Griffith University v Tang

The High Court of Australia considered an appeal by Griffith University against a decision of the Supreme Court of Queensland's Court of Appeal. The dispute concerned the exclusion of Dr. Tang from a PhD candidature program conducted by the University. Griffith University, a statutory body with powers derived from legislation to function as a university and confer awards, had made the decision to exclude Dr. Tang.

The central legal issues before the High Court were whether Dr. Tang's exclusion from the PhD program constituted a "decision to which the Judicial Review Act 1991 (Qld) applied" and, more specifically, whether it was a "decision made under an enactment." The Court was required to determine the nature of the relationship between the University and Dr. Tang and how that relationship informed the characterisation of the University's decision.

The High Court reasoned that the relationship between a university and a student undertaking a higher degree by research is primarily contractual, not one arising from the exercise of statutory power. While the University's existence and powers are statutory, the decision to exclude a student from a candidature program is not a direct exercise of those statutory powers in the sense contemplated by the Judicial Review Act. Instead, it is a decision made pursuant to the terms of the agreement between the University and the student. Consequently, the Court held that the exclusion was not a decision made under an enactment for the purposes of the Judicial Review Act.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal and the Supreme Court. The application for statutory order of review was dismissed. The appellant, Griffith University, was ordered to pay the respondent's costs of the appeal to the High Court, and the question of costs at first instance was remitted to the Supreme Court of Queensland.