Background
Dr Benjamen Gussen brought proceedings principally against Swinburne University of Technology, alleging adverse action and discrimination under ss 340 and 351 of the Fair Work Act 2009 (Cth). He also sued the Commonwealth, represented by the Tertiary Education Quality and Standards Agency (TEQSA), the State of Victoria, the Victorian Legal Admissions Board and SEEK Ltd.
The claims against those respondents included alleged accessorial liability for Swinburne’s conduct under s 550, misfeasance in public office, declaratory relief and an asserted common-law right concerning “protected professional expression.” On 7 August 2026, the Court entered summary judgment for TEQSA, the State parties and SEEK. The respondents then sought their costs.
The Court’s Holding
Justice McElwaine ordered Dr Gussen to pay the costs of TEQSA, the State parties and SEEK, with the amount to be fixed as a lump sum by a Registrar. Although s 570 of the Fair Work Act generally restricts costs orders in Fair Work proceedings, the Court held that the exception for proceedings instituted without reasonable cause applied.
The claims against TEQSA and the Victorian Legal Admissions Board were temporally impossible as accessorial-liability claims: Dr Gussen had resigned from Swinburne before they could have acquired the alleged knowledge of, or involvement in, the asserted adverse action. The Court also relied on defects including lack of standing and jurisdiction, and the absence of facts capable of supporting misfeasance allegations. The claim against SEEK rested on the erroneous assertion that it owned or controlled OES Pty Ltd, despite SEEK having had no interest in that company after October 2021.
SEEK was not awarded indemnity costs. Its discontinuance letter reserved rights concerning costs but did not expressly warn that indemnity costs would be sought; given Dr Gussen’s self-represented status, that was insufficient to justify departure from ordinary costs.
Key Takeaways
- Section 570 does not prevent costs where a Fair Work proceeding was instituted without reasonable cause.
- Accessorial-liability allegations must plead facts showing the respondent’s knowing involvement at the relevant time.
- A factual premise contradicted by readily available corporate information can render a claim without reasonable cause.
Why It Matters
The decision illustrates that the Fair Work Act’s protective costs regime is not a shield for claims with fundamental factual or chronological defects. A claimant’s underlying grievance, or unresolved merits claims against another party, does not make a respondent-specific accessorial claim reasonably arguable.
It also shows the limits of costs warnings. A party seeking indemnity costs after inviting discontinuance should clearly foreshadow that specific consequence.