Federal Court of Australia

Gussen v Commonwealth of Australia as represented by the Tertiary Education Quality and Standards Agency [2026] FCA 1088

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.08 and r 1.32 of the Federal Court Rules 2011 (Cth) (Rules), the Fifth Respondent be removed as a party and the name of the First Respondent be changed to “The Commonwealth of Australia as represented by the Tertiary Education Quality and Standards Agency”.

2.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) summary judgment is entered:

(a)    in favour of the First Respondent in relation to the whole of the Applicant’s claims made against it;

(b)    in favour of the Second Respondent in relation to the whole of the Applicant’s claims made against it;

(c)    in favour of the Fourth Respondent in relation to the whole of the Applicant’s claims made against it; and

(d)    in favour of the Sixth Respondent in relation to the whole of the Applicant’s claims made against it.

3.    I will now hear any consequential applications for costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    This proceeding arises from Dr Benjamen Gussen’s underlying grievances with the delivery of the online Bachelor of Laws (online LLB) course by the third respondent, Swinburne University of Technology. Swinburne faces claims of alleged adverse action contrary to s 340 of the Fair Work Act 2009 (Cth) (FW Act). Dr Gussen’s dissatisfaction extends to the State of Victoria, Victorian Legal Admissions Board (VLAB) (State Parties), the Commonwealth of Australia, Tertiary Education Quality and Standards Agency (TEQSA) and SEEK Ltd. In various ways each is said to be involved in the primary contraventions of Swinburne (s 550 FW Act). Additionally, there are separate claims of misfeasance in public office, for declaratory relief and mandamus as well as for a new tort hitherto unrecognised in any comparable common law jurisdiction framed as “interference with protected professional expression”.

2    Dr Gussen (who is self-represented) commenced this proceeding on 19 November 2025, claiming that; (1) VLAB failed to perform its statutory functions under the Legal Profession Uniform Law as set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) and the Legal Profession Uniform Admission Rules 2015; and (2) the State of Victoria, through its representative the Attorney-General, failed to discharge its public interest oversight responsibilities after receiving the applicant’s written notification of risks to admission standards.

3    Dr Gussen’s claims were, to put it politely, not well pleaded. At a case management hearing on 19 January 2026, he was given leave to amend, which he took up with considerable enthusiasm. He then filed his Further Amended Originating Application and Further Amended Statement of Claim (FASOC) on 10 February 2026, in which he substantially expanded his claims adding the first and fifth respondents, the Commonwealth of Australia and TEQSA (the Commonwealth Parties) and the sixth respondent, SEEK.

4    Dr Gussen’s pleading style is idiosyncratic. The FASOC commences with his status as “legal academic and jurist”, a short description of the respondent parties which is then followed by complex and multi-faceted definitions. Buried within the definitions are many contestable assertions, some of which are pleaded “on information and belief”. His various claims styled as “counts” adopt the nomenclature and style of an indictment. Nonetheless, his claims as set out in the 36 pages and 146 paragraphs of the FASOC can be broadly summarised as follows:

(1)    General protections claim against Swinburne for contravention of s 340(1) and, or alternatively, s 351(1) FW Act (Count 1);

(2)    Accessorial liability claims against the Commonwealth Parties, the State Parties, and SEEK for their involvement in Swinburne’s contraventions within s 550 of the FW Act (Count 2);

(3)    An application for judicial review of the TEQSA’s failure to perform its statutory function to investigate or meaningfully engage with his complaint dated 1 December 2024 regarding the quality of the online LLB (Count 3);

(4)    An application for judicial review of VLAB’s failure, and to the extent necessary, the State of Victoria’s failure, to perform its functions under the Admission Rules (Count 4);

(5)    An application for judicial review of Swinburne “statutory governance compliance” concerning the delivery of the online LLB via the model provided by Online Education Services Pty Ltd (OES) (Count 5);

(6)    Relief for misfeasance in public office perpetrated by the Commonwealth, TEQSA, the State of Victoria and VLAB (Count 6); and

(7)    Damages against all respondents at common law for interference with protected professional expression as a form of protected speech (Count 7).

5    Now, the Commonwealth Parties, the State Parties and SEEK have each applied by interlocutory applications for summary judgment or alternatively for the claims against them to be struck out.

6    On 2 April 2026, I made an order that Swinburne is not required to take any further step in the proceeding until further order and I excused it from attending the hearing or making submissions in respect of the interlocutory applications.

WHAT ARE THE CLAIMS?

7    The FASOC describes the complaints as arising “from the same controversy”. However, just what is the controversy is very difficult to understand. Some would say it is impenetrable on the pleading. Doing the best I can, I summarise it as follows.

8    Dr Gussen was employed as a senior lecturer at Swinburne from January 2018 to September 2024. Towards the end of his tenure, Dr Gussen was involved in a disciplinary process related to communications to various stakeholders raising his concerns about the declining academic standard of the online LLB delivered by Swinburne through the OES platform.

9    While OES is not a party to this proceeding it acted as the third-party provider that operated the teaching model used by Swinburne to deliver the online LLB. Dr Gussen’s concerns broadly relate to the impact that the OES has on the number of contact hours, teaching support, assessment administration, marking, moderation, student support and degree-quality functions for students enrolled in the online LLB, which are said to contribute to the diminishing academic standards at Swinburne (OES arrangement).

10    Swinburne made application to VLAB for accreditation of its online LLB in 2021. The online LLB was accredited subject to a reporting obligation, which required the Dean of Swinburne Law School, Professor Amanda Scardamaglia, to provide a report in respect of the operation of third-party teaching arrangements, including the OES arrangement.

11    After receiving a report on 5 December 2023, the accreditation of the online LLB was reviewed by VLAB, through its delegate committee, the Academic Course Appraisal Committee (ACAC). ACAC appoints reviewers who are required to assess and report on the performance of the online LLB having regard to the Law Admissions Consultative Committee's Accreditation Standards for Australian Law Courses as amended in July 2018 (LACC Standards).

12    As part of its review ACAC appointed reviewers, Mr Christopher Roper AM and Emeritus Professor Peta Spender FAAL, who both have extensive experience in the assessment of legal education standards required for admission to the legal profession. On 12 June 2024, the reviewers attended a site visit at Swinburne’s Hawthorn campus, during which they met with members of Swinburne's teaching staff, including Dr Gussen. Subsequently, they produced a report which among other things, recommended re-accreditation of the on-campus LLB and that Swinburne provide a further submission before any decision was made regarding the re-accreditation of the online LLB.

13    ACAC accepted the recommendations and resolved to re-accredit the on-campus LLB course for another five years. It also sought a further submission from Swinburne before making any decision about the re-accreditation of the online LLB.

14    The key communications between Dr Gussen and the respondents in this proceeding include concerns raised during Dr Gussen’s participation in the site visit on 12 June 2024, a letter emailed to VLAB on 18 November 2024, and a letter emailed to TEQSA on 1 December 2024.

15    While there is some disagreement in the parties’ submissions about the characterisations of the complaints made to TEQSA and VLAB, the letters broadly raise concerns related to grade inflation, abuse of academic and integrity processes, and most relevantly to the proceeding, equivalence between on-campus and online units. During the hearing, these were accepted as the key topics of concern in Dr Gussen’s letters.

16    The FASOC also refers to internal communications with Swinburne. As these are not particularised and given Swinburne’s limited involvement in the proceeding at this stage, I have not included them as key communications for the purpose of determining the interlocutory applications. This is also the case for the additional communications raised in the applicant’s submissions, which include written complaints made to TEQSA in August 2019 and August 2024, a submission to an independent whistleblower hotline service (Stopline Pty Ltd) in 2021, and the advancement of teaching excellence material concerning grade inflation or irregularities in 2023, presumably provided to Swinburne.

17    The applicant alleges that the key communications were “protected professional communications” that catalysed Swinburne's adverse action against him, specifically the formulation of serious misconduct allegations and the infliction of workplace injuries. According to the FASOC the serious misconduct allegations were made by Swinburne in writing on 29 July 2024 and 14 August 2024, and the workplace injuries include the imposition of OES-appointed teaching staff, multiplication of assessment burden, inadequate workload allocation, pressure to lower standards, and constraint on integrity and moderation controls.

18    To resolve the disciplinary matter, the parties entered a deed of release pursuant to which Dr Gussen resigned from his employment on 19 September 2024. There is a separate proceeding in this Court which relates to the enforceability of the deed, including a provision that releases Swinburne from all future claims arising from his employment.

Interlocutory applications

19    The first interlocutory application is brought by the Commonwealth Parties seeking an order for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) on the basis that the proceeding has no reasonable prospect of success (r 26.01(a)) or discloses no reasonable cause of action (r 26.01(c)). Alternatively, the Commonwealth Parties seek an order that the claims for relief against them be struck out on the basis the pleading is:

(1)    evasive or ambiguous (r 16.21(c));

(2)    likely to cause prejudice, embarrassment or delay (r 16.21(d)); or

(3)    fails to disclose a reasonable cause of action (r 16.21(e)).

20    Additionally, the Commonwealth Parties seek an order that TEQSA be removed as a party to the proceeding pursuant to r 9.08, and the first respondent’s name be changed to “The Commonwealth of Australia as represented by the Tertiary Education Quality and Standards Agency”.

21    The second interlocutory application is brought by the State Parties seeking an order for summary judgment pursuant to s 31A of the FCA Act and r 26.01 of the Rules. Alternatively, the State Parties seek an order that whole or part of the pleading be struck out on grounds similar to the Commonwealth Parties.

22    The third interlocutory application is brought by SEEK also for summary judgment pursuant to s 31A(2) of the FCA Act and r 26.01 of the Rules on the basis that the proceeding has no reasonable prospect of success or discloses no reasonable cause of action. As with the other respondents, in the alternative, SEEK contends the claims against it should be struck out.

23    There is significant overlap in the submissions of the respondents and the bases for summary judgment or a striking out of the pleading. I deal with the applications seriatim.

COMMONWEALTH PARTIES’ APPLICATION

24    The first issue is whether to make an order substituting the second respondent for “The Commonwealth of Australia as represented by the Tertiary Education Quality and Standards Agency” and removing TEQSA as the fifth respondent.

25    The Commonwealth Parties submit that the TEQSA, as a non-corporate Commonwealth entity within the meaning of s 11 of the Public Governance, Performance and Accountability Act 2013 (Cth), has no separate legal personality from the Commonwealth, which is perfectly correct. Despite that major obstacle, Dr Gussen submitted that TEQSA should not be removed as a party because omitting it does not answer the substance of the claim against the Commonwealth. There is no merit in that submission and TEQSA will be removed.

26    I address next the summary judgment application. The principles are well-understood and ordinarily need not be restated in an application of this type. Nonetheless, for the benefit of Dr Gussen, I provide the following with minimal reference to the authorities.

27    Summary judgment pursuant to s 31A of the FCA Act may be entered where this Court is satisfied that a claim has no reasonable prospect of success. By s 31A(3), a claim does not need to be hopeless or bound to fail to meet this threshold. If there is a real question of triable fact to be determined between the parties, summary judgment is unlikely to be granted. This does not mean that summary judgment will be withheld where there is some factual question to be determined. The fact may be trivial, implausible or improbable. Ordinarily an application for summary judgment is determined by assuming that the facts pleaded (in the case of an applicant) will be established at trial. In some cases, affidavit evidence may be adduced and facts found accordingly where there is no contest.

28    On the Commonwealth’s application several affidavits were read without objection or requirement for cross-examination. For the Commonwealth: Abagail Cooper made on 1 April and 7 May 2026, and Sean Ryan made on 8 May 2026. For Dr Gussen, his affidavit made on 2 June 2026. Importantly for present purposes, Dr Gussen did not dispute any of the evidence set out in the affidavits for the Commonwealth.

29    An applicant for summary judgment carries a heavy burden. It is a serious step to summarily terminate a claim or defence by denying a party a trial on the merits: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24] – [25] French CJ, Gummow J.

30    One must also be conscious of the difficulties faced by litigants in person, particularly when considering a summary judgment application, and balance this with the requirement to provide fairness to all parties by upholding the Rules, particularly in relation to the institution and conduct of proceedings in this Court: Manolakis v Carter [2008] FCAFC 183 at [9]. This includes the requirement in r 16.02 of the Rules, that a pleading must state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial.

31    Dr Gussen makes four broad claims or “counts” against the Commonwealth Parties:

(1)    Count 2: accessorial liability under s 550 of the FW Act for adverse action taken by Swinburne (as alleged in Count 1) on the basis that TEQSA had actual knowledge or was recklessly indifferent to the essential facts constituting harm, and by its conduct, was “involved in” those contraventions;

(2)    Count 3: judicial review of the TEQSA’s decision not to investigate or meaningfully engage with the letter dated 1 December 2024;

(3)    Count 6: misfeasance in public office in respect of acts and omissions by TEQSA in the purported exercise of statutory power; and

(4)    Count 7: interference with protected professional expression for refusing, failing or declining to perform mandatory statutory functions once on notice of Dr Gussen’s “protected professional communications”.

32    Count 2 is contingent on the allegation that Swinburne took adverse action against Dr Gussen by making the serious misconduct allegations and inflicting the workplace injuries after he raised concerns about the academic integrity of the online LLB. It is said that TEQSA (read now as the Commonwealth) was involved in the contravention by “declining, failing and/or refusing to investigate or meaningfully engage with the 1 December 2024 complaint by reference to TEQSA’s statutory functions/powers and the Higher Education Standards Framework (Threshold Standards) 2021, and by directing the Dr Gussen to VLAB, thereby contributing to a regulatory impasse that foreseeably enabled Swinburne to continue and entrench the OES arrangement and workplace injuries.” In short, it is alleged that TEQSA did not properly investigate the complaint filed on 1 December 2024.

33    The pleading of the FASOC at [92] is that the Commonwealth had actual knowledge of or was recklessly indifferent to “the essential facts constituting the primary contraventions pleaded in Count 1”, including the applicant’s identification of the defined workplace rights, his political opinion and the OES arrangement. From that premise, the pleaded contention is that the Commonwealth was involved within the meaning of s 550 of the FW Act by the compendious acts of “enabling, counselling, procuring, inducing and/or being knowingly concerned in the continuation and entrenchment of the OES arrangement and the adverse action pleaded”.

34    Some particulars are then pleaded at [93] for TEQSA and the Commonwealth as follows:

Fifth Respondent (TEQSA): involved by declining, failing and/or refusing to investigate or meaningfully engage with the Applicant’s complaint by reference to TEQSA’s statutory functions/powers and the Higher Education Standards Framework (Threshold Standards) 2021, and by directing the Applicant to VLAB, thereby contributing to a regulatory impasse that foreseeably enabled Swinburne to continue and entrench the OES Arrangement and the Workplace Injuries.

First Respondent (Commonwealth): involved by being knowingly concerned in TEQSA’s acts and omissions, including by oversight responsibility and failure to act once put on notice of third-party delivery and standards risks raised in the Applicant’s complaint.

35    Pursuant to s 550(2) of the FW Act, a person is “involved in” a contravention “if, and only if”, the person has: aided, abetted, counselled or procured the contravention; has induced the contravention; has been in any way, by act or omission, knowingly concerned in the contravention; or has conspired with others to effect the contravention.

36    Derived from criminal law, well settled principles define both the conduct element (engaging in conduct that constitutes the contravention), and the mental element (having actual knowledge of matters that constitute the contravention). They were summarised by Katzmann J in Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (In Liq) (No 3) [2024] FCA 785 at [797] – [807], as follows (citations omitted):

The terms and expressions aiding, abetting, counselling, procuring and knowingly concerned are drawn from the criminal law. The words “aiding” and “abetting” are synonyms. They both mean helping, assisting or encouraging. A person “counsels” the commission of a contravention if the person urges or advises its commission. “Procuring” means taking action to bring about the result. Thus, a person “procures” a contravention if the person causes the contravention to be committed, persuades the principal to commit the contravention, or brings about its commission.

To participate in a contravention and therefore be concerned in it, the person must have engaged in conduct which implicates or involves her or him in the contravention or “assents to or concurs in the conduct which constitutes the contravention”, so that there is a “practical connection” between the person and the contravention.

To be liable, whether by aiding, abetting, counselling or procuring, a putative accessory must intentionally participate in the contravention, which means that the person must know “the essential matters” that go to make up the events.

To be knowingly concerned in a statutory contravention, the person must have been an intentional participant with knowledge, at the time of contravention, of the essential elements constituting it. The person need not know that the elements amount to a contravention. A person may be an accessory without knowing that the conduct in which they are involved is unlawful.

…

Constructive or imputed knowledge is not enough; actual knowledge is required. But wilful blindness, the deliberate shutting of one’s eyes to what is going on, is equivalent to actual knowledge.

37    The Commonwealth submits that Dr Gussen’s claim is hopeless in relation to both the mental element and the conduct element in that Dr Gussen has no realistic prospect of demonstrating TEQSA was “involved” in any contravention of the FW Act by Swinburne, or that the Commonwealth was responsible for an omission of oversight in TEQSA’s handling of his complaint. I accept the submission. The fatal problem with the case is that Dr Gussen did not make a complaint to TEQSA until 1 December 2024 (FASOC [20(iii)]). It is that complaint which is pleaded as the impugned conduct of TEQSA which Dr Gussen contends it declined or failed to investigate (FASOC [93(v)]). The essential facts constituting the primary contraventions as pleaded in Count 1 are all matters that occurred prior to Dr Gussen’s termination of employment by resignation effective from 19 September 2024.

38    There is another fundamental problem for Dr Gussen. The complaint is annexed to the first affidavit of Abigail Cooper. It comprises two pages. In it, Dr Gussen raises his concerns about the quality of the LLB course at Swinburne. He particularises five matters as potentially compromising the integrity of the re-accreditation process which he characterises as “potential bias”. In support he references: (1) endorsement of fake medical certificates; (2) unsubstantiated education access plans; (3) access to textbooks – notably his text on Constitutional Law Questions and Answers; (4) abuse of the academic integrity process relating to an incident concerning plagiarism on 7 August 2024; and (5) equivalence between non-campus and online units. Nowhere in this document is there any reference by Dr Gussen to the matters he now says are the essential facts constituting the primary contraventions in Count 1, including his variously pleaded workplace rights. Accordingly, there is no basis at all to contend that the complaint put TEQSA on notice of any conduct that Dr Gussen now alleges was adverse action.

39    In oral submissions, Dr Gussen attempted to answer these points in two ways. First, to expand the relevant period to include the earlier correspondence with TEQSA dated 29 August 2024, even though this is not pleaded in the FASOC. That difficulty aside, the earlier complaint did not raise the facts now relied on as the adverse action and, in any event, TEQSA suspended an investigation into this complaint on 16 September 2024, following Dr Gussen’s response to TEQSA’s request for further information in which he confirmed that he “would like to withdraw all my concerns” and that he did “not wish to pursue this further”.

40    In submissions, Dr Gussen said that this was not intended as a request for TEQSA to erase the August complaint. Patently that cannot be accepted on the plain objective meaning of his correspondence. For this reason, and despite the gloss Dr Gussen retrospectively places on these words, TEQSA could not be expected to monitor Swinburne for potential adverse action after it received the request to withdraw the complaint in September 2024.

41    The second answer as framed in oral submissions by Dr Gussen is very difficult to follow, especially in the absence of any pleaded material facts in support. It commences with acceptance that Swinburne and OES entered into the OES arrangement in 2011. Thereafter, on an unidentified date, it is reasonable to infer that TEQSA became aware of the OES arrangement because Swinburne was obliged to comply with the Higher Education Standards Framework, particularly by reason of clause 1.6 which obliged Swinburne to comply with applicable State, Territory and Commonwealth laws and regulatory requirements. From that springboard, Dr Gussen submitted that the OES arrangement amounted to adverse action by Swinburne and against all of the academic staff. When Dr Gussen was employed by Swinburne in January 2018, he became subject to that adverse action as structural or systemic conduct engaged in and continued by Swinburne.

42    This new contention is utterly hopeless. The mere formulation of it reveals why: adverse action pursuant to s 340 of the FW Act requires Dr Gussen to establish as an objective fact the workplace right that he contends that he had (or that he has or has not exercised or proposes or proposes not to exercise) and which Swinburne acted to prevent. The reformulation of the claim by Dr Gussen pays no attention to these requirements. Worse still, is the failure to address how some inchoate right that he now asserts is said to have occasioned Swinburne’s adverse action by relevantly, dismissing him, injuring him, altering his position or discriminating against him within the meaning of s 342 of the FW Act. And there is another problem: the inability to articulate how it is said that the Commonwealth was involved in the OES arrangement at any relevant time.

43    The Commonwealth is entitled to summary judgment on Count 1.

44    Count 3 seeks judicial review of TEQSA's decision not to investigate or engage with the December complaint. Dr Gussen pleads at [99(b)] of the FASOC that TEQSA was “required to consider the complaint by reference to its statutory functions and powers, and by reference to identified clauses in the Higher Education Standards Framework.

45    The Commonwealth Parties first submit that Dr Gussen does not have standing to seek judicial review of this decision, as he has no private right which has been affected, nor does he have a special interest in the regulatory functions performed by TEQSA. The bare capacity to receive complaints made by ex-members of tertiary institutions is not a matter which gives rise to a special interest in the outcome of any investigation, and Dr Gussen does not stand to gain any advantage from the proceeding above the advantage conferred on ordinary members of the public.

46    I accept the submission. A person can only bring proceedings to enforce a public duty where their private rights are interfered with or the person has a “special”, “sufficient”, or “real” interest in the subject matter of the proceedings such as to warrant the grant of the relief sought. A material interest is to be distinguished from the satisfaction of righting a wrong, upholding a principle or winning a contest, if the order is made: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [65].

47    I am satisfied that Dr Gussen has no private right, nor does he have special interest in the regulatory functions performed by TEQSA or in upholding the Higher Education Standards Framework. The fact that TEQSA accepts public complaints does not give a complainant a special legal interest in how TEQSA performs its regulatory duties. While Dr Gussen has a personal interest in the outcome of the investigation, this self-stake does not create a legal duty for TEQSA to protect him or support his claim for relief. On its face, the request for declaratory relief is an attempt to vindicate Dr Gussen for a personal grievance, in which TEQSA and by extension, the Commonwealth had a minor regulatory function.

48    There is a further fundamental difficulty. The Commonwealth Parties also submit that TEQSA has no statutory duty to consider complaints received by members of the public under the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act). Instead, it has a discretionary authority to investigate complaints related to higher education providers to ensure they are complying with the relevant legislation and framework. In oral submissions, Dr Gussen accepted that two of the clauses he pleads as imposing an investigative duty are irrelevant to this claim. Of the remaining clauses, he accepted that TEQSA has a discretion but asserts a distinction between that choice and the legal duty to conduct a review. He argues that after TEQSA decides to investigate, it has a statutory obligation to conduct the review lawfully.

49    Dr Gussen’s submission cannot be accepted. He seeks judicial review of a decision made by TEQSA to decline, fail and/or refuse to investigate his complaint. Section 134 of the TEQSA Act relevantly provides for functions and powers of TEQSA:

Functions and powers

(1)    TEQSA has the following functions:

    …

(c)    to investigate whether this Act or this Act's associated provisions have been or are being complied with, including by:

(i)    conducting compliance assessments and quality assessments; and

(ii)    conducting accreditation assessments of accredited courses.

(e)    to collect, analyse, interpret and disseminate information relating to:

(i)    higher education providers; and

(ii)    regulated higher education awards; and

(iii)    quality assurance practice, and quality improvement, in higher education; and

(iv)    the Higher Education Standards Framework.

…

(4)    TEQSA has the power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

50    These general functions and powers confer authority to receive complaints relevant to the statutory charter (and to investigate complaints as received), but there is no duty to investigate. There is no prospect that Dr Gussen will establish at trial the necessary condition to an order for mandamus; that is to compel the performance of an unfilled public duty: R v War Pensions Entitlements Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242.

51    In any event, on the unchallenged documentary evidence, TEQSA has taken steps to investigate the December 2024 complaint. The uncontradicted evidence of Sean Ryan is that after TEQSA received the complaint, its Compliance and Investigations team completed the initial assessment. Such complaints are prioritised according to the risk they pose to integrity or quality of higher education. As Swinburne’s renewal application was then on foot, the complaint was referred to the Re-registration Team on 27 January 2025 and incorporated into the materials to be considered as part of that application. While the Swinburne’s application has been delayed by an administrative backlog, Dr Gussen’s complaint will be considered in the substantive assessment, along with any supporting material provided by Swinburne.

52    Thus, even if there were an investigative duty, it is not unperformed. The Commonwealth is entitled to summary judgment on Count 3.

53    Count 6 claims the TEQSA’s failure to investigate Dr Gussen’s complaint amounts to the tort of misfeasance. As recently observed by Beach and Abraham JJ in Palmer v Shipton [2026] FCAFC 90 at [80] – [82] the tort involves serious allegations of misconduct in public office that must be pleaded “clearly and with specificity”. The pleading of Count 6 is antithetical to this requirement. For example, it is blandly asserted at FASOC [124] that unidentified individuals within TEQSA refused or failed to lawfully consider the December 2024 complaint by reference to unidentified powers or functions. Then at [125] Dr Gussen alleges, “where necessary…on information and belief”, that those TEQSA officers acted with targeted malice, with knowledge or with reckless indifference to their unlawful conduct. These unparticularised allegations fall well short of what is required. Moreover, the tort is not capable of being established by aggregation of the state of mind of various individuals (Palmer at [83]), because it is a tort of personal liability.

54    Mr Barrington for the Commonwealth is correct to describe this claim as hopeless. To the extent that there is any attempt to plead knowledge at FASOC [125] it is confined to conspiratorial conclusions that continued regulatory inaction by TEQSA would foreseeably be relied on by Swinburne “as regulatory cover to continue to entrench the OES arrangement” and would foreseeably expose Dr Gussen “to retaliatory consequences, including disciplinary escalation and employment loss, and professional and reputational harm”. No facts whatsoever are pleaded to support those contentions.

55    The Commonwealth is entitled to summary judgment on Count 6.

56    Finally, there is Count 7 where Dr Gussen pleads that TEQSA’s failure to investigate his complaint establishes a novel cause of action in Australia – a common law right to protect certain kinds of professional expression. The FASOC identifies five elements of this tort, said to be developed from principles set out in international declarations and covenants concerning human rights and civil and political rights, customary international law and comparative common law authority concerned with interference with free speech. The elements of the tort are said to comprise: (1), engagement in protected professional expression of opinion on matters of public or professional importance; (2), the exercise by the defendant of public power, in particular regulatory power, in the relevant field; (3), the defendant intentionally or recklessly subjected the plaintiff to detriment, or maintained conditions causing detriment, for the purpose of punishing, deterring or chilling the protected expression, or with reckless indifference to that effect”; (4), causation; and (5), damage.

57    Dr Gussen acknowledges that the implied freedom of political communications under the Constitution is not a personal right, breach of which sounds in damages. However, on his argument, this itself is “constitutionally significant” and opens as a pathway to recognition of the contended new right by analogy with the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1966 and the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) as establishing “norms [that] form p[art of the legal environment in which Australian common law may develop”. Just how or why that is so was left unexplained by Dr Gussen who as a fall-back submitted that should I find the new right “constitutionally untenable as pleaded” then I should not dismiss the Count. Rather notice should be given pursuant to s 78B of the Judiciary Act 1903 (Cth) for the purpose of having the High Court determine the summary judgment application.

58    The pleading does not contend for an incremental development of existing common law principles. It is a radical and unfounded attempt to state a new cause of action tailored to suit the circumstance of Dr Gussen’s personal grievances. There is no such cause of action known to Australian law, and the purported elements of the claim are formulated with such vagueness and imprecision and cut across so many established principles, that the claim is plainly and manifestly hopeless. It is not a question of Constitutional compatibility. Overall, the claims against the Commonwealth as pleaded in Counts 2, 3, 6 and 7 are hopeless. There is no prospect that Dr Gussen will be able to address the deficiencies by a grant of leave to amend. There will be judgment for the Commonwealth accordingly.

State Parties

59    Dr Gussen pleads four counts against the State Parties. In summary:

(1)    Count 2: accessorial liability under s 550 of the FW Act for adverse action taken by Swinburne (alleged in Count 1) on the basis that VLAB had actual knowledge or were recklessly indifferent to the essential facts constituting harm, and by their conduct, were “involved in” those contraventions;

(2)    Count 4: VLAB failed to perform mandatory functions under rr 7(4) and 8 of the Admission Rules once the applicant had raised concerns about the delivery of Swinburne’s online LLB course;

(3)    Count 6: misfeasance in public office in respect of acts and omissions by VLAB in the purported exercise of statutory power;

(4)    Count 7: interference with protected professional expression for refusing, failing or declining to perform mandatory statutory functions once on notice of Dr Gussen’s professional communications.

60    Without objection or any requirement for cross-examination, the State Parties rely on the affidavit of Kristen Murray made on 27 March 2026, and Dr Gussen relies on his affidavit made on 9 June 2026.

61    Count 2 suffers from the same conceptual problems as I have addressed in dispensing with the s 550 FW Act claims against the Commonwealth because of the rolled-up involvement plea at FASOC [91]. The particulars of involvement of the State Parties are pleaded at FASOC [93]:

Fourth Respondent (VLAB): involved by maintaining the accreditation pathway for Online Mode delivery notwithstanding notice of Non-Equivalent Delivery and displacement of convenor control provided in the 2024 Reaccreditation Process (including the 12 June 2024 meeting), and by failure to lawfully perform monitoring/review functions under r 8 in circumstances where that inaction foreseeably enabled continuation of the OES Arrangement and Workplace Injuries.

Second Respondent (State): involved by being knowingly concerned in, enabling or maintaining VLAB’s acts and omissions, including failure to act once put on notice of systemic risks to admission standards and the foreseeable retaliatory consequences for staff raising those concerns.

62    The uncontroversial facts reveal the insurmountable problem with these claims. Dr Gussen pleads that from at least 2023, Swinburne delivered the online LLB through the OES arrangement: FASOC [27]. He pleads that during his employment he internally raised his concerns and complaints about the delivery of the online LLB, although there is nothing in the pleading which specifies what complaints were made, when and to whom. The pleaded adverse action of Swinburne relates to unspecified and unparticularised conduct and action during the period of his employment; that is between January 2018 and 18 September 2024. On a beneficial reading of the pleading, the adverse action at least included the serious misconduct allegations made in writing on 29 July and 14 August 2024: FASOC [8(o)]. It most certainly included the termination of his employment with effect from 19 September 2024.

63    However, the first allegation capable of connecting VLAB to the matters complained of is that on 18 November 2024, Dr Gussen corresponded with VLAB and raised his concerns about the accreditation of the Swinburne LLB courses, including the OES arrangement: FASOC [72]. For the reasons I have given in relation to Count 2 as pleaded against the Commonwealth, there is a temporal impossibility in the accessory liability claim. Further, for the reasons given in addressing the Commonwealth’s application, the claim is incapable of being salvaged by amendment, including by Dr Gussen’s recently developed theory that adverse action was taken against all academic staff when the OES Arrangement was first implemented in 2011. I am satisfied on those bases that there is no prospect that Dr Gussen will be able to plead a viable claim if granted leave to amend. The State Parties are entitled to summary judgment on Count 2.

64    By Count 4, Dr Gussen seeks declarations and consequential mandatory relief in relation to the performance of VLAB’s functions under the Admissions Rules. Dr Gussen alleges that VLAB failed to perform mandatory functions under the Admissions Rules after he had raised concerns about the delivery of the online LLB both at the re-accreditation meeting on 12 June 2024, and in his 18 November 2024 correspondence. That he raised concerns is not disputed.

65    The State Parties’ raise a preliminary issue: this Court lacks jurisdiction to review the VLAB’s decision because there is no federal matter. Count 4 is aimed at enforcing the Admission Rules as they apply in Victoria pursuant to the Uniform Law. Dr Gussen’s claim attempts to sidestep this issue by asserting that the request for a public law remedy against VLAB arises “from the same controversy”, being the harm resulting from Swinburne’s impugned conduct under the FW Act, therefore invoking the associated jurisdiction pursuant to s 32 of the FCA Act. I very much doubt that. There is considerable force in Mr Solomon-Bridge and Ms C Thorpe’s written submissions for the State Parties that Count 4 is not made under Commonwealth law and the factual basis for it is distinctly different to the involvement claim that is made under s 550 of the FW Act. As submitted for the State Parties:

Count 4 is different. It says nothing about, nor does it rely on, any harm resulting from Swinburne’s impugned conduct. It also relies on a different set of factual allegations against VLAB, because (unlike Counts 2, 6 and 7), it relies not only on VLAB’s alleged failures to perform its statutory functions in light of the applicant’s participation in the meeting on 12 June 2024, but also on VLAB’s alleged failures to perform its statutory functions in light of to the applicant’s correspondence to VLAB on 18 November 2024. Relatedly, while the claims in all four Counts against the State Parties are said to rely on VLAB’s alleged failures to perform its statutory functions, the connection between those alleged failures and the causes of actithon and relief sought in Counts 2, 6 and 7 is confected or, at the least, so remote as to be wholly irrelevant. Count 4, by contrast, seeks public law remedies against VLAB aimed at enforcing the Admission Rules as they apply in Victoria pursuant to the Uniform Law. It follows that the only claim against the State Parties that arises under a Commonwealth law (being Count 2) does not have the same factual or legal basis, nor is it directed to the same relief, as Count 4. The claim in Count 4 is therefore disparate in terms of “what the parties have done, the relationships between or among them and the laws which attached rights or liabilities to their conduct and relationships”, and are, accordingly, not part of the same “controversy”.105 The Court therefore does not have jurisdiction to hear Count 4.

66    However, it is unnecessary to resolve the summary judgment application on that basis. There are other reasons why the application succeeds for this Count. One, is that Dr Gussen does not have standing to seek relief. He has no special interest in upholding the provisions of the Admission Rules which is distinct from any other member of the public. He is no longer employed as an academic at Swinburne. He is unrelated to the relationship between the VLAB and Swinburne. At best, he has an intellectual gripe about declining standards in the teaching of law subjects at his former employer, which is manifestly insufficient: Australian Vaccination-Risks Network Inc v Secretary, Dept of Health [2022] FCAFC 135; (2022) 292 FCR 1 at [30] – [32] and [40].

67    Another reason is that the statutory provisions identified in the FASOC do not impose a duty to perform a function or to exercise a power of the type complained about. At FASOC [104] Dr Gussen identifies various provisions in the legal Admission Rules as imposing mandatory obligations to apply certain standards and to impose conditions to monitor the performance of an accredited law course. However, as he accepted in oral argument, some of these provisions have no application to the facts because they are concerned with the Mutual Recognition requirements in rule 7 of the Admission Rules. Rule 8 contains multiple subclauses concerned with the monitoring and review of accredited law courses. Relevantly it provides:

Monitoring and reviewing accredited law courses and practical legal training providers

(1)    The Board must monitor and may review any aspect of the performance of—

(a)    an accredited law course in providing the specified academic qualifications prerequisite, and

(b)    an accredited practical legal training provider in providing the specified practical legal training prerequisite.

(1A)    A review under subrule (1) may be conducted for the purposes of considering whether—

(a)    to accredit a law course or practical legal training provider, or (b) to impose a condition on, or vary a condition attached to, the accreditation of a law course or practical legal training provider.

(2)    The Board may, after consulting the relevant provider of a law course or practical legal training course—

(a)    appoint one or more persons to conduct a review referred to in subrule (1), and

(b)    determine the terms of reference for such a review.

(3)    A review conducted under subrule (1)—

(a)    in the case of a review conducted for the purposes of considering whether to accredit a law course or practical legal training provider—must take into account any appraisal criteria for law courses, practical legal training courses or practical legal training providers from time to time endorsed for use in other Australian jurisdictions, and

(b)    in the case of any review—may have regard to any other matter it considers material.

68    The problem with Dr Gussen’s claim is that, whilst there is an obligation to monitor the performance of an accredited law course, there is no mandatory provision as to what must be done and when, save for that a review may be undertaken in accordance with subrule (3). The absence of a mandatory monitoring requirement is fatal to the claim for mandamus and associated declaratory relief as contended at FASOC [109].

69    For these reasons, there is no reasonable prospect that Count 4 can succeed against the State Parties. Once again, I am satisfied that no amendment can cure these defects and they are entitled to summary judgment.

70    As to Count 6, the pleading of misfeasance in public office is that VLAB should have foreseen that its inaction enabled the continuation of the OES arrangement and Dr Gussen’s workplace injuries: FASOC [125]. The pleading is rolled up with the same allegations against the Commonwealth Parties, suffers from the same manifest defects, and for the same reasons is hopeless.

71    There is however a variation relating to the 12 June 2024 meeting and concerns then raised by Dr Gussen. The pleading is structured as follows. Unparticularised complaints are said to have been made by Dr Gussen about non-equivalent delivery, the displacement of convenor control and EA-regulated teaching and assessment functions within the delivery of the online LLB: FASOC [61]. From there, the pleading at FASOC [124] is that for the reasons in Count 4, VLAB failed to perform mandatory functions under the Admission Rules in relation to “substantial equivalence and monitoring/review and thereby acted unlawfully”. The reference to Count 4 does not assist this pleading for the reasons above.

72    The pleading of malice at FASOC [125] is nothing more than a bald assertion that “relevant public officers” (who are not identified) “acted with targeted malice and/or with knowledge of unlawfulness or reckless indifference to unlawfulness” and that injury to Dr Gussen “was a probable consequence”. The sub-particulars to this paragraph make various assertions that officers of VLAB were “on notice” of Dr Gussen’s status as a legal academic who had raised concerns about academic integrity, that continued regulatory inaction “would foreseeably be relied upon by Swinburne” as “regulatory cover to continue and entrench” the online mode settings and constraints, that “continued regulatory cover would foreseeably expose Dr Gussen to retaliatory consequences, including disciplinary escalation and employment loss and professional and reputational harm” and notwithstanding such notice they acted unlawfully and/or with reckless indifference.

73    This pleading is manifestly hopeless. There is a complete failure to come to grips with the necessary material facts that must be pleaded to establish a claim of misfeasance in public office. There are no specifically pleaded material facts that identify what public power was misused, when and by whom, or how the alleged conduct was undertaken maliciously, knowingly in excess of power, or with deliberate blindness: Nyoni v Shire of Kellerberrin [2017] FCAFC 59; (2017) 248 FCR 311 at [81], [158] and [159].

74    There is no prospect that Count 6 can succeed against the State Parties and no prospect that leave to amend can address the fundamental difficulties with the claim.

75    Finally, as to Count 7, it cannot be made out against the State Parties for the same reasons I have given in relation to the corresponding claim against the Commonwealth Parties.

76    Overall, my conclusion is that the entire pleaded case against the State Parties is hopeless and there is no prospect that any reasonable cause of action may be resurrected and pleaded from the facts that Dr Gussen sets out. As such, this is not an occasion to grant any liberty to replead. There will be summary judgment for the State Parties on the entire claim.

SEEK

77    Dr Gussen makes two broad claims or “counts” against SEEK:

(1)    Count 2: accessorial liability under s 550 of the FW Act for being knowingly involved in Swinburne’s contraventions;

(2)    Count 7: interference with protected professional expression.

78    SEEK relies on the affidavit of Benjamin Kiely made on 14 May 2026 and Dr Gussen relies on his affidavit made on 17 June 2026. Each was read without objection or any requirement for cross-examination.

79    The claims against SEEK are manifestly hopeless for factual and legal reasons.

80    The FASOC alleges that from the period around 2023 onwards, Swinburne delivered units in the online LLB through the OES arrangement, and that by maintaining a direct or indirect controlling equity interest in OES and its operating model at all material times, coupled with profit incentives that contributed to the continuation and entrenchment of the OES arrangement, it was involved in Swinburne's adverse action: FASOC [7], [27], [28], [30] and [93(i)]. These matters are pleaded “on information and belief”.

81    The pleaded facts are false. The unchallenged evidence of Mr Kiely is that SEEK previously held an indirect ownership interest in OES, via a wholly owned subsidiary, but ceased to hold such an interest in October 2021. In connection with a strategic restructure, all shares in OES were sold to a corporate trustee company, which is the trustee of the SEEK Growth Fund, an independent unit trust. SEEK does not control the Fund’s Board, or its manager. Moreover, SEEK does not continue to hold shares in OES, nor has it had any power, since October 2021 to appoint or remove any director or senior executive of OES or to influence OES’ strategy, budgets or performance settings.

82    These facts were set out in correspondence from Mallesons solicitors to Dr Gussen dated 30 March 2026. He was invited to discontinue the proceeding against SEEK with no order as to costs, otherwise he was warned that SEEK reserved its rights to proceed with an application for summary judgment and for costs. Rather than acknowledge that these claims had no factual basis, Dr Gussen’s response of 31 March 2026 was argumentative. He declined to accept the offer to discontinue. He foreshadowed more amendments “so that SEEK’s role in the relevant factual matrix be stated with greater precision”. He did not make that application.

83    I accept the uncontested evidence of Mr Kiely. The factual basis for the Count 2 accessory liability claim against SEEK is false and the claim is devoid of merit.

84    Moreover, and in any event, the claim as pleaded at FASOC [88] – [93] fails to reveal how SEEK with a “controlling interest” in OES can in consequence be made liable pursuant to s 550 of the FW Act. I accept the written submission of SEEK’s counsel, Ms Mintz:

It is also a peculiar feature of the way Dr Gussen brings his case that the entity that actually provided the OES Arrangement, OES, is not a party, demonstrating the particularly abstract and unintelligible case brought against SEEK.

Imagine this scenario: an employee plumber does not like using a power tool that his employer has purchased. He complains about the power tool. He alleges that the employer took adverse action as a result of his complaints. He sues the part owner (of the owner) of the power tool company alleging that it was knowingly involved in his employer’s adverse action by virtue of selling the tool to his employer. That would obviously be a hopeless case. But is conceptually similar to how the case against SEEK has been framed.

85    This submission succinctly exposes how hopeless Count 2 is against SEEK.

86    However, there are other reasons. There is nothing in the pleading which addresses the actual knowledge requirement of the essential matters comprising the adverse action that Dr Gussen contends was taken. That is, the pleading is devoid of any attempt to explain Dr Gussen’s political opinions, or how it is that SEEK had knowledge of the asserted workplace rights, the exercise of those rights or the asserted workplace injuries. The entire pleading of accessory liability is unintelligible. Count 2 has no prospect of success against SEEK, and there is no basis to believe that leave to amend would have any utility.

87    That leaves Count 7 which is hopeless for the reasons above.

88    SEEK is entitled to summary judgment on Counts 2 and 7. Further, I am satisfied that there is no prospect whatsoever that these manifest deficiencies could be remedied if leave were granted generally to Dr Gussen to replead.

Associate:

Dated:    7 August 2026

SCHEDULE OF PARTIES