Federal Court of Australia

Gussen v Swinburne University of Technology [2026] FCA 559

ORDERS

THE COURT ORDERS THAT:

1.    The time for the applicant to apply for leave to appeal from the orders of the primary judge made on 10 November 2025 in proceeding VID 250 of 2025 is extended (with retrospective effect) to 4.30 pm AEDT on 28 November 2025.

2.    The application for leave to appeal is dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal from the orders of the primary judge made on 21 November 2025 in proceeding VID 250 of 2025 is dismissed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This judgment concerns two related proceedings, VID 53 of 2026 and VID 1667 of 2025. Each proceeding involves an application made by Dr Benjamen Gussen for leave to appeal from a decision of the same primary judge in an ongoing employment matter between Dr Gussen and Swinburne University of Technology.

2    Proceeding VID 53 of 2026 is an application for leave to appeal from the refusal of an application for the primary judge to recuse himself for apprehended bias. Proceeding VID 1667 of 2025 is an application for leave to appeal from the subsequent costs order made against Dr Gussen.

3    With Dr Gussen’s agreement, I have ordered that both of the current applications are to be determined on the papers. The University has elected not to file any materials in either application.

4    For the following reasons, both of the applications for leave to appeal will be dismissed.

Background to the recusal decision

5    It is useful first to outline the background to the recusal decision, as it is relevant to each of the applications currently before the Court.

6    The proceeding at first instance concerns an application by Dr Gussen for judicial review of decisions of the Fair Work Commission, together with related claims arising under the Fair Work Act 2009 (Cth) in respect of his employment with the University. Dr Gussen is the applicant in that proceeding and does not have legal representation.

7    The recusal application brought by Dr Gussen was founded on events that took place during a case management hearing before the primary judge on 17 October 2025. While Dr Gussen gave slightly different accounts of the events on different occasions, I rely on the version in his affidavit sworn 25 November 2025.

8    Dr Gussen’s uncontradicted evidence is that shortly before the hearing commenced, Ms Walsh, acting as counsel for the University, approached him, tapped him on the shoulder and ‘physically moved’ him from what he described as the applicant’s side of the bar table to the opposite side. According to Dr Gussen, counsel also ‘adjusted the lectern toward herself, narrowing [his] space’.

9    According to what he refers to as a ‘contemporaneous note’ of the incident which Dr Gussen has put into evidence, when the hearing commenced:

I immediately raised the matter with His Honour, noting that I had been moved from the applicant's correct side. His Honour responded, "It does not matter." While I accept His Honour's direction, I record that the physical contact and subsequent adjustment of the lectern startled and unsettled me, affecting my composure and capacity to present my interlocutory application.

10    On 24 October 2025, Dr Gussen filed the recusal application. In an affidavit filed in support of that application, he said that he was unsettled by the physical contact and by the response of the primary judge, and that this ultimately affected his ability to participate in the hearing.

11    Additionally, Dr Gussen claims that the primary judge made two comments regarding ‘litigants in person’. One comment was allegedly made during the case management hearing on 17 October 2025; the other was a ‘substantially similar comment’ allegedly made during a case management hearing on 23 May 2025 to a different (unidentified) litigant in person in another matter which had been listed before a case management hearing in Dr Gussen’s proceeding.

12    Upon receiving the affidavit filed in support of the recusal application, the primary judge directed his associate to provide Dr Gussen with the transcript for the case management hearing on 17 October 2025. The exact date the transcript was provided to Dr Gussen is unclear from the evidence before this Court, but it can be inferred to be between 24 October 2025 (when the recusal application was filed) and 29 October 2025 (when Dr Gussen first emailed the Registry to request access to an audio recording of the case management hearing). Dr Gussen subsequently sought leave to access the audio recordings of both the 17 October 2025 case management hearing and the earlier case management hearing of 23 May 2025. The primary judge refused to grant leave in each instance.

Application for leave to appeal from the recusal decision

The primary judge’s decision not to recuse himself

13    The recusal application was dismissed on 10 November 2025. In reasons published to the parties, the primary judge largely focussed on the comments Dr Gussen claimed were made regarding litigants in person.

14    His Honour identified the comment that Dr Gussen alleged he had made at the case management hearing on 17 October 2025 as that:

“… self represented applicants are a nuisance or burden because they are less familiar with the Court’s rules and procedures, or because they are difficult to deal with.”

15    The primary judge recorded that his associate had provided the transcript to Dr Gussen, which showed that no such comment was made. His Honour quoted the passage of the transcript which recorded the exchange following the ‘bar-table incident’ to support this. The passage is:

HIS HONOUR: Now, Dr Gussen, you appear for yourself.

DR B. GUSSEN: Am on this end or at the other end. I’m the applicant.

HIS HONOUR: It doesn’t matter to me. Let’s not stand on formalities.

DR GUSSEN: I believe I’m on that end, your Honour. She told me to sit here. I’m on that end.

HIS HONOUR: Look, let’s not have a dispute about that. You appear for yourself.

DR GUSSEN: Yes, I am.

HIS HONOUR: All right. And, Ms - is it Ms Walsh for - - -

MS R. WALSH: Yes, your Honour.

16    Later on, the transcript records that after the primary judge proposed to put Dr Gussen on a timetable to file and serve an interlocutory application for leave to amend his originating application, his Honour asked:

Do you oppose that, Ms Walsh? I know this is taking a terribly long period of time, but it’s often the case with litigants in person.

17    The primary judge’s reasoning on the recusal application is as follows:

9    It is extraordinary that Dr Gussen does not accept the accuracy of the independently prepared third-party transcript of what occurred. Consistently with the overarching purpose, absolutely no purpose would be served by prolonging the recusal application to afford an opportunity to Dr Gussen to verify that the transcript is accurate. Sometimes access to an audio recording is appropriate where, for example, some word or phrase has been missed or misinterpreted. But nothing of that character has occurred here. Dr Gussen has substantially misstated what occurred.

10    As to the assertion that I said the wrongly attributed words to a different litigant in person at an earlier case management hearing, the evidence of Dr Gussen rises no higher than unsubstantiated speculation infused with commentary. It should clearly be understood by Dr Gussen that an application to a judge of this Court for recusal is a serious matter that must have a proper basis in objective fact. After all, that is the test for apprehended bias by reference to the fair-minded lay observer.

11    Put simply, the recusal application fails because it lacks a factual basis and therefore any logical connection between the asserted subject matter and that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of this proceeding.

12    Whether Dr Gussen addresses the Court from the right, left or middle of the bar table is a trifling matter that has nothing to do with the impartial resolution of his proceeding.

18    The recusal application was dismissed as having no factual or legal merit. That is the first decision from which Dr Gussen now seeks leave to appeal.

Extension of time

19    The recusal application was interlocutory in nature; so too was the decision to dismiss the application. Dr Gussen therefore requires leave to appeal, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

20    Rule 35.13(a) of the Federal Court Rules 2011 (Cth) requires an application for leave to appeal to be filed within fourteen days after the date when the judgment was pronounced or the orders made. Orders were made dismissing Dr Gussen’s interlocutory application on 10 November 2025, and Dr Gussen lodged this application on 28 November 2025, four days out of time. It was not accepted for filing in the registry until 20 January 2026 however it is taken to have been filed on the day it was lodged: r 2.25(3).

21    Dr Gussen applies for an extension of time for leave to appeal. The delay is minimal and there is no suggestion that it has caused any prejudice, particularly in light of the University’s decision not to file submissions in response in the applications for leave to appeal or to otherwise participate. An extension of time will be granted.

Principles for grant of leave to appeal

22    It is well established that in determining whether to grant leave to appeal from an interlocutory decision, generally the Court should direct its attention to whether the primary judge’s decision is attended with sufficient doubt to warrant its reconsideration by a Full Court and whether, supposing the decision to be wrong, refusal of leave to appeal would result in substantial injustice. These enquiries bear upon each other: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

23    The second of these enquiries can be dealt with briefly. I accept that, if the decision of the primary judge made on 10 November 2025 is wrong, a substantial injustice would result, as the proceeding would be determined by a judge who it is reasonable to apprehend is biased or has otherwise prejudged the matter: see, e.g., GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [31].

Principles as to recusal for apprehended bias

24    The real issue concerns the first enquiry, as to the extent of doubt about the correctness of the primary decision. In order to determine this, it is necessary to identify the principles governing apprehended bias.

25    A judge is disqualified for apprehended bias ‘if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. The question is to be approached by the three-stage analysis identified in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [38]:

… (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

26    In SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [41]-[42], Gageler CJ and Gleeson J emphasised the second of these stages as follows (citations omitted):

… There can be no reasonable apprehension of bias that results from an apprehension that a judge might do exactly what the judge is permitted to do in the proper discharge of the judicial function. Hence the need for a logical connection between the asserted source of apprehended bias and some deviation from the proper course of deciding the case on its legal and factual merits to be established as a precursor to the assessment of the reasonableness of the asserted apprehension from the perspective of a fair-minded lay observer.

Articulating the logical connection between the identified source of bias and the feared deviation from the course of deciding the case on its merits requires that the party fearing bias identify an objectively credible reason why the judge might lack the requisite impartiality to decide the case.

Consideration of whether the primary decision is attended with sufficient doubt

27    For the reasons that follow, there is no merit in Dr Gussen’s argument that the circumstances surrounding the case management hearing on 17 October 2025 might lead a fair-minded lay observer reasonably to apprehend that the primary judge might not bring an impartial mind to the resolution of his employment proceeding. Dr Gussen’s arguments are likely to fail at various points at each of the three stages of the analysis identified in QYFM. There is therefore insufficient doubt about the correctness of the primary judge’s decision to warrant leave to appeal.

28    The factors which Dr Gussen has identified in this application that might lead a fair-minded lay observer to apprehend that the primary judge might resolve the first instance proceeding other than on its legal and factual merits are:

(a)    the ‘bar-table incident’, where counsel for the University ‘physically directed’ his position at the bar table and ‘adjusted the lectern in her favour’; which, it is contended, the primary judge treated as a ‘trifling matter’, including by not making any ‘corrective intervention’ and saying instead that it did not matter;

(b)    the primary judge’s comment that proceedings with litigants in person often take a long time and his Honour’s asserted ‘non-engagement’ with this comment;

(c)    the alleged comment made to another unnamed litigant in person in May 2025;

(d)    the refusal to allow Dr Gussen’s note to be placed on the Court file; and

(e)    the refusal to allow Dr Gussen to access audio recordings of the case management hearings on 23 May 2025 and 17 October 2025.

29    None of these factors, alone or cumulatively, support any reasonable apprehension that the primary judge might decide the employment proceeding other than on its merits.

30    Although it may be conventional for an applicant to stand on one side of the bar table, it is not credible to suggest that the primary judge’s response ‘it doesn’t matter to me’ and expression of a wish to move on with the hearing indicates that his Honour might lack impartiality in his approach to case. To the contrary, it suggests that his Honour was not likely to pay regard to irrelevancies, such as where someone addressing him was standing.

31    The proposed notice of appeal contains a ground by which Dr Gussen contends that the primary judge ‘materially misapprehended or failed to grapple with relevant facts’. In Dr Gussen’s written submissions, he says that the primary judge failed to ‘grapple’ with the bar-table incident. In particular, he says the treatment of the bar-table incident as a ‘trifling matter’ gave rise to the appearance of bias and led to his Honour misdescribing the ‘essence’ of Dr Gussen’s complaint in this regard. Dr Gussen’s affidavit in support of the recusal application says that his Honour’s response to the complaint about Ms Walsh’s alleged conduct was to say it ‘does not matter’. But the transcript reveals that, in fact, his Honour said (emphasis added) ‘It doesn't matter to me. Let's not stand on formalities.’ And ‘[l]ook let’s not have a dispute about that’. Clearly, his Honour was indicating that where Dr Gussen was standing would make no difference to how his Honour would treat him in the hearing. So in that respect, the factual basis for the complaint about bias is not made out.

32    Further, even though Dr Gussen may feel dissatisfied with his Honour’s response to his allegations about the way counsel for the University treated him (which, it must be said, appear from the transcript not to have been put clearly to his Honour), he has not identified any sensible way in which shortcomings in his Honour’s response (if any) might indicate that his Honour will not decide the employment proceeding other than by identifying the law and applying it impartially to the facts.

33    The complaint about the primary judge’s comment regarding proceedings involving litigants in person taking longer also fails at the point of logical connection. A general observation about time periods in respect of litigants in person (which may or may not be correct) says nothing about how the judge will approach the merits of a particular case.

34    In any event, the comment came after a discussion with Dr Gussen about making amendments to his originating application. After the comment was made, the primary judge granted Dr Gussen leave to file and serve an interlocutory application for leave to amend his originating application and/or for leave to amend his statement of claim. His Honour gave time in excess of the 21 days Dr Gussen had initially asked for. A fair-minded lay observer looking at the course of events as a whole would likely conclude that his Honour was open to allowing litigants in person more time, and not that his Honour was negatively predisposed towards them for that.

35    As for the other alleged comment about litigants in person at an earlier hearing, there is simply no evidence showing that it was made. It lacks any factual basis.

36    The grounds that rely on the refusal to allow a ‘contemporaneous file note’ prepared by Dr Gussen to be added to the court file, and the refusal to allow access to audio recordings, also fail at the point of logical connection. His Honour made these decisions in the routine discharge of his judicial function, and whether they were right or wrong, they do not give any reason to think that his Honour will decide the proceeding other than on its merits. Mere dissatisfaction with procedural rulings would not indicate bias to a reasonable observer: see Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11].

37    In any event, the decisions were correct. A litigant has no free standing right to add documents to the court file. Their right is to file evidence and make submissions so that they have a reasonable opportunity to make or to resist an application (as the case may be). As for the audio recordings, as the primary judge said, there was no basis to think that the transcript was inaccurate. Procedural fairness does not require that a litigant be given access to recordings of hearings, at least not in those circumstances.

38    Finally, I do not accept a submission that the primary judge failed to give adequate reasons for his decision not to recuse himself, or that his reasons somehow indicated that he misunderstood or misapplied the test in Ebner. Although the reasons given were brief, it is apparent that the primary judge considered Dr Gussen’s submissions and articulated why he did not accept them. It was not necessary for his Honour to recite the well-established principles derived from Ebner, and the fact that he did not do so betrays no misunderstanding of those principles.

39    For these reasons, the application for leave to appeal from the dismissal of the recusal application will be dismissed.

Application for leave to appeal from the costs decision

The primary judge’s decision to make a limited costs order

40    On 21 November 2025, the primary judge made a limited costs order against Dr Gussen in relation to the recusal application. The primary judge gave ex tempore reasons, and a written copy of the transcript titled ‘Draft Judgment’ is in evidence.

41    The primary judge began by recognising that s 570 of the Fair Work Act applied and that in its jurisdiction the default position is that each party is to pay their own costs, even where claims are raised that sit beyond the Act. His Honour then noted that a costs order may nonetheless be made when s 570(2) of the Act is engaged: in this case, if the Court was satisfied that there was an unreasonable act or omission and that this act or omission caused the other party to incur costs.

42    The primary judge found that the unreasonable act or omission was the continuation of the recusal application after having received the transcript of the case management hearing of 17 October 2025. His Honour held:

It’s plain, beyond argument, in my view, that objectively Dr Gussen ought to have appreciated that the factual basis for the recusal application was simply wrong. And that there was no basis to insist that he also be allowed to listen to the audio recording. As I pointed out in my reasons, the transcripts are provided by independent third parties.

43    The primary judge was satisfied that the recusal application was a cause for some costs incurred by the University in formulating written submissions. However, the primary judge was not satisfied that the costs were in the amount claimed by counsel for the University, since costs were claimed for the work of three lawyers on the matter and his Honour was not satisfied that was necessary.

44    The costs order made was limited to costs incurred on and from the time when Dr Gussen received the email from the primary judge’s chambers attaching the transcript for the case management hearing.

Extension of time

45    As with the recusal decision, the costs decision is interlocutory in nature and Dr Gussen requires leave to appeal pursuant to s 24(1A) of the Federal Court Act.

46    Dr Gussen’s application for leave to appeal suggests he has some concern about whether he made it within time. The costs judgment was delivered on 21 November 2025. Dr Gussen lodged his application on 1 December 2025, within the time prescribed by r 35.13(a) of the Federal Court Rules, and although it was not accepted for filing until 19 December 2025, as explained above it is taken to have been filed on the day it was lodged. No extension of time for leave to appeal is necessary.

Leave to appeal

47    There is reason to doubt that the making of a limited costs order in relation to the filing of one set of written submissions by the University qualifies as a ‘substantial injustice’

48    Dr Gussen submitted that substantial injustice would result if leave were refused because the order would expose a litigant in person in a ‘no costs’ Fair Work jurisdiction to an adverse costs order, said to be based on an unreasonable recusal application, with a real potential to chill good faith applications. Dr Gussen provided citations for this proposition, which, upon being queried by my Chambers, he conceded were hallucinations produced by generative artificial intelligence. The provision of false citations to the Court is to be deprecated and in a different matter, could well have led to costs consequences (at least) for Dr Gussen.

49    Dr Gussen has purported to provide corrected citations, but they do not change the outcome of the application. For I will assume, favourably to him, that the costs order will result in substantial injustice if it is wrong. Again, the focus is whether there is sufficient reason to doubt the correctness of the primary judge’s order. For the following reasons, there is not.

50    In his application for leave to appeal Dr Gussen puts three grounds that go to the merits of the primary judge’s costs decision. These are supported by two affidavits sworn 24 November 2025 and 25 March 2026, as well as written submissions filed on 19 December 2025.

51    First, Dr Gussen submits that there was no unreasonable act or omission to satisfy the condition for the exercise of the discretion to make a costs order under s 570(2) of the Fair Work Act. But his submissions on this point largely amount to further assertions that the recusal application had merit. For reasons given above, it did not.

52    Dr Gussen’s written submissions say that the transcript of the 17 October 2025 case management hearing ‘addressed only one incident and did not capture tone, context, or the repeated remarks underlying the apprehension of bias’. The effect of Dr Gussen’s initial evidence about the primary judge’s observations about litigants in person is set out at [42]. As set out above, the transcript reveals that his Honour actually said ‘[d]o you oppose that, Ms Walsh? I know this is taking a terribly long period of time, but it's often the case with litigants in person.’ That is not a difference of tone or context and it does not support the idea that any remarks were ‘repeated.’

53    The Court is entitled to treat the transcript of its proceedings as an accurate record, unless the contrary is shown by cogent evidence. Dr Gussen’s somewhat different recollection of the events does not amount to evidence of that kind. The ground in the application complains of the primary judge’s decision not to give Dr Gussen access to audio recordings and not to allow him to place a file note on the Court file, but as explained above those decisions are correct and do not negate the fact that Dr Gussen had the transcript of the case management hearing of 17 October 2025 by (at the latest) 29 October 2025 and nevertheless persisted in the recusal application.

54    Dr Gussen also says that the University’s own written submissions of 3 November 2025 in relation to the recusal did not assert that his conduct was unreasonable. But those submissions were about the merits of the recusal application prior to its determination; the issue of the reasonableness of Dr Gussen’s conduct for the purposes of the costs of that application only arose after it was determined on 10 November 2025. The University did, in any event, rely on the transcript of the hearing of 17 October 2025 and point out that it provided no support for Dr Gussen’s recusal application.

55    Second, Dr Gussen submits that there was no causal link between the unreasonable act and omission and the submissions filed by the University. This submission is impossible to understand. It enlists in support the fact that, according to Dr Gussen, the University’s submissions were ordinary submissions in the context of a recusal application. It claims that the University’s costs were ‘voluntarily incurred’. But this does not address the simple point that, if Dr Gussen had not persisted with the application, unreasonably, there would have been no need for the University to file submissions. The University took the view that it should resist the recusal application, as it was entitled to do. It is obvious that if Dr Gussen had withdrawn the application on seeing the transcript, the University would not thereafter have incurred the cost of answering it.

56    Third, Dr Gussen asserts that the primary judge gave inadequate reasons for making the costs order. There is no merit to this. The primary judge’s ex tempore reasons were entirely appropriate to deal with an application for costs in relation to limited interlocutory steps taken. Dr Gussen’s submissions contend that his Honour failed to identify what precise conduct was deemed unreasonable and why maintaining the recusal application ‘supported by evidence met the high threshold of “unreasonable” in s 570(2)(b)’. Those contentions are simply incorrect: his Honour made it clear that the unreasonable conduct was the continuation of the recusal application after receiving the transcript of the case management hearing; and his statement that ‘Dr Gussen ought to have appreciated that the factual basis for the recusal application was simply wrong’ explains clearly why his Honour concluded that the conduct met the threshold requirement of being unreasonable.

57    There is insufficient reason to doubt the correctness of the primary judge’s costs decision, so the application for leave to appeal from the costs decision will be dismissed.

Associate:

Dated:    8 May 2026