression and non-publication orders.

10    Unchecked conduct of litigants (or legal practitioners) that is abusive, intimidating or threatening towards judges, registrars, Court staff, legal practitioners and other litigants, has the potential to deter other litigants and (or) their legal representatives from continuing to prosecute their claims or defences and members of the public from attending and observing proceedings in open court. If unchecked, such conduct also has the potential to deter members of the public from commencing or defending proceedings for fear of becoming subject to similar abuse, intimidation or threats. Put shortly, if such conduct were permitted to continue it risks undermining public confidence in the proper administration of justice.

11    Access to justice and the right for individuals to prosecute and represent themselves in proceedings in the Court is, of course, also important for the proper administration of justice. However, the right of litigants to represent themselves is not unfettered and should not be permitted to ride roughshod over the rightful and legitimate expectation of other litigants, legal practitioners and members of the public that all proceedings in the Court be conducted respectfully and in accordance with norms of civility and decency. The applicant’s conduct at the case management hearings on 12 March and 6 May 2026 was disrespectful and well outside those norms. Due to the applicant’s prior behaviour and refusal to proffer an undertaking to act respectfully and within those norms, without Court intervention, there is no confidence that the applicant will be able to conduct the proceeding in line with public expectations and without bringing the administration of justice into disrepute.

12    Section 37M of the Federal Court Act is also relevant. That section provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The parties to a civil proceeding before the Court must conduct the proceeding consistently with the overarching purpose: s 37N. The determination of whether the bringing or continuance of a proceeding is an abuse of process must take into account s 37M and s 37N. Timely, cost-effective and efficient conduct of a proceeding takes into account wider public interests than the specific interests of the parties to the dispute. Further, the ‘just resolution’ of a dispute may require the proceeding be stayed permanently notwithstanding that the merits of an applicant’s claim have not been determined. While an applicant has a ‘right’ to institute a proceeding, a respondent also has ‘rights’ that include invoking the power of the Court to stay a proceeding in certain circumstances: UBS AG at [34], [38]-[40].

13    As Kiefel CJ, Bell and Keane JJ observed in UBS AG:

45    The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court’s decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation. To insist, for example, on “inexcusable delay” as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice.

14    While it is not suggested that the applicant’s conduct has been ‘tactical’ the effect of it has been the same. Consistently late attendances, repetitive interruptions and irrelevant submissions at routine case management hearings necessarily leads to delay, increased expense and inefficiency. As observed in Ogbonna (No 2), where a party to a matter arising under the Fair Work Act 2009 (Cth) fails to act consistently with the overarching purpose of the civil practice and procedure provisions but does not act unreasonably within the meaning of s 570 of the Fair Work Act, the evident public interest that underpins s 570 has the potential to undermine the public interest reflected in s 37M of the Federal Court Act. Thus, delay, increased expense and inefficiency have elevated potential to operate unfairly and oppressively in Fair Work and other limited cost jurisdictions.

15    The manner in which the applicant has acted at case management hearings has unduly prolonged those hearings, has made them inefficient, and inevitably will have resulted in increased legal costs for the respondent. If the applicant continues acting as he has done, the incremental effect of delay, increased expense and inefficiency portends real unfairness to and oppression of the respondent. Further, without modification of the applicant’s behaviour, it is impossible to conceive of completing any trial within a timeframe that is proportionate to the importance and complexity of the matters in dispute or affording both the applicant and the respondent fair opportunity to adduce evidence and make submissions at such a trial.

16    For the foregoing reasons, it is necessary to protect the proper administration of justice that the proceeding be stayed. The circumstances are not such that the stay need be permanent. If the applicant secures legal representation, proffers a suitable undertaking to the Court or otherwise demonstrates that he is willing and able to conduct himself in a manner that is consistent with the standards described in GPN-LIP the stay should be lifted and the proceeding prosecuted. The costs of the case management hearing held on 6 May 2026 should also be reserved.

Associate:

Dated:    29 May 2026