Ogbonna v Link Workforce Pty Ltd

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

1. These reasons relate to orders the Court made after a case management hearing held on 12 March 2026.

The reasons for orders re-introducing the general protections claim

1. The applicant originally made claims under the general protections provisions of the Fair Work Act 2009 (Cth) and for defamation in an originating process and statement of claim filed on 20 May 2022. On 20 September 2022 a judge of the Federal Circuit and Family Court of Australia (Division 2) made a sequestration order against the estate of the applicant and a trustee in bankruptcy was appointed. By operation of s 60(2) of the Bankruptcy Act 1966 (Cth) the proceeding was stayed until the trustee made an election, in writing, to prosecute or discontinue the proceeding.
2. The applicant wanted to appeal from the sequestration order, however, due to a vexatious proceedings order that had been made against him he required leave to commence an appeal. The applicant applied for and was granted leave to appeal: Ogbonna, in the matter of Ogbonna [2023] FCA 1334. In the meantime, by letter to the Court dated 2 November 2022, the applicant's trustee in bankruptcy made an election under s 60(2) of the Bankruptcy Act to discontinue the general protections claim. Otherwise, the trustee was of the view that the applicant was entitled to continue and prosecute his defamation claim under s 60(4) of the Bankruptcy Act. Thereafter, on 15 August 2023, the respondent filed a defence to the applicant's defamation claim. Before the defence was filed there was an unsuccessful attempt to mediate a resolution to the proceeding. The applicant also unsuccessfully applied for judgment on the basis of admissions: Ogbonna v Link Workforce Pty Ltd [2023] FCA 633. An application for leave to appeal from the orders dismissing that application was dismissed: Ogbonna v Link Workforce Pty Ltd [2024] FCA 119 (Derrington J). On 29 November 2023 the case management hearing in this proceeding was adjourned to a date to be fixed to await the outcome of the applicant's appeal against the sequestration order. Ultimately, although heard in his absence, the applicant's appeal was allowed on 12 September 2025: Ogbonna v CTI Logistics Ltd (No 7) [2025] FCA 1125. On 3 December 2025 orders were made setting aside the sequestration order: Ogbonna v CTI Logistics (No 8) [2025] FCA 1525. As a consequence, the case management hearing was re-listed on 12 March 2026.
3. Although the sequestration order was set aside, the applicant's trustee in bankruptcy was duly appointed and had authority to elect to discontinue the general protections part of the proceeding under s 60(2) of the Bankruptcy Act. While that discontinuance was not in accordance with r 26.12 of the Federal Court Rules 2011 (Cth), it was an effective discontinuance of that part of the proceeding by operation of s 60(2) of the Bankruptcy Act and the trustee's written election.
4. The effect of a discontinuance is to bring a proceeding or part of a proceeding to an end without any substantive or procedural adjudication by the Court of the claims made in the proceeding. Where leave is required to discontinue the Court may, in an appropriate case, condition any leave to discontinue on terms which limit the proceedings which may be commenced in the future by the party seeking to discontinue against other parties to the proceedings to be discontinued: Frigger v Trenfield (Application to Discontinue) [2025] FCA 640 at [34], [53] (Colvin J). Otherwise, subject to s 37M of the Federal Court of Australia Act 1976 (Cth) and the applicable principles that govern the grant of leave to amend pleadings, part of a claim that has been discontinued or abandoned at an earlier stage in a proceeding may be re-introduced at a later stage of the same proceeding: e.g., Hightime Investments Pty Ltd v Lungan (No 2) [2010] WASC 296 at [52], [65] (Beech J); Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [89]- [103]; [111]-[112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
5. Given the reasons for and the order made on 29 November 2023 and that discontinuance of the general protections claim was an act of the applicant's trustee in bankruptcy, the reason for discontinuance and for re-introduction is obvious and explained by the circumstances of this case. There is also no evident prejudice to the respondent or the public interest if the general protections claim were re-introduced. The respondent has been aware of the general protections claims from the inception of the proceeding. While the respondent has filed a defence to the defamation part of the applicant's claims, in substance, no steps have been taken in the proceedings (and, therefore, minimal costs would have been incurred) since November 2023. As no relevant limitation period has expired the prejudice to the applicant of refusing re-introduction is also minimal except that forcing him to commence new and separate proceedings would result in additional costs, delay and would be inefficient and contrary to the overarching objectives of the civil practice and procedure provisions described in s 37M of the Federal Court Act. For these reasons it is appropriate to make an order, in effect, placing the applicant in the same position in which he was before the sequestration order was made on 22 September 2022. Therefore, an order will be made granting the applicant leave to amend his claim to re-introduce the discontinued general protections claim and for his statement of claim to stand as his 'amended' statement of claim in the proceeding.
6. While it is appropriate to grant the applicant leave to re-introduce the general protections claim, in the circumstances, it also appropriate, in effect, to place the respondent in the same position it was in before the sequestration order was made. Therefore, the grant of leave to re-introduce and 'amend' the applicant's statement of claim should not prejudice the respondent's ability to apply to strike-out or dismiss all or part of the applicant's originating process or statement of claim should it want to make such an application.

The reasons for reserving costs and requiring the applicant to show cause as to why the proceeding should not be stayed pending an undertaking regarding his conduct

1. Section 37M(1) of the Federal Court Act 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 overarching purpose includes as objectives the efficient use of judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court's overall caseload, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute: s 37M(2). Section 37N(1) provides that parties to a civil proceeding before the Court must conduct the proceeding in a way that is consistent with the overarching purpose.
2. The Chief Justice recently issued the Litigants in Person Practice Note (GPN-LIP). It contains helpful guidance, in plain English, for litigants in person. Amongst other things, GPN-LIP explains the effect of s 37M and s 37N of the Federal Court Act and describes what a litigant must do if he or she brings a case to the Court. Relevantly, GPN-LIP provides (emphasis original):

4.7 You must act respectfully and honestly when you deal with Judges, Registrars, Court staff and lawyers for other parties:

(a) in all your written documents, emails and phone calls; and

(b) when you meet with people in the Court or elsewhere.

4.8 You must not shout, swear, threaten or be rude.

4.9 You must only contact the Court when you have to or when your contact relates directly to your case.

4.10 All your emails or letters to the Court after you have started your case must be copied to the lawyers for the other parties. You must not send multiple similar emails to the Court or try to argue your case in emails. The time and place for presenting your case is during Court hearings or in documents that you have been told by the Court to provide.

4.11 You must do what the Court orders you to do. You must file any document by the time the Court has fixed in its orders for filing that document. If you do not obey the Court's orders, the Court might not allow you to go on with your case.

4.12 You must attend all Court hearings at the right place and the right time. It is up to you to make sure you know these things. If you do not attend a hearing at the right place and time, you might not be allowed to go on with your case.

1. For the reasons that follow, the applicant's conduct at the case management hearing on 12 March 2026 fell short of these standards and had the effect of rendering that hearing inefficient and prolonged.
2. The case management hearing was listed for 9.15am (AWST) on 12 March 2026. When the matter was called for hearing the applicant was not in attendance. After the Court was informed the applicant was in the building, the matter was adjourned and resumed several minutes after the listing time. Upon resumption the applicant proffered no apology to the Court or the respondent's counsel for delaying the commencement of the hearing. Indeed, at one point in the hearing he asserted it was the presiding judge's fault, in substance, for dismissing his application for summary judgment in 2023.
3. During the hearing, it emerged that the applicant sought an adjournment of the case management hearing for four weeks because he intended to make an application to the High Court. Although not entirely clear, the applicant evidently intends making some form of application for judicial review of the order dismissing his application for leave to appeal from the order dismissing his application for summary judgment. As no application had been made to the High Court and the nature of any such application or the manner in which it could have any bearing on this proceeding was not identified, that application for an adjournment was refused in favour of the orders regularising the proceeding referred to earlier in these reasons.
4. Otherwise, in the course of addressing the Court on his application for an adjournment and other matters raised during the hearing, the applicant became agitated and aggressive and made numerous baseless and unfounded assertions of bias, racism, fraud and crimes directed at the presiding judge, another judge of the Court and a Registrar of the Court. It is unnecessary to re-publish and rehearse precisely what the applicant said during the hearing. His assertions are recorded in the transcript of the hearing. These assertions were objectively disrespectful, scandalous, abusive and insulting. The applicant also made threats to the presiding judge to the effect that he would distribute certain of his assertions to members of Parliament and national integrity bodies and threatened to take steps to have the presiding judge removed from judicial office and prosecuted for unspecified crimes. The applicant also repeatedly interrupted and talked over the presiding judge making it virtually impossible to conduct the hearing with any degree of decorum.
5. When the presiding judge was able to call upon the respondent to make submissions, counsel for the respondent started to make an oral application to dismiss the proceeding. At that point the applicant stood up, interrupted counsel and approached him in a physically and verbally threatening and intimidating manner. The applicant pointed at counsel and said that he would bring a case of fraud (against counsel). He threatened to bring an application for contempt of court (against counsel) and take steps, in effect, to have counsel's legal practicing certificate revoked. These threats were also all baseless and made without any foundation. After the applicant talked over the presiding judge multiple times, the presiding judge was eventually able to ask the applicant to take his seat, which he did, and the hearing was able to be completed without the necessity to call upon Court security to intervene.
6. Epictetus, the Roman stoic philosopher, counselled to keep in mind that what injures you is not people who are rude and aggressive but your opinion or judgment that they are injuring you. Thus, while baseless insults and threats of the kind the applicant delivered may be water off the proverbial duck's back for the individual judicial officer or lawyer in question, preservation of public confidence in the due and proper administration of justice demands that interference with that administration and affronts to the dignity of the Court do not go unanswered or ignored. As Lieutenant-General Morrison observed, albeit in a different institutional context: 'The standard you walk past is the standard you accept.' Any workplace should be a respectful and safe environment, but it is fundamental to the proper administration of justice that any person (be that person judge, registrar, court staff, litigant, lawyer, witness or member of the public) is able to attend court and participate or observe court proceedings without fear of physical harm, verbal abuse or insult, intimidation or threats of any kind. Any lower standard or expectation is unacceptable.
7. The Court has power to control the exercise of its jurisdiction. The Court has power to act on its own motion and make any order considered appropriate in the interests of justice: r 1.40, r 1.32 of the Rules. The Court also has power to make such orders of such kinds, including interlocutory orders, as the Court thinks appropriate: s 23 of the Federal Court Act. The Court also has power under s 37P to give directions about the practice and procedure to be followed in relation to the proceeding or any part of the proceeding.
8. Having regard to the preceding matters, I am contemplating exercising the power of the Court to make an order of my own motion that would result in a stay of the proceeding unless and until the applicant gives a written undertaking that he has read GPN-LIP and will observe the standards of conduct described in that Practice Note. The applicant will have an opportunity to make submissions and file affidavit material to show cause as to why such an order should not be made. While no provision will be made for the respondent to make submissions or file affidavit material, it may, of course, choose to do so.
9. The principal reason for contemplating making such an order is that the Court cannot accept the standard of conduct exhibited at the case management hearing. Such conduct interferes with the due and proper administration of justice and if it were to continue would render it impossible or extremely difficult for the Court to accord both parties procedural fairness at trial and other future hearings. It will also prevent the Court from applying and exercising the powers conferred by the civil practice and procedure provisions in the way that best promotes the overarching purpose of those provisions.
10. Due to the delayed start, interruptions and long irrelevant diatribe, what should have been a routine case management hearing of about 15 minutes ran for approximately 45 minutes and was not able to be conducted in a manner in which both parties had a fair and reasonable opportunity to make oral submissions to the Court about the future case management of the proceeding. The applicant's conduct at the case management hearing, for the reasons already given, was not in compliance with his obligation under s 37N(1) to conduct the proceeding consistently with the overarching purpose of the civil practice and procedure provisions. In general, in exercising the discretion to award costs in a civil proceeding, the Court must take account of any failure to comply with that duty: s 37N(4). However, in the case of a general protections claim under the Fair Work Act, a party may only be ordered to pay costs incurred by another party to the proceedings, relevantly, if the Court is satisfied that the party instituted the proceeding vexatiously or without reasonable cause, or that the party's unreasonable act or omission caused the other party to incur the costs: s 570 of the Fair Work Act.
11. Where a party to a matter arising under the Fair Work Act 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. In those circumstances, the Court would be unable to sanction non-compliance with a party's duty under s 37N(1) through an adverse costs order. Therefore, the operation of s 570 of the Fair Work Act underscores the importance of resolving matters arising under that Act at a cost that is proportionate to the importance and complexity of the matters in dispute lest the inefficient and untimely disposal of such proceedings become an instrument of oppression and abuse.
12. Having regard to the foregoing matters, notwithstanding s 570 of the Fair Work Act, it is appropriate to reserve the costs of the case management hearing on 12 March 2026.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.