the Applicant v Swinburne University of Technology
Citation: [2026] FCA 39
What happened
the Applicant brought proceedings against Swinburne University of Technology involving matters under the Fair Work Act 2009 (Cth). During those proceedings, he made an interlocutory application in the Federal Court seeking to restrain Swinburne from enforcing a costs order that had been made against him in the Magistrates' Court. The primary judge dismissed that interlocutory application and ordered the Applicant to pay Swinburne’s costs. the Applicant then applied to the Federal Court of Australia for an extension of time and leave to appeal that interlocutory costs order, arguing that the costs protections in section 570 of the Fair Work Act applied and prevented such a costs order being made against him.
What was decided
The Federal Court refused the application for an extension of time and leave to appeal. The Court found it was an overwhelming case that the proposed appeal had no real prospect of success. The central question was whether section 570 of the Fair Work Act, which limits costs orders in Fair Work matters, applied to the interlocutory application. The Court found that an application to restrain enforcement of a Magistrates' Court costs order was not sufficiently connected to Fair Work Act matters to attract the protections of section 570. Because the appeal had no reasonable prospect of success, leave was refused.
What it means for employers
Employers facing Fair Work Act proceedings should be aware that the costs protections in section 570 of the Fair Work Act do not automatically extend to every interlocutory step taken during related litigation. Where an employee brings a separate application, such as one to restrain enforcement of a costs order from another court, that application may fall outside the section 570 costs shield, leaving the Applicant exposed to a standard costs order if unsuccessful.
What it means for employees
Employees should not assume that the Fair Work Act's costs protections will cover every application they make during litigation, even if the overall proceedings involve Fair Work matters. Applications that are not closely enough connected to the Fair Work Act claim itself, such as attempts to restrain enforcement of costs orders from other courts, may not attract those protections. Employees should seek legal advice before bringing interlocutory applications to understand their potential costs exposure.
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Every statement above is drawn from the published decision. Read the original here:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2026/2026fca0039Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections