Federal Court of Australia

Gussen v Momentum Media Pty Ltd [2026] FCA 1091

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the Applicant on 12 June 2026 be dismissed.

2.    The Applicant pay the Respondents’ costs of the application.

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

REASONS FOR JUDGMENT

ANDERSON J:

1    The applicant (Dr Gussen), by interlocutory application filed on 12 June 2026, seeks, pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth), a review of Order 2 made by Senior Judicial Registrar Ellis on 26 May 2026, which refused leave to Dr Gussen to issue a subpoena to the second respondent, Ms Naomi Neilson, to attend to give evidence during the trial (the subpoena).

Background

2    In these proceedings, Dr Gussen has sued the respondents for defamation arising out of two substantially identical articles published in Lawyers Weekly and HR Leader (the matters). Ms Neilson is the journalist who wrote and published the articles. Her employer, Brass Neck Pty Ltd (formerly Momentum Media Pty Ltd) (the first respondent), also published the articles.

3    Dr Gussen was formerly employed as a senior lecturer at Swinburne University.

4    On 18 September 2024, in connection with a disciplinary process commenced by Swinburne, Dr Gussen and Swinburne entered into a deed of release by which Dr Gussen resigned from his employment and released Swinburne from, amongst other things, claims arising out of the circumstances recited in the deed and the disciplinary process.

5    On 7 October 2024, Dr Gussen commenced a general protections proceeding in the Fair Work Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) alleging he was dismissed by Swinburne in contravention of Part 3-1 of the Fair Work Act (‘general protections’). The FWC dismissed the application on the basis that Dr Gussen had not been dismissed within the meaning of the Fair Work Act (FWC Decision): Gussen v Swinburne University of Technology [2024] FWC 3316.

6    Dr Gussen then appealed the FWC Decision to the Full Bench of the FWC (FWC Appeal Proceedings): Gussen v Swinburne University of Technology [2025] FWCFB 17.

7    On 11 February 2025, the Full Bench refused permission to appeal. The Full Bench did not consider Dr Gussen had advanced an arguable case that the FWC Decision was attended by appealable error and did not consider that the appeal raised issues in the public interest as it did not raise any genuine issue of law, principle or wider application (FWC Appeal Decision).

8    The matters published by the respondents reported on the FWC Appeal Proceedings.

9    The current versions of the pleadings are an amended statement of claim filed on 24 September 2025, an amended defence filed on 21 July 2026, and a reply filed on 3 October 2025. Dr Gussen has since filed an amended reply on 2 August 2026.

10    Dr Gussen claims that the matters conveyed the following imputations:

(a)    Dr Gussen “falsely claimed misconduct allegations and dismissal were set aside, when he resigned to avoid them”;

(b)    Dr Gussen “acted opportunistically by commencing FWC proceedings soon after signing a deed of release”;

(c)    Dr Gussen “improperly sought to reopen finally settled matters”;

(d)    Dr Gussen “brought and lost an unfair dismissal claim”;

(e)    Dr Gussen’s “fraud allegations against Swinburne were baseless and discredited”;

(f)    Dr Gussen “misled the public and profession by asserting public interest when none existed”;

(g)    Dr Gussen “pursued frivolous or vexatious proceedings”;

(h)    Dr Gussen “is untrustworthy and acted in bad faith by litigating after the deed”;

(i)    Dr Gussen’s “whistleblowing and claims were insincere and self-serving”;

(j)    Dr Gussen’s “case was an unfair dismissal application rather than a general protections claim”;

(k)    Dr Gussen’s “case lacked any arguable merit on appeal”; and

(l)    Dr Gussen “acted dishonestly in commencing litigation after signing the deed”.

11    Dr Gussen pleads in his amended statement of claim that the matters “were accessible to members of the public in Australia, including but not limited to students, colleagues, and members of the legal profession”. This contention is admitted by the respondents. The pleadings also identify the relevant act as the Defamation Act 2005 (Vic) (the Act).

12    The issues which will need to be determined at trial can be distilled as follows:

(a)    whether any of the pleaded imputations are conveyed by the matters;

(b)    if the imputations set out above at (b), (d), (j) and/or (k) are found to have been conveyed by the matters, whether those imputations are defamatory (the respondents admit that the remaining imputations, if conveyed, are defamatory);

(c)    whether the publication of the matters has caused, or is likely to cause, serious harm to Dr Gussen’s reputation (considering the FWC Decision and FWC Appeal Decision were already in the public domain);

(d)    whether Dr Gussen has and continues to suffer serious hurt, distress and economic loss;

(e)    whether the respondents have established a defence of fair summary of a public document or fair report of proceedings of public concern pursuant to ss 28 and 29 of the Act and if so, whether Dr Gussen has defeated those defences by proving that the matters were not published honestly for the information of the public or the advancement of education; and

(f)    what relief, if any, Dr Gussen is entitled to, including general and aggravated damages, declaratory and injunctive relief.

13    There is also a further issue. In his amended statement of claim, and reply, Dr Gussen pleads that the imputations were false and goes on to plead the position “in truth and in fact”. However, the respondents have not pleaded the defence of justification, and say that the falsity of the imputations does not arise as an issue for determination.

14    On 27 January 2026, I fixed the trial on a joint estimate of two days in September 2026.

15    On 30 April 2026, the applicant provided notice to the respondents for the first time that he would be seeking to subpoena Ms Neilson to give evidence.

16    The current witnesses to give evidence at the trial are:

(a)    Dr Gussen;

(b)    Tamara Talmacs (an employee of the Australian Catholic University who is being subpoenaed by the applicant to give evidence, and whom the applicant expects to give evidence about why ACU did not hire him after publication of the matters); and

(c)    Ben Rudgley (a solicitor of the respondents who has sworn a short affidavit deposing to the availability of the FWC Decision and the FWC Appeal Decision on the Internet).

17    On 26 May 2026, after hearing from the parties, Registrar Ellis refused Dr Gussen leave to issue the subpoena.

Principles

18    A review pursuant to s 35A(6) of the Federal Court Act is a hearing de novo “in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo”: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [17] (Allsop CJ, Markovic and Colvin JJ). The review does not hinge, or focus upon, error in the decision of the registrar. That being so, there is no need to consider the conduct of the hearing before Registrar Ellis or her reasons for making the order.

19    Rule 24.01(1) of the Federal Court Rules 2011 (Cth) provides that a subpoena may be issued only with leave of the Court.

20    The principles relevant to the grant of leave are well-established. In particular, it is well-established that there must be a legitimate forensic purpose in issuing the subpoena. A legitimate forensic purpose is demonstrated by apparent relevance: that is, the evidence sought could reasonably be expected to throw light on a fact in issue in the proceeding and not simply whether the material might permit a case to be made. Another way of putting that is, whether the material sought might “reasonably add in the end, in some way or other, to the relevant evidence in the case”; the material’s relevance must be more than “merely conjectural”: Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31 at [3]-[4] (Perram J). I also respectfully adopt the following observations of Mortimer J (as her Honour then was) in Spencer v Commonwealth [2014] FCA 1234 at [13]:

As a starting point, I accept with respect the position adopted by Bromberg J in Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622 at [28] that it is generally appropriate where there is a real question as to leave to issue a subpoena for the decision as to leave to adopt the approach which would be taken on an application to set aside a subpoena. In most circumstances, the lawful basis for a subpoena, whether as a proposed exercise of coercive power to give evidence, or as an actual exercise of coercive power to give evidence, should be approached in the same way.

This was the approach taken by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35], in relation to leave to issue a subpoena as to documents. There may be some distinctions in relation to witnesses in terms of discretionary considerations but in principle the approach is the same. With respect, I consider the matters outlined by his Honour at [35] represent the key considerations.

21    The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 at [11] (Jacobson, White and Gleeson JJ). A court’s refusal to issue a subpoena is an aspect of a court’s power to supervise and control the proceedings before it: Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 at [20] (Bromberg J). It must be exercised consistently with s 37M of the Federal Court Act. Section 37M requires the facilitation of the “just resolution” of the dispute; it does not require that a party be permitted to raise any arguable case at any point of the proceedings nor does it require a court to permit a party to call a witness at any point in the proceedings: Comcare v John Holland at [22].

Consideration

22    I will not grant leave to issue the subpoena because Dr Gussen has not discharged his onus to demonstrate the subpoena has a legitimate forensic purpose.

23    Dr Gussen submits that if he receives leave to issue the subpoena, he will ask Ms Neilson about the source or provenance of particular words and framing in the two matters complained of, namely:

(a)    the headlines and standfirsts;

(b)    the words “unfairly ended”, “pushed out” and “says” (which the applicant submits attributes statements to him);

(c)    the framing of the deed of release; and

(d)    whether those matters were sourced from the FWC Appeal Decision, the FWC Decision, a Fair Work Commission alert or summary, a third-party communication, or the respondents’ own editorial framing.

24    Dr Gussen submits that the source or provenance of these words and framing is relevant to the following issues:

(a)    whether the publications fairly reported the FWC Appeal Proceedings;

(b)    whether the central sting was drawn from the FWC material or introduced by editorial framing; and

(c)    whether, for the purposes of s 29(3) of the Defamation Act 2005 (Vic), the publications were honestly published for the information of the public or the advancement of education.

25    In essence, Dr Gussen submits that it is relevant to the respondents’ defence of fair report under s 29(1) of the Act whether the content of the matters was drawn from the FWC Decision and the FWC Appeal Decision, or some other source.

26    These submissions misunderstand the law and the applicant’s pleaded case. The submissions proceed on the false premise that a defence under s 29(1) depends on the editorial process employed and the source material used. It does not.

27    Section 29 of the Act is, relevantly, as follows:

29 Defences of fair report of proceedings of public concern

(1)    It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

(2)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was, or was contained in, an earlier published report of proceedings of public concern; and

(b)    the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and

(c)    the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

(3)    A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4)    In this section—

proceedings of public concern means—

…

(e)    any proceedings in public of a court or arbitral tribunal of any country.

28    By their amended defence, the respondents allege that the matters were and are a fair report of the proceedings which culminated in the FWC Decision and the FWC Appeal Decision. The proceedings were proceedings in public of an arbitral tribunal, and therefore, were proceedings of public concern for the purpose of s 29 of the Act. For completeness, the respondents also plead a defence under s 28 of the Act, being that the matters were fair summaries of the FWC Appeal Decision. Section 28 includes an identical subsection (3) – that is, the defence may be defeated if Dr Gussen establishes defeasance.

29    Whether the respondents establish the defence under s 29 turns solely on a comparison of the matters to the FWC Appeal Decision. The evaluation of whether the matters are a fair report of the FWC Decision and the FWC Appeal Decision is taken from the position of the ordinary reasonable viewer seeing the matters as a whole: Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [159] (Abraham J). “To be fair and accurate, a report need not be a complete report or be accurate in every respect; it must be substantially accurate. This is a question of fact”: Nassif at [159], citing Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [42], and see Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 at [182] (Campbell J), upheld on appeal in Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260 (Bell P, Macfarlan and Payne JJA). There may be errors in the summary, but the protection of the defence will not be lost unless there is a “substantial misrepresentation of material fact which is prejudicial to the [applicant’s] reputation”: Feldman at [185], Nassif at [159], Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2017] NSWSC 657 at [102] (Rothman J).

30    Therefore, the source or provenance of the matters is irrelevant to the respondents’ establishing the defence. Either the matters are fair summaries and/or reports or they are not. As counsel for the respondents, Mr Smartt submitted orally, “the error in the application is to view fairness as fairness about the process rather than fairness of the summary”.

31    To frame it another way, if Ms Neilson gave evidence that the source of the matters was the FWC Decision and the FWC Appeal Decision, that would not determine whether the defence has been established. A report is required to indicate, expressly or impliedly, that it is a report of the proceedings, a “matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings”: Herron v Harpercollins Publishers Australia Pty Ltd (No 3) [2020] FCA 1687 at [869] (Jagot J), quoting Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at [18] (Gleeson CJ).

32    The defence of fair report (and fair summary) will be defeated if Dr Gussen proves that the matters were not published honestly for the information of the public or the advancement of education. The requirement in s 28(3) and s 29(3) that the court consider what the publication was “for” raises the question of the publisher’s motive or purpose and “looks to the effect … the [respondent] intended the matter to have on the minds of its recipients”: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325 at [236] (McColl JA, Beazley P agreeing at [1] and Simpson AJA agreeing at [263]).

33    However, the source or provenance of the impugned words and framing is irrelevant to Dr Gussen’s pleaded case on this issue. That case is pleaded in the amended reply at [7]-[14]. The closest the amended reply comes to this issue is to allege that the headlines attribute words to the applicant that he did not say and the omission of certain context, an issue to which Ms Neilson’s proposed evidence is irrelevant. Dr Gussen pleads, in particular at [13] of his amended reply that the intended result sought by the respondents was for readers to understand that Dr Gussen “said or maintained that Swinburne had unfairly ended his employment or pushed him out, and would understand the Commission proceeding as an unsuccessful unfair-dismissal case”, and that this was “an adverse editorial narrative created by the respondents”. It is not clear to me how Ms Neilson’s evidence would materially assist the Court in respect of this matter – this plea seems to me to be in substance a repetition of Dr Gussen’s assertion that the matters are not fair reports or fair summaries because they do not accurately reflect the FWC Appeal Decision. This will be answered by a comparison between the matters and the FWC Appeal Decision (and the FWC Decision).

34    In oral submissions, Dr Gussen framed Ms Neilson’s evidence as relevant to his reliance on the “false attribution” of certain statements to him in the matters (in particular, in each title). Dr Gussen said “the live forensic issue is whether these words were attributed to Dr Gussen and if so, how did the author attribute these words to him”, and that this will “bear on both s 29(1) the objective test, as well as on s 29(3), in terms of the subjective test”.

35    Mr Smartt said, “nowhere in the reply as it currently stands or in any of the evidence is there articulation of how [the respondents] sourcing things from allegedly outside the [FWC Appeal Decision] is a fact that goes to their purpose”. Further, Mr Smartt submitted, the respondents’ purpose is unidentified by Dr Gussen and, therefore, the Court cannot be satisfied that the questions Dr Gussen wishes to put to Ms Neilson will be relevant to the respondents’ purpose. I am not satisfied that Dr Gussen’s amended reply cures this issue – Dr Gussen merely alleges that the matters contain material extraneous to the FWC Appeal Decision and, therefore, infers the alleged purpose which I have mentioned above. In my view, the respondents’ purpose remains insufficiently identified by Dr Gussen.

36    As Feutrill J stated in Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [24]:

It has long been accepted that allegations of fraud, unlawfulness, illegality, criminality, professional misconduct or other serious impropriety must be clearly and completely pleaded and particularised: Davy v Garratt [1877] 7 Ch D 473 at 489; Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 at 573; Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291 at [605] – [606]; Oldfield v Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 at [35] – [38]; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at [26]. Making allegations of impropriety, in the absence of complete material facts supporting the allegations, is a basis for striking out a pleading as scandalous: Manolakis v Carter [2008] FCA 505 at [12] upheld on appeal in Manolakis v Carter [2008] FCAFC 183 at [28]; Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9].

37    As a result, the applicant has not demonstrated that his proposed questions of Ms Neilson are relevant to any issue in dispute. That being so, he has failed to establish that the subpoena has a legitimate forensic purpose.

38    The applicant’s application is dismissed, and the applicant will pay the respondents’ costs of the application.

Associate:

Dated:    10 August 2026