Stella v Griffith University & Anor
[2025] QCAT 84
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- Unreported Judgment
- Stella v Griffith University & Anor[2025] QCAT 84
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Stella v Griffith University & Anor[2025] QCAT 84
Stella v Griffith University & Anor[2025] QCAT 84
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Stella v Griffith University & Anor [2025] QCAT 84 |
PARTIES: | richard joseph stella (applicant) v griffith university (First respondent) christopher fleming (Second respondent) |
APPLICATION NO/S: | ADL074-24 |
MATTER TYPE: | Anti-discrimination matters |
DELIVERED ON: | 11 March 2025 |
HEARING DATE: | 28 February 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Traves |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – application of s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether other academics involved in the decision to exclude the applicant from the symposium should be joined – whether signatories to Conduct Complaint made against the applicant should be joined – whether notices to produce should be issued Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 37, s 177 Human Rights Act 2019 (Qld), s 15, s 21, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42, s 62, s 63 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 Health Profession Board of Australia v GA [2014] QCAT 216 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 28 August 2024 the applicant made an application for miscellaneous matters seeking:
- to join Professor Chai and Associate Professor Bodle to the proceedings;
- that any signatories to the complaint about the applicant’s conduct lodged with the University on 22 August 2022 who were employees at any time between 7 August and 11 October 2022 be joined;
- that Griffith University produce the names and addresses for service of any employees described in (ii) above; and
- that Griffith University produce the names and contact details of the employees of the Australian National University (‘ANU’) and Charles Darwin University (‘CDU’) who were party to the decisions relevant to ‘incident D’.
- [2]On 28 October 2024, relying also on their reply to the applicant’s statement of contentions, the respondents filed submissions opposing the application.
- [3]I will deal with the application in two parts: for joinder and for certain information to be produced by the first respondent.
Background
- [4]The substantive proceedings concern a Complaint of discrimination made by the applicant against the respondents based on the attributes of race and political belief or activity in the area of education. At the time the Complaint was made the applicant was a postgraduate student at the School of Government and International Relations within the Griffith Business School at Griffith University.
- [5]The Complaint arose in this way.
- [6]A symposium, the first Annual National HDR and ECR Symposium on Economic Development and Self Determination for Indigenous Australians (‘the symposium’) was to be held on 27and 28 October 2022 at Griffith University. The symposium was jointly organised by the Griffith Business School, the Centre for Aboriginal Economic Policy Research at the Australian National University and the Asia College of Business & Law at Charles Darwin University.
- [7]There was a call for papers for presentation at the symposium. The applicant submitted an extract for consideration by the conference organising committee. The applicant’s extract was not accepted and he did not present at the symposium.
- [8]The applicant alleges the refusal to accept his abstract was triggered by a Conduct Complaint made against him by three other persons (who were students and/or employees of the University) about the content of the applicant’s Twitter posts. The Twitter posts were essentially responses made by the applicant to posts by politicians and academics, some of which related to First Nations people and the proposed constitutional amendments relating to The Voice.
- [9]The applicant complains of five incidents which he says contravened the Anti-Discrimination Act 1991 (Qld) (‘AD Act’)and the Human Rights Act 2019 (Qld) (‘HR Act’). In summary, the applicant alleges that because of his political views he was treated less favourably, including by being excluded from the symposium. The applicant also alleges that because the Conduct Complaint was made by Indigenous students or employees against a non-Indigenous person he was treated less favourably. The applicant described his political beliefs as ‘centre-right’ and, for the purposes of his Complaint, his race as ‘non-Indigenous’.
- [10]The respondents deny the allegations. They say the reason the applicant was not invited to participate in the symposium was because he did not meet the criteria. Further, that the criteria were not changed or implemented purposely to exclude the applicant’s participation.
- [11]The Queensland Human Rights Commission (‘QHRC’) accepted the complaint as one that indicated an alleged contravention of the AD Act on the basis of the protected attribute of political belief or activity, but not race. The QHRC also identified allegations of limitations of the following human rights under the HR Act:
- right to recognition and equality before the law: s 15; and
- right to freedom of expression: s 21.
- [12]The Complaint comprises a series of five incidents which occurred between 2 August 2022 and 23 May 2023:
Incident One
A decision taken by the respondents on or around 22 August 2022 to initiate a ‘preliminary investigation’ of the applicant’s Twitter activity under the auspices of the University’s then Student Misconduct Policy.
Incident Two
The conduct of that investigation by the respondents between 22 August and 6 September 2022.
Incident Three
The conclusion reached by the respondents with respect to that investigation, communicated to the applicant on 6 September 2022.
Incident Four
A decision taken by the respondents on or before 26 September 2022 to exclude the applicant from a planned symposium.
Incident Five
A decision taken by the first respondent between 7 and 23 May 2023 that no action would be taken in response to the applicant’s formal complaint regarding the four incidents above.
- [13]By this application, the applicant seeks to join Professor Chai and Associate Professor Bodle, who were two of those organising the symposium. He also seeks to join the signatories to the complaint.
Applications for joinder
- [14]Section 177 of the AD Act gives the Tribunal the power to join a person as a party to a proceeding whether or not they were a respondent to the Complaint to which the proceeding relates. Section 177(2) provides that the section does not limit a provision of the relevant tribunal Act about joining a party.
- [15]Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) confers a discretion on the Tribunal to join a person as a party to a proceeding and provides:
42 Joining and removing parties
(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
(b) the person’s interests may be affected by the proceeding; or
(c) for another reason, it is desirable that the person be joined as a party to the proceeding.
(2) The tribunal may order that a party be removed from a proceeding if the tribunal considers that—
(a) the party’s interests are not, or are no longer, affected by the proceeding; or
(b) the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.
(3) The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.
- [16]The Tribunal has approached the issue of joinder as a two-step process:
- the Tribunal must be satisfied of one or more of the criteria in s 42(1)(a), (b) or (c); and
- the Tribunal must be satisfied that it is appropriate to exercise the discretion conferred.[1]
- [17]In respect of a similarly worded provision in the Victorian Civil and Administrative Tribunal Act 1998 (Vic), it has been said that the power to join a person as a party is both conditional and discretionary: conditional in the sense it may not be exercised unless the Tribunal is satisfied that at least one of the conditions set out in [s 42(1)] have been satisfied, and discretionary in the sense the Tribunal may refuse to exercise it even if it is satisfied that at least one of those conditions has been met.[2]
- [18]In exercising its discretion, the Tribunal has had regard to the following:
- whether there is utility or purpose in the joinder;[3]
- whether the joinder will unnecessarily lengthen the proceedings;[4]
- whether the joinder would achieve the objects of the QCAT Act;[5]
- any delay in making the application;[6]
- whether there is any prejudice to any party or to the person to be joined that might result from the granting or refusing of the application;[7]
- whether, where the person is to be joined as a respondent, the complainant’s case against that person is not strongly arguable on a prima facie basis.[8]
- [19]
- [20]Section 133 provides:
Vicarious liability
(1) If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
Joinder of Professor Chai and Associate Professor Bodle
- [21]The joinder application is said by the applicant to be relevant to incident 4, the decision to exclude the applicant from the research symposium.
- [22]Professor Andreas Chai and Associate Professor Kerry Bodle, both employees of the Griffith Business School at Griffith University, helped to organise the symposium. The applicant alleges that despite welcoming his application to present a paper on 24 August 2022, Professor Chai and Associate Professor Bodle were subsequently directed or persuaded by Professor Fleming, Dean (Research) of the Griffith Business School, to exclude him. This was done, the applicant submits, by instituting criteria for participation one week after applications closed. The criteria required participants to be a First Nations person or to be completing a PhD on First Nations research and welfare. The applicant was then informed that he did not meet the criteria for participation in the symposium.
- [23]In respect of this incident, the applicant submits that Professor Fleming ‘covertly and improperly undermined his participation in the life of the University’, including by either directing or influencing Professor Chai and Associate Professor Bodle to exclude him from the research symposium.
- [24]The applicant relies on the following email from Professor Chai to Professor Fleming dated 2 September 2022:
Hi Chris
You mentioned there was a HDR student we should *not* invite to the ECR/HDR symposium. What was the name again? Below is the list of people currently attending. (original emphasis)
Regards
Andreas
- [25]The applicant’s name was on the list of current attendees at the time the email was sent but did not receive an invitation to participate in the symposium.
- [26]The applicant seeks to join Professor Chai and Associate Professor Bodle in the event Professor Fleming argues they acted on their own initiative in not inviting him to the symposium. If Professors Chai and Bodle did act on their own initiative then, the applicant submits, they will both be persons affected by the proceedings within the meaning of s 42(1)(b) of the QCAT Act. Further, the applicant submits, joining them will preclude the second respondent from ‘unfairly deflecting responsibility to absent colleagues’ which constitutes ‘another reason’ for their joinder within the meaning of s 42(1)(c).
- [27]The respondents oppose the joinder on the basis the applicant has not said how their interests would be affected, in particular why and how the applicant has determined that they ought hold some liability. The respondents submit that the applicant has not alleged Professor Chai or Associate Professor Bodle have discriminated against him and that his desire to join them is based wholly on a speculative framing of the respondents’ case. Therefore, they submit, the case against Chai and Bodle cannot even be said to rise to the level of a prima facie one justifying discretionary relief. Further, it is submitted that the prejudice (including expense) to Chai and Bodle in being drawn into proceedings of which they presumably have no notice is a relevant consideration.
- [28]Based on the material before me, in particular the email of 2 September 2022, it is arguable that Professor Chai participated in the exclusion of the applicant from the symposium, and at least implemented the direction by Professor Fleming ‘not to invite’ the applicant to the symposium. Even if Professor Chai was only following instructions, it is still arguable that, in implementing a strategy designed to exclude the applicant from participation in the symposium, a contravention of the AD Act and HR Act may have occurred. It does not matter that the University may be vicariously liable for his conduct. Section 133 of the AD Act operates to make the principal and its employee or agent jointly and severally liable for any contravention of the Act by its employee or agent, subject to such steps as it may have taken to prevent that person’s contravention of the Act.[11]
- [29]There is no evidence of weight which concerns Associate Professor Bodle. Professor Bodle did not send the email. Perhaps she was involved in excluding the applicant; perhaps not. But there is insufficient to justify joinder at this stage. I am not satisfied that any of the limbs in s 42 of the QCAT Act are satisfied. Accordingly, the application to join Associate Professor Bodle to the proceedings is refused.
Joinder of signatories to conduct complaint
- [30]The applicant seeks to join the three signatories to the student conduct complaint (‘Conduct Complaint’) about the applicant that they lodged with the University on 22 August 2022. This was described by the applicant as the ‘trigger’ for the acts of alleged unlawful discrimination that followed, and which form the subject of his Complaint.
- [31]The applicant says he initially presumed the signatories were omitted by the QHRC as respondents to his Complaint because they were students and as such not acting as an educational authority within the meaning of s 39 of the AD Act nor exercising powers or carrying on responsibilities within the meaning of s 101. However, in the course of pursuing a privacy complaint, the applicant says that correspondence he received from the Privacy Assistant Commissioner suggested they were acting in the capacity of employees at the time of the relevant incidents. This is because, the applicant submits, the Commissioner formed the view that when his personal information was transmitted to these individuals on or around 22 August 2022, it constituted use (ie internal transfer within an agency), rather than disclosure (ie external dissemination) for the purposes of s 23 of the Information Privacy Act 2009 (Qld).
- [32]The applicant submits that if one or more of the three signatories were employees of the University on or around 22 August 2022 that they should be joined as respondents as the proceedings affect their interests within the meaning of s 42(1)(b) of the QCAT Act.
- [33]It is not clear how the making of the conduct complaint is relevant to the Complaint made to the QHRC. Further, it is not clear how the making of a conduct complaint, without more, constitutes unlawful discrimination in the area of education. It is how the complaint is treated where the real issue lies. I am not satisfied that any of the limbs of s 42 of the QCAT Act apply to any of the signatories to the Conduct Complaint.
- [34]Accordingly, the application to join the signatories to the conduct complaint to the proceedings, is refused.
- [35]By this application, the applicant also seeks an order that the first respondent provide information to him, in particular the names and addresses of the signatories to the Conduct Complaint and of any ANU or CDU employees who were party to decisions regarding criteria for the symposium.
Section 62(3) of the QCAT Act provides that the Tribunal may give a direction requiring a party to produce a document, thing or provide information to the tribunal or to another party to the proceeding.
Notice to produce: if signatories employees
- [36]The applicant seeks an order that the tribunal issue a notice to produce to the University requiring it to produce names, postal addresses and email addresses of the signatories to allow for service of documents, if the signatories referred to above are in fact employees of the University. There is nothing of weight in the material before me that suggests the signatories are employees. The application is ‘fishing’ and is, accordingly, refused.
Notice to produce: names and contact details of any ANU and CDU employees party to decisions regarding criteria for symposium
- [37]The applicant submits that the respondents may argue that the decision to not invite him to the symposium (incident 4) was taken jointly by Professor Chai, Associate Professor Bodle and certain employees of ANU and CDU. If this is the case, the applicant submits, it will be necessary for him to contact those employees to determine whether the decision was made at the instigation of Professor Chai and/or Associate Professor Bodle. In that context, the applicant foreshadows that he may, ultimately, require an ‘order for production of statements from them pursuant to s 63(1) of the QCAT Act’. To ‘facilitate informal enquiries in the first instance’, the applicant seeks an order that the first respondent produce the names and email addresses of the ANU and CDU employees ‘party to decisions as to acceptance and acceptance criteria for the symposium’.
- [38]The respondent submits that the order sought, effectively for discovery of relevant parties, is not one the Tribunal has jurisdiction to make, on the basis there is no equivalent power to that in r208C of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) and the tribunal lacks equitable jurisdiction. Further, that the extent of the power in s 63 is to compel the production of existing documents, that is, in this context, that contain the relevant details. It does not extend to a power to require a party to create such a document.[12]
- [39]I agree with the respondents’ submissions. The Tribunal cannot compel the University to provide the information requested by the applicant. It is outside the scope of s 63 and the application is, accordingly, refused. Further, taking the application as one made pursuant to s 62(3), there is no evidence before me to indicate that ANU or CDU employees were involved in formulating the criteria for the symposium or in making the decision to not invite the applicant to participate. The application is ‘fishing’ and is, accordingly, refused.
Footnotes
[1]Coral Homes Qld Pty Ltd v Queensland Building Services Authority [2011] QCAT 715 [30] citing Comfortable Homes Pty Ltd v Queensland Building Services Authority [2001] QBT 61; approved on appeal in Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 [8] citing Gregor v State of Victoria [2000] VCAT 414.
[2]Gregor v State of Victoria [2000] VCAT 414.
[3]Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 [11].
[4] Ibid.
[5]Mackay v Queensland Building Services Authority [2010] QCAT 381 applied in Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 [13]; MacDonald v Melville [2017] QCATA 142 [24].
[6]Gregor v State of Victoria [2000] VCAT 414.
[7] Ibid.
[8] Ibid.
[9]Snowden Developments Pty Ltd v Actpen Pty Ltd [2005] VCAT 2910 [17].
[10]Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 [14]; Lawley v Terrace Designs Pty Ltd [2004] VCAT 1825 [26].
[11]AD Act, s 133(2).
[12]Relying on Health Profession Board of Australia v GA [2014] QCAT 216 [8].