Federal Court of Australia

Gussen v Swinburne University of Technology [2026] FCA 39

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant is granted an extension of time to apply for leave to appeal against the costs order (order 2) made by Justice McElwaine in proceeding VID250/2025 on 17 October 2025, but leave to appeal against that order is refused.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    In the underlying proceeding VID250/2025, the Applicant seeks various relief against the Respondent (Swinburne) under the Fair Work Act 2009 (Cth). At a case management hearing on 17 October 2025, the primary judge dismissed an interlocutory application brought by the Applicant which sought orders to prevent Swinburne from enforcing a costs order made against the Applicant by the Magistrates’ Court of Victoria. The primary judge ordered that the Applicant pay the costs of the interlocutory application (order 2).

2    The Applicant seeks an extension of time to seek leave to appeal from this interlocutory costs order. This application 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) and (b).

3    For the following reasons, I would grant the Applicant an extension of time, but refuse to grant leave to appeal.

4    Evidence and materials: The Applicant relies on an affidavit by himself sworn on 24 November 2025 (November 2025 affidavit), and written submissions of the same date. He filed supplementary submissions on 30 January 2026 in accordance with a direction from the Court, together with an affidavit attaching the materials from his 15 September 2025 application.

5    Application determined on papers: The Applicant in his application sought an oral hearing. However, my chambers indicated to the parties that I proposed to deal with the application without an oral hearing, because it appeared that there is no real issue of fact relevant to the determination of the matter, and that the legal arguments in relation to the matter could be dealt with adequately by written submissions: see Federal Court Act s 20A(2)(c). Swinburne indicated in correspondence with chambers that it did not wish to file any written submissions, and agreed that the matter could be dealt with on the papers. In those circumstances, I was satisfied that the determination of the matter would not be significantly aided by an oral hearing within s 20A(2)(c) of the Federal Court Act.

Procedural history

6    Originating application (Mar 2025): The Applicant’s originating application in proceedings VID250/2025 (filed in March 2025) seeks orders quashing a decision by the Fair Work Commission in relation to a dispute between the Applicant and Swinburne (proposed orders 1 to 3); declarations that an enterprise agreement, and certain conduct of Swinburne, is contrary to the Fair Work Act (proposed orders 4 and 5); and declarations that a Deed of Release between the Applicant and Swinburne is either legally ineffective, or does not prevent the Applicant from pursuing claims under the Fair Work Act (proposed orders 6 and 7).

7    Applicant’s interlocutory application (Sep 2025): On 15 September 2025, the Applicant filed an interlocutory application seeking orders to prevent Swinburne from taking any steps to enforce a costs order obtained against the Applicant in the Magistrates’ Court, and to stay the enforcement of that costs order (see proposed orders 1 and 2 of that application). The stated basis for making this latter order was that enforcement of the costs order while the Federal Court proceeding is pending would (it was said) “interfere with, prejudice, or undermine the Court’s ability to determine the substantive issues, including the validity of the Deed of Release and the allegations of misrepresentation and retaliation”.

8    It appears from the affidavit of the Applicant accompanying his September 2025 interlocutory application that, in May 2025, the Magistrates’ Court stayed proceedings brought by the Applicant against Swinburne in that Court, pending the determination of Federal Court proceedings VID250/2025, and ordered that the Applicant pay Swinburne costs of $2,530.20.

9    Primary judge dismisses interlocutory application (Oct 2025): The primary judge heard the interlocutory application on 17 October 2025. The relevant parts of that hearing are as follows:

(a)    The Applicant stated that he had applied to the Magistrates’ Court for money that he said he was owed under the Deed of Release.

(b)    The primary judge asked the Applicant to explain how the Federal Court had power to stay the execution of a costs order made by the Magistrates’ Court, and stated that it was a matter for the Magistrates’ Court whether to stay its order.

(c)    The Applicant stated that he was arguing that the enforcement of the costs order would interfere with the Federal Court proceedings. He stated that he was being pressured, and this pressure was interfering with his ability to represent himself, as a self-represented litigant. The primary judge observed that the Applicant held a position as a senior lecturer in law, and was not in the normal category of self-represented litigants.

(d)    Swinburne’s counsel stated that the Magistrates’ Court had refused to stay its costs orders.

(e)    As to proposed order 1, the primary judge stated that the Applicant could not obtain an injunction to restrain Swinburne from taking steps to enforce the costs order unless the Applicant had a legal cause of action. The primary judge asked the Applicant what his legal cause of action was. The Applicant stated that his right was his ability to bring the proceeding in the Federal Court.

10    Reasons for refusing interlocutory application: The primary judge gave the following oral reasons for refusing the Applicant’s interlocutory application:

The applicant in this proceeding applies, by urgent interlocutory application accepted for filing on 15 September 2025, for two types of interlocutory orders. … The first is that the respondent be restrained from taking any step to enforce a cost order that the respondent has obtained in its favour in the Magistrates Court of Victoria. And the second is that – and I assume in the alternative – the respondent be restrained from enforcing the costs order made in its favour, pending the final determination of proceeding by VID250 of 2025 in this court. I am not satisfied that either order should be made.

The first difficulty that Dr Gussen faces is that he is unable to identify a legal cause of action which may lay the foundation for an interim restraint order of the type sought in paragraph 1. It’s fundamental that this court does not have power to grant interlocutory restraining orders absent identification of an underlying cause of action.

For that proposition, see Australian Broadcasting Corporation v Lenah Game Meats [[2001] HCA 63; 208 CLR 199]. Therefore, order 1 will not be made.

Order 2 seeks a stay of the enforcement process of the cost orders made in the Magistrates Court of Victoria. In my view, this court does not have power to grant a stay of an order made in the Magistrates Court of Victoria of the type sought. For those brief reasons, the interlocutory application Dr Gussen made 15 September 2025 is dismissed.

11    Costs of interlocutory application: Swinburne sought its costs of opposing the interlocutory application. The following exchange then occurred between the Applicant and the primary judge:

HIS HONOUR:     Dr Gussen, do you resist the usual costs order?

DR GUSSEN:    Yes, your Honour. I’m hoping that we can leave those costs until the end of this matter.

HIS HONOUR: Right. The normal rule is that, once an interlocutory application is dismissed, costs follow the event. Is there some reason why costs should not follow the event?

DR GUSSEN:    Because of my financial hardship.

HIS HONOUR: A lot of people raise that, but there is clear authority that your financial hardship is an irrelevant consideration in the exercise of my discretion and, if I took that into account, I would be making an error of law.

DR GUSSEN:    I have nothing else to say, your Honour.

HIS HONOUR: Yes. This is an appropriate case that costs follow the event. The next order I make is that the applicant is to pay the respondent’s costs of and incidental to the interlocutory application of 15 September 2025. …

12    Application for leave to appeal and extension of time (Nov 2025): On 27 November 2025, the Applicant filed an application for an extension of time and leave to appeal. This application sets out the following grounds of application:

1.     The primary judge erred by making a costs order without applying s 570(1) of the Fair Work Act 2009 (Cth) (“FW Act”), which prohibits the making of a costs order unless one of the narrow statutory gateways in s 570(2) is satisfied. His Honour did not refer to s 570, identify a gateway, or make findings capable of engaging s 570(2). This constitutes error of principle.

2.     None of the statutory grounds in s 570(2) was capable of being satisfied on the evidence. The primary judge did not find: (a) that the interlocutory application was instituted vexatiously or without reasonable cause (s 570(2)(a)); (b) that any unreasonable act or omission by the Applicant caused the Respondent to incur the costs (s 570(2)(b)); or (c) that the Applicant unreasonably refused to participate in a matter before the FWC [Fair Work Commission] (s 570(2)(c)). Absent such findings, the discretion to order costs was not enlivened.

3.     The primary judge applied the general principle that “costs follow the event”, a principle displaced in proceedings under the FW Act unless a s 570(2) gateway is made out. The application of a general costs rule in a “no costs” jurisdiction is a legal error going directly to the exercise of discretion.

4.     The primary judge failed to give adequate reasons identifying the statutory basis for the costs order or the factual findings necessary to satisfy s 570(2). This failure prevents meaningful appellate review and constitutes jurisdictional error and a miscarriage in the exercise of discretion.

13    The Applicant’s November 2025 affidavit seeks to explain the delay in applying for leave to appeal.

14    Which interlocutory application? The application is for an extension of time and leave to appeal from “the cost[s] order made by [the primary judge] on 17 October 2025”. The costs order made by the primary judge on that date was to pay the costs of and incidental to “the interlocutory application of 15 September 2025” (see order 2); that is, the interlocutory application discussed above.

15    However, the Applicant’s initial written submissions in this application seem to refer to a different interlocutory application, stating that he made an oral application seeking reallocation or recusal on 17 October 2025, and that the primary judge dismissed that oral application and ordered that the Applicant pay the Respondent’s costs. That oral application does not appear from the transcript of the hearing of 17 October 2025. In any event, as just explained, the costs order made on 17 October 2025 (which is the subject of this application) in its terms applies to the interlocutory application dated 15 September 2025. I will therefore deal with the order for costs relating to the 15 September 2025 application.

consideration

Extension of time and leave to appeal

16    The Applicant correctly recognises that he needs both an extension of time and leave to appeal from the costs order made by the primary judge.

    This order was interlocutory in nature, and therefore leave is required to appeal: Federal Court Act s 24(1A).

    An application for leave to appeal against an interlocutory order must be filed within 14 days after the order was made: Federal Court Rules 2011 (Cth) r 35.13(a). Here, the orders were made on 17 October 2025. An appeal was therefore required to be filed by 3 November 2025, whereas the application was filed on 27 November 2025.

17    Extension of time – general principles: The overarching consideration when determining whether to grant an extension of time is whether injustice may arise by a strict application of the time limit. The Court considers matters such as: the length of the delay; whether an acceptable explanation for the whole of the delay has been provided; the merits of the underlying application (here, the likelihood of leave to appeal being granted); and the consequences of granting or refusing the extension, including any prejudice to the respondent: see Russel v Macquarie Bank Limited [2020] FCA 1332 at [23]-[24] (Thawley J); see also Quach v RU [2024] FCAFC 32 at [24]-[25] (the Court). The Court usually consider the merits of the appeal at a reasonably impressionistic level, but if the circumstances warrant, the Court may engage in a more than impressionistic assessment of the merits: Spears v South Australian Wine Group Pty Ltd [2024] FCA 948 at [22] (O’Sullivan J), citing Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

18    Extent and explanation for delay: Here, the delay is a little over three weeks (from 3 November to 27 November 2025). The Applicant states in his November 2025 affidavit that this delay is explained by his self-represented status, the time required to understand the statutory scheme (namely, the restriction in s 570 of the Fair Work Act on the award of costs), and the time taken to prepare the documents. This is not really a sufficient explanation: I understand that the Applicant held a position as a senior lecturer in law, and therefore has a much greater understanding of legal matters than many self-represented litigants. The delay is not slight, but not so substantial as to weigh heavily against granting an extension of time.

19    Consider merits as part of leave application: A crucial matter for the extension of time is the merits of the application, which is also relevant to whether to grant leave to appeal being granted. In these circumstances, the preferable course is to grant the extension of time, and address merits in determining whether or not to grant leave to appeal: see Wilson v State of Victoria [2023] FCAFC 204 at [13] (the Court).

20    Leave to appeal – general principles: To obtain leave to appeal from an interlocutory judgment, the Applicant must show that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by a Full Court, and that substantial injustice would result if leave were to be refused, supposing the decision to be wrong: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2019] FCAFC 36 at [2] (the Court). In assessing prejudice, the Court has regard to the significance of the interlocutory decision to the outcome of the proceedings: see Shockthorap v Electricity Network Corporation [2019] FCA 619 at [12]-[13] (Banks-Smith J).

21    The Court exercises particular caution before intervening in discretionary decisions as to costs: Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 at [68]-[69] (Logan J, with Bromberg J agreeing on this point), quoting Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; (2010) 265 ALR 112 at [113] (the Court). It has been said that even a clear error in the award of the costs of an interlocutory application would not ordinarily justify leave to appeal being granted: Element Zero Pty Ltd v Fortescue Ltd [2025] FCA 206 at [34] (Stewart J). That said, a failure to have regard to a statutory limit on the power to award costs would ordinarily amount to an error of principle.

22    Given this caution before intervening in costs matters, it is appropriate to consider the merits of this application in a little detail (similar to the approach permitted by Katoa for an extension of time).

Fair Work Act s 570 – limit on costs orders

23    The Applicant’s arguments rely on s 570 of the Fair Work Act, which limits this Court’s powers to award costs in proceedings arising under that Act as follows:

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

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before the FWC;

(ii)    the matter arose from the same facts as the proceedings.

24    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 s 570 of the Fair Work Act (citations omitted):

[20]    Section 570(1) of the FW Act operates as an express limitation on the broad discretion to award costs that is conferred upon the Court by s 43 of the [Federal Court Act]: … . That limitation does not apply if (amongst other circumstances) the Court is satisfied that one or more of the criteria listed in s 570(2) are satisfied.

[21]    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”: … .

25    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].

Does s 570 apply in respect of the Applicant’s interlocutory application?

26    The Applicant’s arguments proceed on the basis that s 570 of the Fair Work Act applies to limit any costs order that could be made in respect of the Applicant’s interlocutory application. That premise requires examination.

    There can be no doubt that proceeding VID250/2025 as a whole is a proceeding in relation to a matter arising under the Fair Work Act within s 570(1): all the Applicant’s claims made in the originating application seek relief in relation to the Fair Work Act.

    However, the particular issue here is whether s 570 applies to the costs order made in respect of the Applicant’s September 2025 interlocutory application.

27    Interlocutory applications and s 570(1): It is necessary first to explain how s 570(1) applies in respect of interlocutory applications. It has been held that an interlocutory application is captured by the term “proceedings” in s 570(1) of the Fair Work Act, such that not only the principal action but also an interlocutory application made in the principal action may be considered separate proceedings for the purposes of s 570(1): Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2018] FCA 47 at [22] (Bromberg J), referring to Stanley v Service to Youth Council Inc (No 3) [2014] FCA 716; (2014) 225 FCR 357 at [33] (White J) (considering s 570); and Shackley v Australian Croatian Club Ltd [1996] IRCA 641; (1996) 141 ALR 736 at 745 (Wilcox CJ, with von Doussa J agreeing) and Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115; (2003) 129 FCR 271 (Commonwealth v CFMEU) at [8] (the Court) (considering a predecessor to s 570). (The costs decision of Bromberg J in Yallourn was overturned on appeal, but without casting any doubt on this particular statement: see Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; (2018) 264 FCR 342.)

28    In other words, a party may be ordered to pay another party’s costs of an interlocutory application that is in relation to a matter arising under the Fair Work Act if the bringing of that interlocutory application comes within the circumstances set out in s 570(2): see Commonwealth v CFMEU at [13]-[15].

29    The Applicant’s arguments that the primary judge’s decision to award costs was in error face two, separate difficulties.

30    Is the application “in relation to” a Fair Work matter? First, the Applicant’s interlocutory application will only attract the costs protection in s 570(1) of the Fair Work Act if that application is “in relation to” a matter arising under the Fair Work Act. The Applicant’s initial written submissions did not address this requirement, but he was directed to, and did, make supplementary submissions on the topic.

31    An initial point is that the Applicant’s interlocutory application is not “in relation to” a Fair Work Act matter merely because the application was made in a proceeding that raises claims under the Fair Work Act (VID250/2025). (And, as explained below, the remedies sought in that interlocutory application do not, in themselves, raise claims under the Fair Work Act.)

    For example, in Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67; (2021) 284 FCR 546, the respondents raised a cross-claim in response to claims made by the Applicant under the Fair Work Act. The Full Court held that a cross-claim is a separate “proceeding” (although heard together), and therefore it was necessary to consider the connection between the cross-claim and the claims in the initial proceeding, to determine whether the cross-claim was a proceeding “in relation to” the Fair Work Act matter: Joseph v Parnell at [103], [116].

    It is true that, when an applicant brings claims both under the Fair Work Act and under other sources (say, the common law), these different claims form part of the same “proceeding”, and therefore all claims including the common law claims will attract the protection against costs in s 570 of the Fair Work Act: Joseph v Parnell at [91]-[92], referring to Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221. However, as explained above, an interlocutory application is treated for these purposes as a separate “proceeding”.

32    The test for determining whether a proceeding is “in relation to” a matter arising under the Fair Work Act is whether the proceeding (here, the interlocutory application) relates to a right or duty sought to be enforced which owes its existence to a provision of the Act. The phrase is one of broad connection that requires a relevant relationship, having regard to the scope of the Act: see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (No 2) [2015] FCAFC 166; (2015) 235 FCR 366 at [11] (the Court), relied on by the Applicant. Similarly, in Joseph v Parnell at [113], the Full Court stated that legislative context and the drafting history suggest that the relationship between the proceeding and the matter arising under the Act need not be a narrow one.

33    But that does not mean that any connection will suffice, no matter how remote. It is necessary in each case to consider whether there is a relevant or sufficient connection between the non-Fair Work Act claims in the other proceeding (here the claims in the interlocutory application) and the Fair Work claims. For example:

    In Joseph v Parnell, there was a sufficient connection between the cross-claim and the Fair Work Act claims, because those matters arose out of the same facts, and the respondents sought to rely on the cross-claim to reduce any amount payable under the Fair Work Act claims: Joseph v Parnell at [118]-[121].

    In Sabapathy v Jetstar Airways (No 2) [2021] FCAFC 68, there was a sufficient connection to attract s 570(1) between a proceeding brought under s 39B of the Judiciary Act 1903 (Cth) and a proceeding in the then Federal Circuit Court brought under the Fair Work Act. The s 39B proceeding was brought to remedy an asserted breach of procedural fairness in the Federal Circuit Court proceeding, where that Court was proposing of its own motion to remove all but two of 10 respondents. The Full Court stated that the connection required by s 570(1) “is broad enough to capture a proceeding which has a relationship to another proceeding in which relief is sought under the [Fair Work] Act but which does not itself seek relief under the [Fair Work] Act”: Sabapathy at [6]. To similar effect, see ALS Industrial at [13]-[15].

    By contrast, in Beaumont Hills Dental Surgery Pty Ltd v Goodarzi [2022] FCA 625, the prospective applicant (Beaumont Hills) sought its costs of an application for preliminary discovery that was brought to inform a decision as to whether to file a cross-claim for misuse of confidential information in existing proceedings filed by the prospective respondent (Dr Goodarzi) that made claims against Beaumont Hills under the Fair Work Act: Beaumont Hills at [1]. Katzmann J rejected Dr Goodarzi’s argument that the application for preliminary discovery was “in relation to” her Fair Work Act claims within s 570(1). The rights in dispute in that application did not owe their existence to the Fair Work Act, but the Federal Court Rules. The application was an entirely separate proceeding, and it was not enough that some or all of the rights to relief contemplated by Beaumont Hills were ultimately asserted in its cross-claim: Beaumont Hills at [46]-[47]. None of the matters that established a sufficient relationship in Joseph v Parnell were present in that case: Beaumont Hills at [56].

    I note also that an application for a monetary penalty for contempt of court for non-compliance with a court order is not “in relation to” a matter arising under the Fair Work Act, even if the order was to restrain contraventions of the Fair Work Act: see Director of the Fair Work Building Industry Inspectorate v Cartledge (No 2) [2015] FCA 851 at [31]-[40] (Mansfield J).

34    Relationship between Applicant’s interlocutory application and Fair Work claims: Here, the Applicant’s interlocutory application sought to restrain the enforcement of a costs order made by the Magistrates’ Court, in a proceeding brought by the Applicant in which he sought to be paid money that he was owed under the Deed of Release: see [9](a) above. That is, the claim in the Magistrates’ Court is a claim in contract, not a claim under the Fair Work Act. And the costs order made by the Magistrates’ Court in respect of that claim is one further step removed from claims made under the Fair Work Act.

35    I accept that there is some factual link between the Magistrates’ Court proceedings and proceedings VID250/2025, in that both relate to a Deed of Release between the Applicant and Swinburne. However, the premise of the Applicant’s claims in the Magistrates’ Court (as described to the primary judge at the October 2025 hearing) must be that the Deed of Release is legally valid, simply because money could not be owing to him under a deed that is legally invalid. By contrast, in proceedings VID250/2025, the Applicant is seeking (among other things) a declaration under either s 21 of the Federal Court Act or s 562 of the Fair Work Act that the Deed of Release is void ab initio. That is, the Applicant’s arguments in the Magistrates’ Court and his arguments in this Court in VID250/2025 take inconsistent approaches to the validity of the Deed of Release.

36    What that means is that this case is quite different from Joseph v Parnell, where a cross-claim was effectively raised as a defence or partial defence to claims made under the Fair Work Act. Here, the Applicant’s claims in the Magistrates’ Court are separate from the claims he seeks to make in this Court under the Fair Work Act, in that they proceed from an inconsistent legal premise. Further, the orders sought by the Applicant in the interlocutory application sought to restrain steps being taken in the Magistrates’ Court; namely, the enforcement of a costs order made by that Court. Unlike Sabapathy and ALS Industrial, the Applicant’s interlocutory application was not directed to enforcing or establishing the Applicant’s claims in this Court, but rather was concerned with relieving the Applicant of the burden of the Magistrates’ Court costs order.

37    The Applicant contends (as he did before the primary judge) that the necessary connection is that enforcement of the Magistrates’ Court costs order would materially prejudice his ability to prosecute his claims in the Federal Court, and would exert improper pressure for him to discontinue. He seeks to rely on correspondence from Swinburne’s solicitors (marked “without prejudice save as to costs”) to establish the factual basis for these propositions. However, that type of connection between the proceedings is much too remote to say that the interlocutory application is “in relation to” rights under the Fair Work Act. Apart from anything else, the logic of the Applicant’s argument does not require any connection between the subject-matters of the two proceedings, just that the parties in the two proceedings be the same. That cannot be sufficient. And it might be noted that it was the Applicant who chose to bring proceedings in two courts, making inconsistent arguments.

38    In these circumstances, it is very difficult to see how the Applicant’s interlocutory application could be a proceeding “in relation to” a matter arising under the Fair Work Act. It is one thing to say that the policy of s 570 of the Fair Work Act is that persons who seek by legal proceedings to vindicate rights or to obtain relief under the Fair Work Act should be able to do so without exposing themselves to the risk of having to pay the costs of another party in the event that they are unsuccessful: Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd [2020] FCAFC 194; (2020) 283 FCR 123 at [103] (White J). It is quite another to say that this costs protection should extend to wholly separate proceedings raising claims not under the Fair Work Act, which proceed from an inconsistent premise from the person’s claims under the Fair Work Act, and which have no closer connection to the Fair Work Act claims than the financial pressure arising out of a liability to pay costs.

39    To reiterate, it may seem odd that an interlocutory application made in a proceeding arising under the Fair Work Act should not itself be “in relation to” a Fair Work Act matter; however, a lack of connection with the Fair Work Act claims is why the application was refused. And if the Applicant’s interlocutory application was not “in relation to” a matter arising under the Fair Work Act, then there was no error in the decision of the primary judge (which treated s 570 as not applicable). The Applicant’s arguments for leave at least face serious difficulty on this point.

Overwhelming case for the application of s 570(2) grounds

40    The Applicant faces a second, independent difficulty. Contrary to his ground 2, the circumstances of his interlocutory application present an overwhelming case for the application of s 570(2) of the Fair Work Act, even assuming in his favour that s 570 were applicable to his application.

41    The primary judge’s reasons for refusing the interlocutory application (which are not challenged) show that the interlocutory application did not have any reasonable prospects of success at the time it was instituted (cf Fair Work Act s 570(2)(a)). As the primary judge stated, it is fundamental that a party cannot obtain an injunction unless the party can identify a cause of action, and that this Court does not have power to restrain the enforcement of a costs order made by a State Court. 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). That is the case here. There may also be an issue whether the Applicant acted unreasonably in bringing proceedings in this Court and the Magistrates’ Court which took inconsistent approaches to the validity of the Deed of Release (cf s 570(2)(b)).

42    In other words, if leave to appeal were granted (and assuming in the Applicant’s favour that s 570 of the Fair Work Act did apply to the Applicant’s interlocutory application), the proper exercise of the costs discretion on appeal under s 570 in the circumstances of this case would be to reach the same result as the primary judge, and to award the Respondent the costs of the interlocutory application. That is, there is no substantial injustice if leave is refused.

Failure to provide reasons?

43    The Applicant might object that the reasoning set out above (specifically, whether the interlocutory application is “in relation to” a Fair Work Act matter) does not appear in the primary judge’s reasons (cf his ground 4). It might be noted that neither party at the hearing raised s 570 of the Fair Work Act as a reason not to award costs, which may explain why the primary judge did not refer to it expressly. In any event, it is necessary to keep in mind the nature of a ground of appeal that a judge has not provided adequate reasons. As the Full Court explained in Dimitrovski v Boland [2023] FCAFC 86 at [71]:

Inadequacy of reasons would not mean that the primary judge’s decision was wrong. Such inadequacy would require his Honour’s judgment to be set aside only if it was such as to prevent this Court on appeal from determining whether the judgment was correct: for example, if necessary findings of fact were set out.

44    Here, the question of whether s 570 of the Fair Work Act was capable of applying to the interlocutory application is a matter of law, apparent on the face of the application. And the findings made by the primary judge also make it possible to be confident that this would be an appropriate case to award costs under s 570(2), even making the assumption in the Applicant’s favour that s 570 was applicable to the Applicant’s interlocutory application.

conclusions

45    For the reasons set out above, I would grant the Applicant an extension of time, but refuse to grant leave to appeal against the interlocutory costs order made by the primary judge. The primary judge’s decision is not attended by sufficient doubt to warrant the grant of leave, and there is no substantial injustice if leave is refused. Swinburne has not sought to be heard on this application, so there is no need to make any provision for costs.

Associate:

Dated:    6 February 2026