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A graduate pursuing a claim that postgraduate research students should be considered university employees has had allegations about four Commonwealth lawyers dismissed for the second time.
Dr Tristan Burt, a PhD graduate from the University of Sydney, has taken on the institution and the Commonwealth over a claim that postgraduate research students receiving particular scholarships or stipends should be classified as employees of their university.
The claim was first aired before Justice Anna Katzmann of the Federal Court in February 2023 when Burt unsuccessfully applied to have the Commonwealth’s strike-out application tossed out.
After consenting to strike out his original pleading, Burt filed an amended version that is due to be heard later this year.
However, Burt has filed leave to appeal from Justice Katzmann’s original decision on the grounds that she was biased because of her role as a member of a governing body of a medical research organisation called Neuroscience Research Australia (NeuRA).
According to Burt’s evidence, NeuRA is a research affiliate of the University of NSW, which allows postgraduate students to perform research out of the organisation. These students are eligible for scholarships, in addition to any university stipends.
He claimed that if successful in his proceedings, the University of NSW would have to pay more money to its students, which could then have an adverse impact on NeuRA.
Given his substantive claim will be heard shortly, Justice Nicholas Owens said one question immediately posed by Burt’s leave application is “what purpose it could conceivably serve”.
Beyond the “intellectual satisfaction derived from the vindication of his arguments”, Justice Owens said there seemed to be “little advantage” to Burt if he was successful on any part of his appeal.
As Burt’s reasoning involved “little more than speculation” and did not provide “even the slenderest foundation for an allegation of actual bias”, Justice Owens tossed out the claims.
In the February 2023 proceedings, Burt also sought a declaration of professional misconduct against four Commonwealth lawyers for their role in sending a letter that denied the alleged falsity of a statement made on the Department of Education website.
Burt claimed that by denying the statement was false, it showed the Commonwealth “is not litigating in good faith”.
Justice Katzmann said this should be rejected because the evidence goes “nowhere near proving them to the requisite standard”, and she was not “in the least persuaded” there was anything to justify a finding of professional misconduct or unsatisfactory professional conduct.
Similarly, Justice Owens said the falsity of the statement in question was “nowhere near as plain as Dr Burt considers it to be”, and Justice Katzmann was justified in dismissing the allegations.
“Insofar as Dr Burt seeks leave to appeal from this aspect of the primary judge’s judgment, therefore, I am not persuaded that it is attended with sufficient doubt to warrant a grant of leave.
“Additionally, I am not persuaded that any substantial injustice would result from a refusal of leave, even if the primary judge’s judgment was wrong (in light of the continued availability of the conventional means by which questions of professional discipline may be addressed),” Justice Owens said.
The case is Burt v University of Sydney [2025] FCA 393.
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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