Burt v University of Sydney

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 23 September 2026
• Neutral Citation: [2026] FCAFC 129
• Date: 23 September 2026

Federal Court of Australia

Burt v University of Sydney [2026] FCAFC 129

ORDERS

NSD 1 of 2026
BETWEEN:	TRISTAN BURT Appellant
AND:	THE UNIVERSITY OF SYDNEY (ABN 15 211 513 464) First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent

order made by:	WIGNEY, SNADEN AND SHARIFF JJ
DATE OF ORDER:	23 SEPTEMBER 2026

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1 On 4 June 2025, this court dismissed the individual claims that the appellant, Dr Tristan Burt, had advanced in a representative proceeding commenced against the respondents: Burt v University of Sydney (Common Question) [2025] FCA 601 (Lee J; hereafter, the “Primary Judgment”). In doing so, it answered what had previously been identified as a common question upon which the representative action might turn. By a subsequent judgment and consequential orders dated 10 December 2025, the representative proceeding was dismissed in its entirety: Burt v University of Sydney (Section 33ZB Order) [2025] FCA 1484 (Lee J).

2 The common question that was the focus of the Primary Judgment concerned domestic students whom the first respondent, the University of Sydney (the “University”), had accepted as candidates for higher degrees by research (“HDRs”) and who, in connection with that candidature (and between 22 September 2015 and 22 September 2021—hereafter, the “Relevant Period”), received certain Commonwealth scholarships. Dr Burt, as representative of the group, contended that, by reason of the contractual arrangements that obtained upon his receipt of scholarship funds during the Relevant Period, he was engaged not as a student (or perhaps, not only as a student) of the University but as (or also as) its employee. From that central proposition were said to arise various entitlements that, by operation of the Fair Work Act 2009 (Cth) (the “FW Act”), the University was obliged but wrongly failed to afford Dr Burt and the group members. The second respondent, an agency of the Commonwealth, was said (by conduct that needn’t here be particularised) to have been accessorily involved in the statutory contraventions that were alleged against the University.

3 By an amended notice of appeal dated 31 March 2026, Dr Burt appeals from the Primary Judgment and the 10 December orders. Although several appeal grounds are advanced, they all distil to the straightforward proposition that the primary judge erred by concluding that the relationship between Dr Burt and the University was not one of employment. Whether or not he did is the sole question upon which the present appeal turns. The respondents maintain that no such error transpired. Additionally, by notices of contention dated 21 April 2026 and 29 April 2026, the University and the Commonwealth respectively submit that the Primary Judgment should be affirmed on an alternative basis, to which we shall later return.

4 For the reasons that follow, the Primary Judgment is not attended by error and the appeal should be dismissed.

Background

5 The factual landscape underpinning the Primary Judgment is not the subject of contest on appeal. The relevant background facts may, thus, summarily be stated.

6 HDRs are but one genus of the many qualifications that the University offers to prospective students. Some HDR students are fortunate to receive financial assistance in connection with their enrolment. It appears that, during the Relevant Period, at least two forms of Commonwealth financial scholarship were available to be awarded to students of the University who were enrolled in (or candidates for) HDRs: one known as the Australian Postgraduate Award (or “APA”) scholarship and one known as the Research Training Program (or “RTP”) scholarship. It is convenient to refer to them, collectively and as the primary judge did, as the “Postgraduate Research Scholarships”.

7 On 28 April 2016, Dr Burt received and accepted an offer from the University of admission as a full-time Doctor of Philosophy candidate commencing on 1 July 2016. The terms of the offer recorded that the course tuition was “fee exempt” by reason of a governmental research training scheme, although Dr Burt was obliged to pay to the University an annual student services and amenities fee. Acceptance of the offer required that Dr Burt agree to the University’s “Code of Conduct and Conditions of Enrolment”.

8 The primary judge was content to describe the ensuing relationship as an “arrangement”; but it was common ground before him (and remains so now) that Dr Burt’s acceptance of that offer “…brought into being a contract between the University and Dr Burt rather than a non-contractual consensual relationship, the continuation of which was dependent upon the presence of mutuality”: Primary Judgment, [9].

9 In July 2016—nearly two and a half months after the initial admission contract came to be—Dr Burt was offered an APA scholarship. The terms of that offer were written and it will be necessary to explore them shortly. For now, it suffices to note that it was common ground below that the resultant contractual relationship—described by the primary judge as the “Scholarship Contract”—governed the relationship between the University and Dr Burt from 1 July 2016 (being the date upon which Dr Burt’s HDR candidature commenced). On (or with effect from) 1 January 2017, the APA scholarship that Dr Burt had accepted became, instead, an RTP scholarship.

10 Dr Burt completed his doctorate in December 2019 and it was conferred upon him on 3 August 2020.

11 At this juncture, it is prudent to record some of the primary judge’s observations about the statutory character and objects of the University (Primary Judgment, [13]-[16]):

13 The University, originally established in 1850 via the University of Sydney Act 1850 (NSW), is now governed by the University of Sydney Act 1989 (NSW) (University Act). As part of the Full Court in University of Sydney v National Tertiary Education Industry Union [2024] FCAFC 57; (2024) 304 FCR 18 (at 31 [50]), I referred to “the objects and functions of the intellectual community constituted by the University” and noted that s 6 of the University Act provides:

6 Object and functions of University

(1) The object of the University is the promotion, within the limits of the University’s resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence.

(2) The University has the following principal functions for the promotion of its object —

(a) the provision of facilities for education and research of university standard,

(b) the encouragement of the dissemination, advancement, development and application of knowledge informed by free inquiry,

(c) the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community,

(d) the participation in public discourse,

(e) the conferring of degrees, including those of Bachelor, Master and Doctor, and the awarding of diplomas, certificates and other awards,

(f) the provision of teaching and learning that engage with advanced knowledge and inquiry,

(g) the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in this subsection, and that are sufficient to ensure the integrity of the University’s academic program[me]s.

14 The central importance of research is evident from this object.

15 The practical reflection of the importance of this object is seen by the fact that in 2015, the University had an operating revenue of $2,030.2 million, of which $522.8 million was derived from research and consultancy activities.

16 It is also evident that research students are an integral part of the University’s overall research activity and, according to the University’s Strategic Plan for 2016–20, the University considers HDR candidates as “the future of [its] disciplines and a vital part of Australia’s innovation ecosphere” (whatever that expression means).

12 The University of Sydney (Higher Degree by Research) Rule 2011 (the “HDR Rule”) was made pursuant to s 37 of the University of Sydney Act 1989 (NSW) (or, possibly, pursuant to by-laws made pursuant to that section—it doesn’t much matter). His Honour expended some effort in recording (Primary Judgment, [17]-[19]) the content of that rule:

17 …The HDR Rule applied to all domestic candidates for HDRs and provided that the University will not admit a person to a course unless the person: (a) is eligible for admission to the course; (b) applies for admission in accordance with the HDR Rule and the course resolutions; (c) accepts an offer made by the University for admission to the course; (d) completes, to the satisfaction of the University, all requirements for enrolment in the course; and (e) meets the University’s English language requirements.

18 Dr Burt, like all other applicants for admission to candidature for the degree of Doctor of Philosophy was required to submit to the relevant faculty: (a) a proposed course of advanced study and research, approved by the Associate Dean, in consultation with the Postgraduate Coordinator of the school in which the work is to be undertaken; (b) satisfactory evidence of the applicant’s eligibility for admission; and (c) a statement certifying the applicant’s understanding that, subject to the HDR Rule, if the candidature is successful, their thesis will be lodged with the University Librarian and made available for use.

19 It is also apparent from the materials in evidence that:

(1) the thesis had to be the student’s own work, embody the results of the work undertaken by the student during their candidature, and form a substantially original contribution to the area of knowledge concerned;

(2) HDR candidates were required to undertake their candidature wholly under the...