Federal Court of Australia

Gussen v Commonwealth of Australia as represented by Tertiary Education Quality and Standards Agency (No 2) [2026] FCA 1313

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 43(1) of the Federal Court of Australia Act 1976 (Cth), the applicant must pay the costs of the proceeding for:

(a)     the first respondent (including the costs of the fifth respondent up to 7 August 2026, when orders were made removing the fifth respondent and updating the name of the first respondent);

(b)    the second and fourth respondents; and

(c)    the sixth respondent.

2.    The costs payable to the first, second, fourth and sixth respondents pursuant to order 1 be awarded as a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).

3.    A Registrar of the Court is to determine the amount of the respondents’ costs in such manner as the Registrar deems fit and shall then make an order fixing the amount of those costs, which are to be payable within 28 days of such orders.

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

REASONS FOR JUDGMENT

MCELWAINE J

1    For the reasons published on 7 August 2026, summary judgment was entered in favour of each of the first, second, fourth and sixth respondents: Gussen v Commonwealth of Australia as represented by Tertiary Education Quality and Standards Agency [2026] FCA 1088 (primary reasons or PJ). I made consequential orders for determination of any application for costs on the papers.

2    Now, the relevant respondents, being the Commonwealth of Australia as represented by the Tertiary Education Quality and Standards Agency (Commonwealth), the State Parties (the State of Victoria and the Victorian Legal Admissions Board) and SEEK Ltd, each apply for costs orders by written submissions. Dr Benjamen Gussen (Dr Gussen) has provided responding submissions in respect of the three applications.

3    Dr Gussen’s primary claim is against Swinburne University of Technology for alleged contraventions of s 340(1) and, or alternatively, s 351(1) of the Fair Work Act 2009 (Cth). The claims against the Commonwealth, the State Parties and SEEK included claims of accessorial liability for involvement in Swinburne’s alleged contraventions, as well as claims for misfeasance in public office, declaratory relief, and relief in respect of an asserted common law right described as “interference with protected professional expression”.

4    The costs applicants accept that s 570 of the Act applies but variously submit that the exceptions are engaged in that the proceedings were instituted “vexatiously or without reasonable cause” (s 570(2)(a)), or that Dr Gussen’s conduct amounts to unreasonable acts or omissions which have caused the applicants to incur costs (s 570(2)(b)). I deal with the applications seriatim.

Commonwealth Parties

5    The submission is that Dr Gussen instituted the proceeding without reasonable cause. It is accepted that the relevant question is whether the proceeding had reasonable prospects of success at the time it was instituted, not whether it ultimately failed.

6    The question of whether the proceeding was instituted without reasonable cause is readily answered by the reference to the primary reasons. I found Dr Gussen’s claims against TEQSA to be hopeless: PJ at [58]. The following difficulties in the claims against TEQSA should have been apparent to a reasonable person in Dr Gussen’s position from the outset. There were obvious fundamental deficiencies in the pleading which were not adequately addressed at the hearing of the interlocutory application, and were not capable of correction by amendment to the pleading:

(1)    The temporal impossibility of TEQSA having the requisite mental and conduct elements of the accessorial liability claim under s 550 of the Act, given that Dr Gussen lodged the relevant complaint with TEQSA on 1 December 2024, more than two months after his resignation from Swinburne on 19 September 2024 (PJ at [37]);

(2)    Lack of standing to seek judicial review of TEQSA’s internal handling of the complaint, which, in any event, amounted to no more than the exercise of its general power and function to receive and investigate complaints – a function that TEQSA performed upon receiving Dr Gussen’s complaint of 1 December 2024 (PJ at [46] and [50] – [52]);

(3)    The failure to plead the state of mind of the officers alleged to have acted with targeted malice, knowledge or reckless indifference to their unlawful conduct in handling Dr Gussen’s complaint said to give rise to a tort of misfeasance in public office (PJ at [53 and [54]); and

(4)    An attempt to develop the common law with respect to a right to “protected professional communications” which was formulated with “such vagueness and cut across so many established principles, that the claim was manifestly hopeless” (PJ at [58]).

7    Dr Gussen contends that the appropriate order is that each party should pay their own costs or, if an order for costs is made, it should be on the standard basis and “confined to respondent-specific, non-duplicative costs” after the Commonwealth was joined on 10 February 2026.

8    His submissions in support may be summarised as follows:

(1)    Each of the claims or “counts” as they were referred to in the pleading, should be assessed separately and prospectively, as was done in Rindeklev v Commonwealth of Australia (No 3) [2026] FCA 1112, with the effect that regardless of whether Counts 6 and 7 were legally defective, that does not establish that Count 3 or the entire case was instituted without reasonable cause;

(2)    The allegations concerning the OES arrangement were pleaded from the outset and were genuine as opposed to something invented at the hearing of the interlocutory application, and the claim should not be considered as frivolous or vexatious for lacking any evidentiary basis;

(3)    Although it was found that he lacks standing, that TEQSA had no compellable duty, and that TEQSA performed its discretionary investigative function (PJ at [46] – [52]), those findings do not demonstrate that the broader issues related to the OES arrangement were baseless;

(4)    Counts 1 and 5 against Swinburne were not adjudicated on their merits and TEQSA’s success on its “respondent-specific duty” does not demonstrate that the OES controversy underpinning those counts was fictitious or an abuse of process;

(5)    Relying on Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118; (2023) 171 ACSR 176 (at [14] – [20]), he submits that TEQSA understood and responded to the allegations concerning the OES arrangement, sought no further “explanation, an adjournment, further evidence or supplementary submissions, and identified no concrete forensic prejudice”, indicating the claim was reasonably arguable;

(6)    Relying on Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27; (2023) 278 CLR 571 (at [1] – [6]), he submits that a systemic outsourcing arrangement may itself constitute adverse action, such that Count 1 was not instituted without reasonable cause; and

(7)    Relying on B.M.D. Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 4) [2026] FCA 1037 (at [33] – [42]), he submits that even manifestly inadequate pleadings do not, without more, enliven s 570(2) of the Act, and that his pleading was supported by a factual and regulatory foundation.

9    Alternatively, Dr Gussen submits that any costs order should be limited to work attributable to claims separately found to have been instituted vexatiously or without reasonable cause and should exclude work relating to Counts 1 and 5, pre-joinder work, duplicated work across respondents, and Count 3 unless it is specifically found to lack reasonable cause.

10    Finally, Dr Gussen submits that claims against each of the Commonwealth (and likewise the State Parties and SEEK) are contingent on a finding of accessorial liability for Swinburne’s adverse action, and that since the counts against the university have not been adjudicated, the contingent claims of accessorial liability cannot be characterised as having been instituted without reasonable cause.

11    Each submission of Dr Gussen overlooks a fundamental feature of the pleaded case. Regardless of whether Swinburne is found to have contravened the Act, Dr Gussen was required to plead facts capable of establishing that the Commonwealth was knowingly involved in the alleged contravention. It was this aspect of the claim, which for reasons identified in the primary reasons, was hopeless on the facts pleaded in the amended statement of claim.

12    The deficiencies outlined in paragraph [6] are not merely defects in a manifestly inadequate pleading. They are fundamental factual defects in the claims against the Commonwealth that were incapable of cure by amendment. The difficulty is not confined to the pleaded period in which the requisite knowledge is attributed to TEQSA. Rather, the chronology itself demonstrates the claim is impossible.

13    Dr Gussen resigned from Swinburne before the relevant complaint was made to TEQSA, and therefore before TEQSA could possibly have acquired knowledge of the alleged adverse action. It follows that, on the facts pleaded, TEQSA could not have possessed the requisite knowledge or engaged in the requisite conduct to establish accessorial liability before the resignation took effect. Extending the pleaded period cannot overcome that insuperable difficulty. The complaint against TEQSA was therefore instituted without reasonable cause.

14    Of course, a finding that a party has instituted proceedings without reasonable cause is not a conclusion reached lightly; however, it is satisfied here. The claim against TEQSA was not merely inadequately pleaded. It lacked a proper factual foundation and was incapable of succeeding on the facts alleged. In those circumstances, Dr Gussen ought reasonably to have appreciated, at the time the proceeding was commenced, that the claim had no reasonable prospects of success.

15    Further, the Commonwealth put Dr Gussen on notice of its intention to seek its costs of the application for summary judgment if successful. It subsequently succeeded on both the interlocutory application and the proceeding as a result of the summary judgment entered in its favour.

16    I am satisfied that the proceeding was instituted against the Commonwealth without reasonable cause, thereby enlivening the discretion to award costs. Nor do I accept Dr Gussen’s submission that any costs order should be limited or apportioned. Any issues of duplication, to the extent they arise, can be addressed upon assessment. Accordingly, it is appropriate for Dr Gussen to pay the Commonwealth’s costs of the proceeding, including its interlocutory application of 1 April 2026.

The State Parties

17    The State Parties make an application for costs on the grounds that “Dr Gussen instituted the proceeding without reasonable cause and/or acted unreasonably in making his amended claims against the State parties, causing them to incur costs”.

18    In response to the State Parties’ costs application, Dr Gussen largely repeats the foregoing submissions and contends that each party should bear its own costs. In summary, he submits that:

(1)    Consistently with Rindeklev, the original pleading, subsequent amendments and oral explanations should be assessed separately and prospectively;

(2)    The claim against VLAB had an objective factual and statutory foundation based on the material submitted by Dr Gussen concerning the online delivery model and the continuing reaccreditation process;

(3)    The controversy concerning the OES arrangement was genuine and not fanciful, arising from an actual outsourcing model;

(4)    Although the pleading ultimately failed because of a temporal limitation, the June 2024 VLAB meeting and continuing reaccreditation process provided an arguable basis for the claim when commenced; and

(5)    His foreshadowed application for leave to appeal my orders demonstrates that the principal findings remain contested and that the costs issue should be considered independently under s 570 of the Act.

19    Alternatively, Dr Gussen submits that if a costs order is made, it should be confined to standard, respondent-specific and non-duplicative costs shown to have been caused by a claim, act or omission, separately found to satisfy s 570 of the Act.

20    Without restating the considerations relevant to the exercise of discretion to award costs, the primary reasons make it clear that the claims lacked merit from the outset. On the face of the evidence before the Court at the hearing of the interlocutory application, it was clear that:

(1)    The first allegation said to connect VLAB to Swinburne’s alleged adverse action founding the accessorial liability claim under s 550 of the Act concerned the matters complained of in the correspondence dated 18 November 2024; this post-dates Dr Gussen’s resignation from Swinburne by approximately two months, and like the allegation against the Commonwealth, is temporally impossible (PJ at [63]);

(2)    This Court lacks jurisdiction to review VLAB’s decision because any error in the application of Victoria’s legal admission rules does not arise under federal law, nor is it connected to a federal matter; Dr Gussen does not have a special interest in upholding the relevant rules; and in any event, there is no statutory duty for VLAB to perform a particular function or exercise a type of power that Dr Gussen complains about (PJ at [65] – [67]); and

(3)    None of the allegations were capable of establishing dishonesty or recklessness on the part of the State Parties (or any individual representing them) with the result that the claims of misfeasance in public office and breach of any common law right to protected professional communications (assuming such a cause of action exists) could not be made out (PJ at [73] and [75]).

21    The State Parties submit that although Dr Gussen may feel deeply aggrieved, it cannot make a difference to the determination of whether the claims were made without reasonable cause or whether Dr Gussen acted unreasonably causing the State Parties to incur costs. I accept that submission. It is appropriate for Dr Gussen to pay the State Parties’ costs of the proceeding, including their interlocutory application of 1 April 2026. Again, any issue of duplication can be addressed upon assessment.

SEEK

22    SEEK’s primary position is that it should be awarded costs on an indemnity basis because the relevant information was readily available from publicly available material, such as an ASX announcement and company searches. Moreover, the error was explained to Dr Gussen in a letter dated 30 March 2026, which enclosed supporting documents and invited him to discontinue the proceeding, failing which it “reserves its rights to seek appropriate relief … including an application for summary judgment and for costs”. However, the correspondence did not contain the usual warning that indemnity costs would be sought pursuant to the Calderbank principles: Calderbank v Calderbank [1976] Fam 93.

23    In response to SEEK’s application for costs, Dr Gussen largely repeats the foregoing submissions and contends that each party should bear its own costs, submitting that:

(1)    The claim against SEEK had an objective factual basis arising from its historical connection with the related third-party company (OES Pty Ltd) and the OES arrangement;

(2)    Relying on Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Kwinana Bulk Jetty Case) (Costs) [2026] FCA 126 (at [25] – [33]), the offer was not unreasonably rejected, having remained open only briefly and been made before service of Ben Kiely’s affidavit, which identified the fundamental factual error in the claim; and

(3)    Relying on HealthX Group Pty Ltd v Palling (No 2) [2025] FCA 1300 (at [72] – [74]), SEEK failed to establish a causal connection between the alleged unreasonable conduct and the costs claimed, making its claim for the costs of the entire proceeding, particularly on an indemnity basis, unsustainable.

24    For the reasons set out above, I am satisfied that the discretion to award costs is enlivened by the exceptions to the general preclusive rule in s 570(2) of the Act. For the following reasons, SEEK has established that the proceeding was brought “without reasonable cause”:

(1)    There is a fundamental factual error in the basis of the claim that SEEK owned and controlled OES Pty Ltd by which it was said to be involved in Swinburne’s alleged adverse action within the meaning of s 550 of the Act. SEEK had no interest in that company after October 2021, with the result that the claim was devoid of merit (PJ at [81] and [83]);

(2)    The claims brought against SEEK had no prospect of success, as the pleading was incapable of articulating essential matters, including knowledge for the accessorial liability claim, or the purported elements of the common law right to protected professional communications.

25    Further, Dr Gussen declined the invitation to discontinue the proceeding, instead foreshadowing an application to amend, which never eventuated. By that stage, SEEK had drawn attention to the factual error underpinning the claim and had served the affidavit of Ben Kiely, which established that SEEK had no interest in OES Pty Ltd after October 2021. Had Dr Gussen properly considered the factual error and decided to discontinue rather than self-righteously maintain his position, SEEK would have avoided the expense of preparing its defence and making the application for summary judgment. The rejection of SEEK’s invitation to discontinue was therefore unreasonable.

26    In those circumstances and having regard to the hopelessness of the claim against SEEK, I am satisfied that the proceeding was instituted without reasonable cause and that it is appropriate for Dr Gussen to pay SEEK’s costs of the proceeding, including the interlocutory application filed on 14 May 2026. I am not, however, persuaded to award indemnity costs because while SEEK invited Dr Gussen to discontinue the proceeding and reserved its rights to seek costs, it did not expressly foreshadow a claim for indemnity costs. Dr Gussen is a self-represented litigant and that warning was not sufficient to depart from the ordinary assessment of costs.

Associate:

Dated:    4 September 2026

SCHEDULE OF PARTIES