Federal Court of Australia

Burt v University of Sydney [2025] FCA 393

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application dated 22 January 2025 for an extension of time and leave to appeal against the orders made by Katzmann J on 7 February 2023 is dismissed.

2.    The second respondent has leave to file written submissions in respect of any costs orders it seeks by 5pm on 30 April 2025.

3.    The applicant has leave to file written submissions in respect of any costs orders sought by the second respondent by 5pm on 9 May 2025.

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

REASONS FOR JUDGMENT

OWENS J

1    On 7 February 2023, the primary judge dismissed Dr Burt’s application to strike out a strike out application that had been filed by the Commonwealth. Although the Commonwealth’s application survived that preliminary challenge, it never proceeded to a hearing. That is because Dr Burt, having subsequently obtained the benefit of legal representation, consented to orders that his original pleading be struck out with leave for him to replead. He filed an amended pleading pursuant to that leave on 10 November 2023. Despite the fact that no defence has yet been filed, the issue at the heart of Dr Burt’s case, (broadly, whether group members, as postgraduate research students in receipt of particular scholarships or stipends, were employees of the university at which they undertook their postgraduate studies), will be determined as a separate question at a hearing before Lee J commencing on 2 June 2025.

2    In those circumstances, a casual observer may be surprised to learn that Dr Burt’s application to strike out the Commonwealth’s strike out application is of anything but historical interest. But shortly after Dr Burt’s lawyers ceased to act for him on 4 July 2024, he raised with the Court and the respondents a concern that the primary judge was biased because of her role as a member of the governing body of a medical research organisation called Neuroscience Research Australia (known as NeuRA). Ultimately, that concern led to Dr Burt filing the present application: for leave to appeal from the decision of the primary judge, and for an extension of time within which to seek such leave.

Substantial Injustice?

3    One question immediately posed by this application is what purpose it could conceivably serve. The interlocutory application that Dr Burt sought to have struck out was a challenge (that was never heard) to the adequacy of a pleading (that has now been superseded). Success on any appeal, in those circumstances, would seem to bring little advantage to Dr Burt beyond the intellectual satisfaction derived from the vindication of his arguments. Framed in terms of the statement of principle governing the grant of leave to appeal in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655: what is the “substantial injustice” that would result from a refusal of leave, supposing the decision of the primary judge to be wrong?

4    Dr Burt’s written submissions identified the practical consequences of success on appeal in the following terms:

a.    Restoration of the original class (instead of the decimated class);

b.    Restoration of the pleadings to particularize the relevant evidence (instead of the pleadings as watered down following her Honour’s biased decision); and

c.    Summary judgment in favor of the original class of persons, to their substantial financial benefit, and in acknowledgment of their rights.

5    In the course of oral argument, Dr Burt accepted, as is in any event plain beyond doubt, that the first and second of those outcomes could never be achieved on an appeal from the primary judge’s judgment. He did contend that it would be “at least open” to the Full Court to grant summary judgment, but I do not regard that as a serious possibility. In any event, it became clear that Dr Burt’s real point was that success on appeal would place him in a better position to succeed on an application to amend his pleading in such a way as to restore certain of the features excised from it when his amended statement of claim was filed. (I should make clear: no such application has been made, nor even, so far as the evidence discloses, raised as anything more than a non-specific possibility. Indeed, the imminent listing of the separate question before Lee J rather suggests that no such application is in the offing.)

6    Dr Burt acknowledged that the primary judge’s judgment did not preclude him from, or otherwise restrict him in, seeking leave to amend his pleading. He submitted, correctly, however, that if he were to make such an application, he would need to explain why he was seeking, in effect, to undo amendments that had been made some time ago. Part of the explanation that he would wish to offer, as I understand it, is that the earlier decision to narrow his case was influenced by the outcome of his interlocutory application. Demonstrating that the primary judge’s judgment was wrong would, it was suggested, assist in undoing decisions taken in consequence of it.

7    I am not persuaded that success on an appeal would place Dr Burt in any “better position” on any application to amend his pleadings (even assuming that that would be a sufficient basis upon which to hold that the second of the limbs in the Decor v Dart Industries test was satisfied). The fundamental matter determined by the primary judge’s judgment was that the Commonwealth’s application to strike out Dr Burt’s statement of claim was not an abuse of process. The critical basis upon which that conclusion was reached was her Honour’s finding that the Commonwealth’s contentions concerning formal pleading deficiencies in Dr Burt’s statement of claim were “at least reasonably arguable” (at [41]). The primary judge did not go on to determine whether any aspect of Dr Burt’s pleading was maintainable or not.

8    In no way, therefore, could the decision to file the amended statement of claim be regarded as a direct or inevitable consequence of her Honour’s judgment. Furthermore, in most, if not all, respects (to take the most obvious example, the amendment to the group member definition), the ways in which the case was narrowed in the amended statement of claim are not self-evidently a response to anything in the primary judge’s judgment. If Dr Burt wishes to explain why he took certain steps in the proceedings in light of the primary judge’s judgment, then it is open to him to do so. Any future amendment application should be dealt with on its merits, and not indirectly (and belatedly) through an attempt to persuade the Full Court that the primary judge’s conclusion that the Commonwealth’s contentions were reasonably arguable was wrong.

9    Dr Burt raised a separate argument in this context about another aspect of the primary judge’s reasons. The foundation of the argument is Dr Burt’s contention that the Commonwealth has made a demonstrably false statement on the website of the Department of Education (the details of which do not presently matter). His case, as put in writing on this application, is that the making of that allegedly false statement shows clearly that the Commonwealth:

has no viable defence to the claim that [it] knew that the Group Members were employees, since there is no other reasonable explanation for why [the Commonwealth] published false statements regarding the [Income Tax Assessment Act 1997 (Cth)] on its website, which had the effect of misdirecting interested Group Members away from considering their status as employees ….

10    When the Commonwealth’s lawyers in these proceedings denied in correspondence that the statement on the website was false, Dr Burt submitted that it showed (as the primary judge recorded at [48]):

that the Commonwealth is not litigating in good faith and to allow its interlocutory application to proceed in these circumstances would bring the administration of justice into disrepute. He also submitted that, because the Commonwealth must know that “it is lying about lying”, it necessarily follows that the only reason it has filed its interlocutory application is for the illegitimate purpose of delaying or avoiding having to file a defence.

11    Dr Burt complained that the primary judge wrongly attributed to him, in connection with this argument, the position that he appeared “to think that the fact that a person is required to pay income tax necessarily means the person is an employee” (at [49]). Whether or not that is so does not seem to me to be capable of making any difference to the outcome of this application.

12    That is because the primary judge’s conclusion that the Commonwealth’s pleading complaints were reasonably arguable provided an independent and sufficient ground for rejecting the submission that the Commonwealth’s interlocutory application was an abuse of process. Any suggestion that those arguments were mere “cover” for the true purpose of the Commonwealth’s application could never have been sustained on the evidence before the primary judge. That is particularly so when the (lack of) strength of the argument concerning the website statement, which I address briefly below, is appreciated. It follows that, even if Dr Burt’s arguments about the website statement were accepted, the result (with one possible qualification, to which I will return, under the heading “Collateral Issues” below) would not be the demonstration of error in relation to her Honour’s dismissal of Dr Burt’s application. Once again, therefore, a refusal of leave to appeal would not result in any substantial injustice to Dr Burt.

13    Finally, Dr Burt submitted that substantial injustice would flow from the mere fact that a decision had been given by a judge who was not impartial. Whether or not that statement should be accepted in that absolute and unqualified way, especially in the context of an application for leave to appeal from an interlocutory decision of no ongoing practical consequence, is a question that can be put to one side. That is because I am prepared to assume, for the purposes of deciding this application, that allowing a judgment of a judge who was actually biased against the losing party to stand would constitute a substantial injustice.

Sufficient Doubt?

14    To approach the matter on that basis thus directs immediate attention to the first limb of the Decor v Dart test; namely, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its reconsideration by the Full Court by reason of the allegation of actual bias (Dr Burt expressly disavowed any reliance on apprehended bias).

15    I have already mentioned that the fundamental basis for the allegation is the fact that the primary judge was, during the period of the claim, a member of the governing body of NeuRA. That organisation is not a party to these proceedings, nor is any allegation concerning it made by any party in these proceedings. Despite those unpromising foundations, Dr Burt submitted that actual bias on the part of the primary judge could be traced to the following circumstances.

16    NeuRA is said to be a research affiliate of the University of New South Wales. The University makes available post-graduate research students to perform research at NeuRA. Those researchers are eligible for scholarships funded by philanthropic donations to NeuRA, which are paid in addition to the scholarships and stipends receipt of which is one element of the definition of group membership in these proceedings. (There was no evidence of any of these matters other than Dr Burt’s allegation, but I will proceed on the basis that each could be established by admissible evidence on appeal if required).

17    The argument was that if Dr Burt was successful in these proceedings (at least as they were framed before the amended application and statement of claim were filed), then the University of New South Wales would have had to pay more money to its post-graduate research students. That would in turn be likely to affect the number of post-graduate research positions offered by the University, which would mean that there were fewer researchers who would be made available to NeuRA. NeuRA would thus, it was submitted, be adversely impacted.

18    That attenuated chain of reasoning involves little more than speculation. It does not provide even the slenderest foundation for an allegation of actual bias against the primary judge, a finding of which is, as has often been pointed out, “a grave matter”: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127.

19    Dr Burt sought to strengthen his bias argument by submitting that the fact her Honour was biased could be inferred from various aspects of her conduct of the proceedings, and her reasoning. These features were said to indicate prejudgment, caused by her interest in the proceedings:

(a)    Dr Burt contended that the primary judge denied him natural justice, by granting only the Commonwealth an opportunity to make oral submissions. There is nothing to this complaint. When Dr Burt foreshadowed his application, the primary judge asked him if he would be content to have it dealt with on the papers. He replied in the affirmative. The Commonwealth, at that time not having seen Dr Burt’s application, gave a more guarded response. The Commonwealth indicated that it was content for the application to be dealt with on the papers, “but with leave, perhaps, for the Commonwealth or Dr Burt to approach your Honour if there’s a different view after the material has been filed”. The primary judge responded by saying: “I will do that”. It is thus plain that her Honour intended to give leave for either party to seek leave to make oral submissions if they wished to do so. It is true that, when orders were formally made, the grant of leave to make oral submissions was expressed to apply to the Commonwealth only. That appears to have been a slip, and plainly did not reflect her Honour’s intention as expressed in the exchange I have summarised above. In any event, as it happens, the Commonwealth did not seek leave, and there is nothing in the evidence to suggest that Dr Burt, at any point before the delivery of judgment, wished to make oral submissions. This feature of proceedings provides no support whatsoever for any allegation of actual bias.

(b)    Dr Burt also submitted that it could be inferred that the primary judge was actually biased because of what he described as “prejudicial” statements or observations about him in her judgment. The three matters relied upon were that: the primary judge said that Dr Burt “retaliated with an interlocutory application of his own”, after the Commonwealth filed its strike-out application (at [9]); her Honour said that one aspect of correspondence from the Commonwealth’s lawyers had “raised Dr Burt’s ire” (at [51]); and Dr Burt’s submissions were described as “difficult to understand” (at [49]). None of those statements indicate actual bias. The first simply identified Dr Burt’s interlocutory application as procedurally responsive to that of the Commonwealth. The second reads naturally as a means of conveying the seriousness and significance attached by Dr Burt to the relevant portion of the correspondence, and the force with which Dr Burt expressed his submissions on that topic. The third is simply a polite way of conveying that the primary judge found the submissions advanced to be significantly less persuasive than Dr Burt considered them to be. On no view, even taken at their highest, do those three matters come close to indicating the closed-mindedness, fixedness of view, and commitment to a particular result, that is the hallmark of actual bias.

(c)    Dr Burt also relied on her Honour’s reasoning itself as indicating bias. He submitted that her Honour “ignored evidence”, by which he meant that she did not accept the force of his submissions about the statement on the Department of Education website, and the Commonwealth lawyers’ denial that it was false. Once again, I do not think that there is anything in this:

(i)    For one thing, the falsity of the statement on the website is nowhere near as clear as Dr Burt submits. It is sufficient for the purposes of dealing with this application to observe that the statement in question purports to summarise the effect of certain provisions of the Income Tax Assessment Act relating to the tax treatment of scholarships. It may be accepted that the statement in question does not correspond precisely with the full detail of the relevant provisions of that Act, including exceptions to general provisions. Whether it was intended to do so, needed to do so, or would have been understood by a reasonable reader to do so, are questions that could no doubt be debated. The answers to them would be relevant to any characterisation of the statement as “false” and, if it were so characterised, the precise connotation of the epithet.

(ii)    One consequence of that potential for debate is that the inferences that may be drawn from the fact that a statement was made in those terms, even assuming its falsity, or a statement denying its falsity, must also be contestable. At the very least, even cursory contemplation would reveal many possible explanations for the making of the statement (or the denial of its falsity) other than an awareness of the truth of the proposition that group members were employees.

20    For all these reasons, I am not satisfied that the bias allegations raised by Dr Burt are of any substance whatsoever. They certainly do not rise to the level where it could be said that the primary judge’s judgment is attended with sufficient doubt to warrant its reconsideration by the Full Court.

21    No other basis for doubting the correctness of the primary judge’s judgment in relation to the dismissal of Dr Burt’s strike out application has been made out. Her Honour’s conclusion that the Commonwealth had a proper basis upon which to challenge the adequacy of Dr Burt’s pleading was plainly open. Indeed, I did not understand Dr Burt to dispute the correctness of her Honour’s conclusion at [41].

22    For these reasons, I am not satisfied that the primary judge’s judgment is attended with sufficient doubt to warrant a grant of leave.

Collateral Matters

23    Dr Burt’s interlocutory application sought, in addition to the striking out of the Commonwealth’s strike out application, declarations of professional misconduct against four named Commonwealth lawyers. The basis upon which those declarations was sought was the involvement of each of those lawyers in sending, or causing to be sent, the letter denying the falsity of the statement of the Department of Education website to which I have already referred. The primary judge also dismissed that aspect of the application.

24    For the reasons I have already given, the falsity of the statement in question is nowhere near as plain as Dr Burt considers it to be. The primary judge was amply justified in holding that the evidence went “nowhere near” establishing the serious allegations made by Dr Burt (at [60]). In those circumstances, it is not necessary to consider whether any additional impediment to the relief sought by Dr Burt was the absence of jurisdiction of this Court to make the declarations in the terms sought.

25    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).

26    Finally, in his draft grounds of appeal, Dr Burt sought various orders providing for the payment of compensation to him by the primary judge, or in the alternative, the “Federal Court Registry”, for losses suffered by reason of the alleged bias of the primary judge. In his submissions on the application, Dr Burt accepted that such relief could not be granted, but maintained that the appeal had utility in placing him in a “reasonable position” to “possibly receive an ex gratia payment pursuant to s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth)”. I have already explained why the foundation for this collection of arguments is devoid of solidity. It would not, in any event, be a proper use of the process of this Court to facilitate that extraneous objective.

Conclusion on Leave to Appeal

27    Overall, for the reasons I have given, I am satisfied that when both limbs of the Decor v Dart Industries test are considered, the result is that leave to appeal should be refused in all respects.

extension of time

28    Because I have concluded that leave to appeal ought not be granted on the merits, it is not strictly necessary for me to decide whether I would have granted an extension of time had I been of a different view. In those circumstances, I will state my reasons on this issue in a summary way.

29    The extension required is substantial: the primary judge delivered her judgment on 7 February 2023, and the application for leave to appeal was not filed until 23 January 2025.

30    Insofar as every issue other than bias is concerned, Dr Burt has not provided any satisfactory explanation for his delay. He served a draft application for leave to appeal on the Commonwealth on 21 February 2023, that substantially corresponded with the non-bias grounds he now seeks to advance. He was directed to file any application for leave by 28 February 2023, but did not do so. There is no adequate explanation for why leave to appeal on those grounds was not sought within time.

31    Insofar as the bias issue is concerned, it would appear that Dr Burt was aware of the factual circumstances forming the basis of his bias contentions by no later than April 2024. He was then represented by lawyers, and the evidence discloses that a considered forensic decision was made at that time not to advance those contentions. That position only changed when Dr Burt’s lawyers ceased acting for him in July 2024. From that point onwards, Dr Burt appeared primarily to regard the issue of bias as one relevant to the question of the future case management of the proceedings (rather than as a basis upon which the primary judge’s judgment might be challenged). The focus only clearly shifted to seeking leave to appeal from that judgment in December 2024. I am not persuaded that there is any proper explanation for the full period of the delay in seeking leave to appeal on the ground of bias.

32    Overall, an additional powerful factor weighing against granting any extension of time is the futility of doing so, in light of my assessment of the prospects of the application for leave to appeal outlined above.

Conclusion

33    I dismissed Dr Burt’s application at the conclusion of the hearing on 16 April 2025. Unfortunately, I was not in a position at that time to deliver reasons for judgment, and while it is ordinarily undesirable that orders be made without delivering reasons at the same time, I considered it important, in light of the approaching hearing before Lee J, that the parties should know where they stand as soon as possible. In any event, it was for the reasons set out above that I dismissed the application.

34    I had hoped to deal with the question of costs at the hearing as well. The Commonwealth was not, however, in a position to address me on that issue. That was regrettable. I have directed the parties to file written submissions on that question, which I will determine on the papers.

Associate:

Dated:    23 April 2025