Federal Court of Australia

Yacouba v Key Assets The Children’s Services Provider (Australia) Limited (leave to appeal) [2026] FCA 1371

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 23 April 2026 is dismissed.

2.    The Applicant pay the Respondent’s costs of the application for leave to appeal, pursuant to s 570(2) of the Fair Work Act 2009 (Cth), in an amount to be assessed if not agreed.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Applicant seeks leave to appeal against a judgment of a judge of this Court: Akibou Yacouba v Key Assets The Children’s Services Provider (Australia) Limited (No 3) [2026] FCA 417 (J). The primary judge:

    dismissed the Applicant’s application to set aside a previous order that consolidated two proceedings brought by the Applicant against the Respondent;

    ordered that an affidavit of the Applicant containing scandalous, vexatious and irrelevant material be removed from the Court file (although it could be re-filed with this material redacted or struck out); and

    made orders restraining the Applicant until further order from directly or indirectly communicating by any means in relation to this proceeding with persons employed or otherwise engaged by or on behalf of the Respondent.

2    The application for leave has been referred to me to exercise the appellate jurisdiction of the Court: see Federal Court of Australia Act 1976 (Cth) s 25(2)(a).

3    For the following reasons, the application for leave to appeal is dismissed. This is an appropriate case for an award of costs under s 570(2) of the Fair Work Act 2009 (Cth).

4    Decision on the papers: The Applicant has requested that this matter be determined without an oral hearing (see Federal Court Rules 2011 (Cth) r 35.18). The materials before the Court are as follows:

    An application for leave to appeal dated 23 April 2026, attaching a draft notice of appeal;

    An affidavit of the Applicant dated 23 April 2026;

    Written submissions of the Respondent dated 24 July 2026.

background

5    Applicant brings two proceedings against Respondent (Aug 2024, May 2025): The Applicant was employed by the Respondent as a casual youth worker from October 2023 until April 2025, when his employment was terminated (J [1]). The Applicant has brought two proceedings against the Respondent under the Fair Work Act:

    On 9 August 2024, the Applicant filed an application asserting that the Respondent engaged in adverse action, discrimination and bullying and made defamatory statements against him (Federal Court proceedings WAD221/2024) (J [2]).

    On 30 May 2025, the Applicant filed another application, 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 (Federal Court proceedings WAD184/2025) (J [3]).

6    Applicant’s summary judgment application in WAD221/2024 dismissed (Jun 2025): On 12 June 2025, the primary judge dismissed an application brought by the Applicant in proceeding WAD221/2024 for judgment on alleged admissions under r 22.07 of the Rules: see Akibou Yacouba v Key Assets The Children’s Services Provider (Australia) Limited [2025] FCA 614 (Yacouba (No 1)) (J [4]).

7    Primary judge consolidates WAD221/2024 and WAD184/2025 (Aug 2025): On 10 July 2025, the Respondent’s solicitor proposed (among other things) that the two proceedings be consolidated. The Applicant informed the Court he did not want the matters to be heard together at one case management hearing. On 11 July 2025, a case management hearing was listed in each matter for 7 August 2025, and the parties were informed of these listings (J [5]-[7]).

8    On 7 August 2025, the primary judge held a case management hearing. The Applicant did not appear. The primary judge ordered (among other things) that proceedings WAD221/2024 and WAD184/2025 be consolidated in one proceeding, and published reasons for that order: Akibou Yacouba v Key Assets The Children’s Services Provider (Australia) Limited (No 2) [2025] FCA 928 (Yacouba (No 2)) (J [8]).

9    Applicant applies for consolidation orders to be set aside (Jan 2026): On 27 January 2026, the Applicant filed an interlocutory application, seeking an order that the order consolidating the two proceedings be set aside under r 39.05 of the Rules (which provides for setting aside orders made in the absence of a party). That application was supported by an affidavit of the Applicant dated 27 January 2026 (the January 2026 affidavit) (J [9]).

10    Primary judge dismisses the application (Apr 2026): On 9 April 2026, the primary judge made orders (relevantly):

    dismissing the application to set aside the orders consolidating the Applicant’s two proceedings (Order 1);

    ordering that the Applicant’s January 2026 affidavit be removed from the Court file, pursuant to rr 1.32, 1.40 and 6.01 of the Rules, and may be re-filed on the condition that paras 27-33 are redacted or otherwise struck out (Order 2); and

    restraining the Applicant until further order from, directly or indirectly, communicating by any means in relation to this proceeding with any person employed or otherwise engaged by or on behalf of the Respondent, including 12 named persons (Order 3).

11    Dismissing the application to set aside the consolidation order: The primary judge’s reasons for dismissing the application to set aside the previous consolidation order were as follows:

(a)    The primary judge set out the general principles applicable to r 39.05 (J [11]). These principles included: an application under r 39.05 is not an appeal; and, when 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.

(b)    The primary judge found that the Applicant was not deprived of an 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 had informed the Court that he preferred for the proceedings to progress separately, and his preference was taken into account (see Yacouba (No 2) at [6]). He had not provided a reasonable explanation or justification for his non-attendance on 7 August. He relied on his lodging an application to set aside the orders made in Yacouba (No 1) dismissing his application for judgment on admissions, and a registrar’s decision to reject its filing, as justification for him, in effect, ignoring the hearing on 7 August 2025. However, the registrar rejected the lodgment for filing on 4 July 2025, so the timing of this rejection did not affect or excuse the Applicant’s non-attendance at the 7 August 2025 hearing (J [17]).

(c)    The Applicant continued to assert that Yacouba (No 1) was wrong and that it involved impropriety on the part of others. The primary judge found that the allegations of impropriety were without any evidentiary foundation, and did not support setting aside the consolidation order. The decision in Yacouba (No 1) had not been set aside or overturned, so the fact that the Applicant considered that this decision was incorrect did not undermine the veracity of the consolidation order (J [18]).

(d)    The Applicant contended that the two proceedings should be heard separately because they were at different stages and raised distinct issues. The primary judge held that the stages of the two proceedings could be readily aligned (and that was the purpose of the programming orders made on 7 August 2025), and that, even if there were distinct issues, the two proceedings involved the same parties and overlapping allegations (J [19]-[22]). The primary judge maintained the views explained in Yacouba (No 2) that the two proceedings should be consolidated. Her Honour took into account the matters now raised by the Applicant, but found that the Applicant had not explained why hearing the two matters without consolidation would be a better means of achieving a just outcome, that would justify setting aside the consolidation orders. To the contrary, the primary judge considered that consolidation with one set of pleadings, one set of disclosed documents, and one set of witness statements and submissions was undoubtedly the better way for all of the complaints brought by the Applicant arising out of his employment to be determined (J [23]-[24]).

12    These reasons disposed of the Applicant’s interlocutory application. The primary judge then dealt with two further matters.

13    Removing the January 2026 affidavit from the Court file: First, the primary judge ordered that the Applicant’s January 2026 affidavit must be removed from the Court file, and may be re-filed on the condition that the offending paragraphs are redacted or otherwise struck out. The primary judge informed the Applicant at the 9 April 2026 hearing that specified paragraphs of the Applicant’s January 2026 affidavit were scandalous, vexatious and irrelevant. Those paragraphs made allegations, unsupported by evidence, of a serious nature alleging dishonesty and fraud on the part of certain named persons. These serious allegations appeared to be no more than opinions held by the Applicant without any underlying objective or independent evidence (J [27]). The primary judge made similar orders in Yacouba (No 1) at [39]-[41] about previous affidavit material from the Applicant.

14    Restraining the Applicant communicating with Respondent’s employees: Second, the primary judge made orders restraining the Applicant until further order from communicating directly with employees of the Respondent.

(a)    The primary judge stated that the Applicant had 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 was legally represented, there was no reason for the Applicant to be communicating directly or indirectly with the Respondent’s employees. The Respondent’s lawyer advises the Respondent and its employees of the Applicant’s position on the proceedings as required. The Respondent described these communications as “'persistent, unsolicited, unwelcome and often intimidating”, and stated that it caused the individuals who received these communications discomfort and stress. In the preceding week, a list of approximately 26 of the Respondent’s representatives had received over 15 emails from the Applicant (J [30]).

(b)    The primary judge rejected the Applicant’s argument that these communications were required in the interests of transparency and justice. Her Honour held that inappropriate communications of this nature were 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 Court Act (J [31], referring to Murdock v Virgin Australia Airlines Pty Ltd [2022] FCA 1074 at [30] (Burley J) and Ogbonna v Qantas Airways Ltd [No 4] [2023] WASC 21 at [78]-[87] (Tottle J)).

(c)    The primary judge stated that for the Court to permit this course to continue bore the risk of bringing proceedings before the Court and the administration of justice into disrepute. These communications also had the effect of distracting from the real issues between the parties and so deferring the resolution of any genuine claims that a party might have (J [32]).

15    Application for leave (Apr 2026): On 23 April 2026, the Applicant applied for leave to appeal against the primary judge’s decision. This application has five grounds:

1.    The primary judge erred in law and/or in the exercise of discretion in dismissing the Appellant’s application to deconsolidate proceedings WAD 221 of 2024 and WAD 184 of 2025, which are legally and procedurally distinct matters (including an appellate and contempt proceeding and a general protections dismissal claim commenced under different statutory provisions and rules), thereby altering the prescribed procedural framework, failing to consider that the matters ought instead to have been heard together pursuant to r 30.11(d) rather than consolidated under r 30.11(c) of the Federal Court Rules 2011 (Cth), and thereby occasioning procedural unfairness and prejudice to the Appellant resulting in an unjust outcome.

2.    The primary judge erred in law and/or fact by failing to afford the Appellant procedural fairness and to properly consider the absence of any evidentiary response from the Respondent, who filed no counter-affidavit, adduced no evidence, and failed to engage with the application, thereby failing to draw appropriate inferences in accordance with Jones v Dunkel and Browne v Dunn, and to recognise that the unchallenged evidence established a sufficient basis for determination in the Appellant’s favour (see Qantas Airways Ltd v Gama), and further failed to recognise that the Appellant had filed an Application for Leave to Appeal (Lodgment ID: 1647191) on 2 April 2026 seeking to appeal her Honour’s decision of 12 June 2025, resulting in an erroneous and unfair determination and a denial of a fair hearing.

3.    The primary judge erred in law in ordering, at Order 2 made on 9 April 2026, that the Applicant’s affidavit filed on 27 January 2026 be uplifted from the Court file pursuant to rr 1.32, 1.40 and 6.01 of the Federal Court Rules 2011 (Cth), notwithstanding that the affidavit contained material and relevant evidence, including matters said to disclose fraud upon the Court, and was not scandalous, vexatious or oppressive, thereby preventing the Applicant from relying on relevant evidence and failing to apply the correct principles (see Porter v Australian Broadcasting Corporation at [47]–[51] and Legal Services and Complaints Committee v Lawson at [20]–[22]), resulting in procedural unfairness and an unjust outcome.

4.    The primary judge erred in law in imposing a communication restraint by making Order 3 on 9 April 2026, restraining the Applicant, until further order, from directly or indirectly communicating by any means in relation to the proceeding to certain persons, which constitutes an impermissible departure from the principle of open justice by restricting transparency and public scrutiny of the proceedings, contrary to the rationale articulated in Australian Broadcasting Corporation v Parish at 42,191 that justice must be open to public observation to ensure fairness and accountability.

5.    The primary judge erred in law and/or in the exercise of discretion in maintaining the consolidation of proceedings notwithstanding that the Appellant had succeeded in WAD 221 of 2024 and filed an Application for Leave to Appeal, together with a contempt application against the Respondent and its solicitor, the service of which established a factual basis for summary judgment against Key Assets Australia on the basis of admissions, thereby rendering consolidation untenable and occasioning procedural unfairness, and further erred by failing to provide adequate reasons for the decision, contrary to the requirement that judicial decisions be reasoned to permit scrutiny for independence, impartiality, principle and logic, and to facilitate the exercise of appellate rights (see Wainohu v New South Wales at [94]).

16    Procedure for determining the application: This matter was allocated to me in late May 2026. On 15 June 2026, my chambers emailed the Applicant and the Respondent’s lawyer stating that I proposed to deal with the application on the papers. The Applicant’s affidavit in support of the application for leave is in the nature of submissions, annexing the documents referred to. The email from my chambers stated that the Respondent was to file written submissions of no more than 10 pages by Friday 3 July 2026, and the Applicant was to file written submissions in reply of no more than 3 pages by 10 July 2026. The Respondent asked to be given until 24 July 2026 to file its submissions, and filed written submissions on that date. The Applicant was given until 31 July 2026 to file written submissions in reply, but has not filed any further documents.

analysis

Application for leave to appeal

17    The Applicant correctly recognises that he needs leave to appeal against the judgment of the primary judge. The orders made by the primary judge were interlocutory in nature, because her Honour did not determine the merits of the underlying dispute in that court. That means an appeal from those orders can only be brought by leave: Federal Court Act s 24(1A).

18    Leave to appeal – general principles: The principles applicable to an application for leave from an interlocutory judgment can be summarised as follows:

    Two criteria should be addressed in an application for leave to appeal from an interlocutory judgment: (1) whether the judgment was attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) on the assumption that the judgment is wrong, whether substantial injustice would result if leave were refused.

    However, each case must be considered on its merits, and the above test should not be applied as if it were some hard and fast rule.

    It is important to consider the practical operation or effect of the interlocutory order from which leave to appeal is sought. Leave should readily be given if the practical effect of the interlocutory order is to determine the proceeding or an important issue in the proceeding.

See Shepherd v Watt [2022] FCAFC 78 at [54]-[56] (the Court); Dimitrovski v Boland [2023] FCAFC 86 at [29] (the Court); Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 (the Court).

19    In considering whether there is sufficient doubt (factor (1) above), particular caution is exercised by appellate courts in reviewing decisions of primary judges relating to practice and procedure: Kitchen v Director of Professional Services Review [2023] FCAFC 160 at [31] (the Court); Harper v Gold Coast Pistol Club Limited [2023] FCAFC 165 at [25]-[26] (Logan J, with Meagher and McEvoy JJ agreeing). It is not sufficient that the appellate court might have exercised the discretion differently; the Applicant must demonstrate an error of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ); namely, that the primary judge acted upon a wrong principle, mistook the facts, failed to take into account a material consideration or was guided by extraneous or irrelevant matters, or that error can be inferred from the overall result: Shepherd v Watt at [57]-[58]; Kitchen at [30]. There is a strong presumption in favour of the correctness of the decision appealed from in a discretionary judgment, and the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong: Shepherd v Watt at [59], and the cases cited.

20    Position with self-represented litigants: The Applicant is self-represented in this application, as he was before the primary judge. A judge has a duty to ensure that a hearing is fair to all parties (that is, both applicants and respondents). If a party does not have a lawyer, the judge may tell them about the practices and procedures of the Court, as relevant, to try to ensure a fair hearing. However, the judge does not give legal or tactical advice to a party who does not have a lawyer, because the judge must be impartial. See generally NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court); Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court). Importantly, this duty is to ensure that the Court’s processes are fair: the Court must apply the law as it is, and cannot simply make orders to achieve a result that the Court thinks is “fair”.

21    The Applicant’s arguments can be considered in the light of these principles.

22    Consolidation of proceedings (Grounds 1, 2 and 5): Grounds 1, 2 and 5 of the application for leave to appeal concern the primary judge’s decision not to set aside the previous order for the consolidation of the two proceedings. These grounds are answered by two general points.

    First, the underlying decision to consolidate proceedings is pre-eminently a matter of practice and procedure. As noted, the Court exercises particular caution before intervening with decisions of this kind, and there is a strong presumption in favour of the correctness of the decision: see [19] above.

    Second, the Applicant was seeking to have the consolidation order set aside under r 39.05, after the Applicant failed to attend the hearing at which that order was made. As the primary judge explained, an application under r 39.05 is not an appeal, so it was not (and is not) sufficient for the Applicant merely to contend that the initial decision was incorrect. Rather, as the consolidation order was made in the Applicant’s absence, the questions for the primary judge were first, whether there was a proper explanation for the Applicant’s non-attendance; and second, whether the evidence disclosed a ground of sufficient merit to warrant setting aside the order: see [11](a) above.

23    As explained below, the Applicant’s arguments only go as far as contending that the initial decision to order the consolidation of proceedings was incorrect, and that the primary judge’s rejection of the Applicant’s explanation for his non-attendance was also incorrect. Those arguments do not suggest any error of principle of the kind that would warrant granting leave. In addition, there is no prejudice to the Applicant in permitting the two proceedings to be consolidated: see factor (2) for granting leave in [18] above. Indeed, the primary judge considered that the consolidation orders would assist both parties, including the Applicant (despite his opposition to this course): Yacouba (No 2) at [7]; J [23].

24    Ground 1 simply seeks to re-litigate the issue of whether proceedings WAD221/2024 and WAD184/2025 should be consolidated. The primary judge gave reasons for her initial decision in Yacouba (No 2) at [4]-[8], and expanded on that reasoning in J [19]-[24] (summarised in [11](d) above). The Applicant’s arguments do not suggest any error of principle, or indeed any error at all. The Applicant asserts in his affidavit that consolidating the proceedings relieved the Respondent of the need to file an affidavit to matters requiring evidentiary response in proceeding WAD184 of 2025. However, consolidating proceedings, in itself, does not alter the nature of the evidentiary issues raised in either proceeding, but simply provides for evidentiary and other issues to be dealt with together, rather than separately.

25    Ground 2 contains two arguments, neither of which goes close to demonstrating any error of principle by the primary judge.

    The first is that the primary judge failed to afford the Applicant procedural fairness and failed to consider the absence of any evidentiary response from the Respondent. There is no basis for arguing that the Applicant was denied procedural fairness on the re-instatement application. And there was no requirement for the Respondent to provide evidence in response: it was for the Applicant to establish a sufficient reason to set aside the previous order, and he did not do so.

    The second argument is that the primary judge failed to recognise that the Applicant had filed an application for leave to appeal against Yacouba (No 1). However, the primary judge did recognise that the Applicant had filed this application (see J [17], summarised in [11](b) above). In any event, this application for leave to appeal had not been accepted for filing, so the bare fact of that (unsuccessful) application did not provide any reason for setting aside the consolidation order.

26    Ground 5 refers again to the Applicant seeking summary judgment on the basis of admissions, which was rejected by the trial judge in Yacouba (No 1). And again, the fact that the Applicant had filed an (unsuccessful) application for leave to appeal against this decision did not provide a basis for setting aside the consolidation order. The Applicant also contends that the primary judge did not provide adequate reasons for “the decision”. That argument is without substance.

    The primary judge gave comprehensive reasons for rejecting the Applicant’s summary judgment application in Yacouba (No 1) at [31]-[35], which were: the Respondent had in fact served a notice of dispute within the time period permitted (which operates on service, not filing); the Applicant’s notice to admit was objectionable, because the key paragraphs contained rolled-up statements of fact and law; and the notice to admit was served at a time when the Respondent was about to file its pleaded defence.

    The primary judge also gave careful reasons for dismissing the Applicant’s application to set aside the consolidation order, and addressed specifically in J [17] why the Applicant’s leave to appeal did not justify setting aside the order.

27    Removal of affidavit from Court file (Ground 3): Ground 3 challenges the primary judge’s assessment that the specified paragraphs in the Applicant’s January 2026 affidavit were scandalous, vexatious and irrelevant, and contends that those paragraphs contained relevant evidence. The Applicant’s arguments must be rejected.

28    The content of paras 27-33 of the January 2026 affidavit are described in J [27] (and that description is confirmed by a reading of the affidavit). Plainly, that content is not relevant to whether the two proceedings should be consolidated, so the Applicant’s contention that he was prevented from relying on relevant evidence must be rejected. Her Honour’s further finding that this content is also scandalous and vexatious does not raise any point of principle. There is not sufficient doubt to warrant the grant of leave, nor does the Applicant suffer any substantial injustice if leave is refused: see the test for granting leave to appeal in [18] above.

29    The Applicant then contends that the primary judge failed to apply the principles set out in Porter v Australian Broadcasting Corporation [2021] FCA 863 at [47]-[51] and Legal Services and Complaints Committee v Lawson [2024] WASC 158 at [20]-[22]. However, those cases do not assist the Applicant, and do not suggest any error by the primary judge.

    In Porter, the parties proposed consent orders that would settle defamation proceedings and sought an order that an unredacted Defence and unredacted Reply be removed from the Court file: Porter at [1]. Porter at [47]-[51] (relied on by the Applicant) merely sets out the arguments of the intervening parties on why that order should not be made. However, Jagot J did make the order sought, on being satisfied that it was necessary to prevent prejudice to the proper administration of justice: Porter at [110]-[111].

    Lawson at [20]-[22] was dealing with the very different issue of whether a legal practitioner’s name should be removed from the roll of practitioners.

30    Restraining communication with Respondent’s employees (Ground 4): Ground 4 contends that the primary judge’s order preventing the Applicant from communicating directly or indirectly with the Respondent’s employees constituted an impermissible departure from the principle of open justice, by restricting transparency and public scrutiny of proceedings. That argument must be rejected.

    It is highly doubtful that this order has any effect at all on transparency and public scrutiny of these proceedings: the Applicant may continue to make public comments about the case, in the usual way and subject to ordinary limits (such as the law of defamation). The order merely prevents the Applicant from making communications to the employees of a party, and instead requires that any communications be made directly to the party’s lawyer.

    As the primary judge observed, Burley J made a similar order in Murdock. His Honour held that it is “antithetical to the overarching purpose for a party to authorise the sending of obscene, offensive or threating communications to an opposing party” (or, I would add, sending such communications): Murdock at [30]. Sections 23 and 37M of the Federal Court Act confer power on the Court to regulate communications between the parties so as to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Murdock at [28]. This reasoning in Murdock was applied by Tottle J in Ogbonna [No 4] at [78]-[87].

31    Accordingly, there is not sufficient doubt about the correctness of this order to warrant granting leave to appeal. In addition, there is no relevant prejudice to the Applicant arising from this order: he is still able to communicate with the Respondent, as required for the purposes of the proceedings, through the Respondent’s lawyer.

32    Conclusion – leave refused: For these reasons, the application for leave to appeal against the decision of the primary judge is refused.

Other applications

33    The application for leave also contains a number of “other applications”:

    The Applicant requested that this application be determined on the papers. I have given effect to this request, consistently with Rules r 35.18.

    The Applicant also requested that Order 4 made by the primary judge (which extended the time by which the Applicant was to file and serve an amended (consolidated) statement of claim to 24 April 2026) be stayed until this application for leave was determined. I have not dealt with this application separately from the application for leave, so the Applicant has obtained a de facto stay of that order.

    The Applicant also seeks an order that any requirement for the Applicant to file a consolidated pleading be stayed pending the determination of the complaint presently before the Legal Practice Board of Western Australia concerning alleged dishonest conduct by the Respondent’s solicitor. That type of order is not properly dealt with in this application for leave to appeal, and there is nothing in the material before me to support the Applicant’s allegations. This application is refused.

Costs

34    The final matter is that the Respondent seek its costs of this application.

35    Fair Work Act s 570(2): The Court’s power to award costs in proceedings under the Fair Work Act is limited by s 570 of that Act, which provides:

570 Costs only if proceedings instituted vexatiously etc.

(1)     A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2)     The party may be ordered to pay the costs only if:

(a)     the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)     the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

…

36    Costs under s 570(2) – general principles: In United Firefighters’ Union of Australia v Fire Rescue Victoria [2025] FCAFC 7 (UFU v Fire Rescue), the Full Court made the following observations about when proceedings are instituted “vexatiously or without reasonable cause” within s 570(2)(a) of the Fair Work Act:

    It is well established that a want of reasonable cause cannot be established merely because an applicant’s case does not succeed. In assessing whether a proceeding has been instituted without reasonable cause, the relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted: UFU v Fire Rescue at [21].

    One way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success: UFU v Fire Rescue at [22].

37    Although the Court retains a discretion whether to award costs when s 570(2) does apply, the circumstances showing that a proceeding was instituted without reasonable cause may also provide a substantial basis for requiring the payment of costs: Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants (No 2) [2022] FCA 899 at [24] (Goodman J) (appeal dismissed: Patial v Kailash Lawyers Pty Ltd t/as Kailash Lawyers and Consultants [2023] FCAFC 155 at [41]-[42] (the Court)); see also Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102 at [30]-[33] (the Court).

38    The purpose or policy of s 570 of the Fair Work Act is to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting those parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause. It follows from the protection offered by s 570(2) that a person will rarely be ordered to pay the costs of a proceeding. But it is not necessary to prove that there are exceptional circumstances warranting the making of an order: Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 at [7] (points (1) and (2)) (the Court); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2015] FCAFC 97; (2015) 230 FCR 337 at [14]-[17] (the Court); Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [10]-[11] (the Court).

39    Respondent’s arguments: The Respondent submits that costs are payable under either or both of s 570(2)(a) and (b) of the Fair Work Act.

40    The Respondent submits that the application for leave was instituted “vexatiously or without reasonable cause” within s 570(2)(a) for the following reasons:

(a)    the Application is deficient, defective and arguably out of time, as many of the orders the subject of appeal took effect in 2025; the Applicant was given every reasonable opportunity to present evidence and his arguments at the time previous decisions and orders were made;

(b)    the decision(s) of the Primary Judge was open and available;

(c)    leave was needed to proceed with the appeal;

(d)    it is well settled that appellate courts are reluctant to overturn interlocutory discretionary orders, including costs orders, made by single judges; and

(e)    a discretionary value judgment is not to be overturned on appeal merely because those exercising the appellate jurisdiction might, if called to make that value judgment in the original jurisdiction, have reached a different decision.

41    The Respondent submits that this application for leave was an unreasonable act within the meaning of s 570(2)(b) for the following reasons:

(1)    the Applicant is essentially seeking to agitate issues that have already been determined on numerous previous occasions;

(2)    the Applicant has failed to properly articulate any error; and

(3)    there is no explanation as to why the Applicant did not pursue an appeal proximate to the “substantive” issues held with respect to his initial summary judgment application (12 June 2025) and the consolidation orders (7 August 2025).

42    Costs should be awarded: There should be an order for costs, largely for the reasons advanced by the Respondent in their arguments under s 570(2)(b) (set out in [41] above). That said, the Applicant’s failure to properly articulate any error (point (2) above, relied on to demonstrate an unreasonable act) would incorporate many of the Respondent’s arguments as to why the proceedings have been instituted without reasonable cause (particularly points (b), (e) and (f) in [40] above). That is, although the concepts of “vexatiously or without reasonable cause” and an “unreasonable act” in s 570(2)(a) and (b) are distinct, the complete lack of merit in the Applicant’s arguments adds to the unreasonableness of him bringing this application for leave to appeal.

43    Zirk-Sadowski v University of New South Wales (No 4) [2024] FCA 813 provides some guidance on the proper exercise of discretion in this case. Anderson J ordered costs under s 570(2) against an unsuccessful applicant in that case for the following reasons:

(1)    The application failed to disclose any material facts or principles of law which were capable of demonstrating any jurisdictional error in the Fair Work Commission decisions the applicant sought to review. The applicant largely re-agitated the same points that had already been dispatched twice before by the Commission. Many of the issues raised by the applicant were unsupported allegations which were unrelated to the underlying application: Zirk-Sadowski (No 4) at [11]. Although the applicant might have sincerely believed that his arguments had some basis, the relevant question is one of objective merit; namely whether there were facts apparent to the party at the time of instituting the proceeding that, viewed objectively, would demonstrate that there were no reasonable prospects of success: Zirk-Sadowski (No 4) at [12].

(2)    The Commission’s decisions were interlocutory and involved the exercise of broad discretions. The applicant faced a higher hurdle in establishing jurisdictional error in decisions of such kind, a hurdle which the application fell well short of. As outlined above, nothing disclosed in the application was capable of demonstrating any jurisdictional error in the Commission’s decisions: Zirk-Sadowski (No 4) at [13].

(3)    The defects in the application were previously brought to the applicant’s attention, but he did not take any steps to rectify those defects: Zirk-Sadowski (No 4) at [14]-[19].

(4)    Even allowing for a degree of latitude given that the applicant was self-represented, the reasons outlined above nevertheless justified a costs order in favour of the respondent. The fact that the applicant was self-represented was not a circumstance which relieved an unsuccessful self-represented litigant from an obligation to pay costs if they were otherwise justified: Zirk-Sadowski (No 4) at [22], citing Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 at [12] (Buchanan J).

This costs order was upheld on appeal: Zirk-Sadowski v University of New South Wales [2025] FCAFC 64 at [101] (Snaden J, with Wheelahan and McElwaine JJ agreeing).

44    It is true that Zirk-Sadowski was proceedings for judicial review, and therefore the issue in that case (unlike here) was whether the Commission’s decision contained jurisdictional error. Even so, the factors set out above have strong resonances with the situation in this case.

    First, the Applicant in this application for leave to appeal has simply re-agitated points that were considered fully by the primary judge when deciding Yacouba (No 2) (albeit in the Applicant’s absence), and considered by her Honour again when deciding the application to set aside the consolidation order. The defects in the Applicant’s arguments were identified clearly by her Honour (cf factors (1) and (3) above).

    Second, the primary judge was exercising an interlocutory discretionary power in deciding whether to consolidate the two proceedings. The Applicant therefore faced a high hurdle in demonstrating any error in that decision, and prejudice resulting from that decision, that would warrant granting leave. None of the arguments raised by the Applicant on this application for leave to appeal came close to demonstrating an error that might justify granting leave (factor (2) above).

    Third, even allowing some latitude to a self-represented litigant, the circumstances justify making a costs order against the Applicant (factor (4) above).

conclusion

45    For these reasons, the application for leave to appeal is dismissed. The Applicant is to pay the Respondent’s costs of this application for leave to appeal.

Associate:

Dated:    16 September 2026