Background
Dr Benjamen Gussen, a former senior lecturer at Swinburne University of Technology, alleged that Swinburne took adverse action against him after he raised concerns about the academic standards of its online Bachelor of Laws program, delivered through Online Education Services Pty Ltd. His pleading asserted Fair Work Act claims against Swinburne and alleged that the Commonwealth, the Tertiary Education Quality and Standards Agency, the State of Victoria, the Victorian Legal Admissions Board, and SEEK Ltd were involved in Swinburne’s alleged contraventions.
Gussen also sought judicial review and mandamus concerning TEQSA’s and VLAB’s handling of his complaints, alleged misfeasance in public office, and proposed a new tort of “interference with protected professional expression.” The Commonwealth parties, State parties, and SEEK applied for summary judgment. Swinburne was not required to participate in those applications, and the Court did not decide the substantive claims against it.
The Court’s Holding
Justice McElwaine entered summary judgment for the Commonwealth, Victoria, VLAB, and SEEK because the claims against them had no reasonable prospect of success and could not be cured by amendment. TEQSA was removed as a separate party because it has no legal personality distinct from the Commonwealth, and the Commonwealth was renamed as represented by TEQSA.
The accessory-liability claims against the Commonwealth and State parties were defeated in part by timing: the relevant complaints to TEQSA and VLAB postdated the alleged adverse action, and the pleadings did not show their knowing participation in any Fair Work Act contravention. The judicial-review claims also failed because Gussen lacked the required special interest and the relevant legislation did not impose the asserted mandatory investigative or monitoring duties; the evidence further showed that TEQSA had referred his complaint for consideration in Swinburne’s re-registration assessment. The misfeasance allegations lacked specific facts identifying unlawful exercises of public power and the necessary state of mind, while the proposed professional-expression tort was unknown to Australian law and was not an incremental development of an existing cause of action.
The SEEK claim failed on distinct factual and legal grounds. Unchallenged evidence established that SEEK had ceased holding an indirect ownership interest in OES in October 2021 and thereafter did not control OES, contrary to the pleaded premise. The pleading also failed to allege facts capable of showing that SEEK knew the essential elements of Swinburne’s alleged adverse action or intentionally participated in it.
Key Takeaways
- Accessory liability under s 550 of the Fair Work Act requires actual knowledge of the essential facts and intentional participation in the primary contravention; regulatory inaction or a remote commercial connection is insufficient.
- Mandamus requires an unperformed public duty, not merely a statutory power or discretion, and a public complainant must establish standing through a private right or special legal interest.
- Serious allegations of misfeasance in public office must identify the responsible officers, the public power allegedly misused, and facts supporting the required knowledge, recklessness, or malice.
Why It Matters
The decision illustrates the Federal Court’s willingness to terminate legally and factually untenable claims at the summary-judgment stage, even while recognizing the care required when dealing with a self-represented litigant. It also distinguishes defects that affected the regulator claims from the separate evidentiary and pleading failures underlying the case against SEEK.
The judgment does not determine whether Swinburne itself took unlawful adverse action. Its immediate effect is confined to disposing of the claims against the Commonwealth, Victoria, VLAB, and SEEK, with consequential costs applications left to be heard.