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CITE

Unreported Judgment

Stella v Griffith University[2024] QCATA 142Senior Member Fitzpatrick
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Stella v Griffith University[2024] QCATA 142

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Stella v Griffith University [2024] QCATA 142
PARTIES:	richard joseph stella (applicant/appellant) v griffith university (respondent)
APPLICATION NO/S:	APL048-24
ORIGINATING APPLICATION NO/S:	OCL053-23
MATTER TYPE:	Appeals
DELIVERED ON:	25 July 2024
HEARING DATE:	25 July 2024
HEARD AT:	Brisbane
DECISION OF:	Senior Member Fitzpatrick
ORDERS:	The appeal is dismissed.
CATCHWORDS:	HUMAN RIGHTS – PRIVACY LEGISLATION ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – MATTERS OF PROCEDURE – INTERLOCUTORY ORDERS – where information privacy matter referred to the Tribunal – where interlocutory order of the Tribunal refusing an application for production of documents appealed – where multiple information privacy complaints are before the Tribunal – whether Tribunal has jurisdiction to order production of documents not strictly relevant to the complaint subject to the appeal – whether Tribunal erred by not taking into account appellant’s reply submissions Information Privacy Act 2009 (Qld) ss 23(3), 23(5), 166, 167, 168, 171, 176, sch 3 item 11(1)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28(3), 143(3)(a)(i) Abbott v QBCC [2021] QCATA 145 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Gobus v Cairns Hinterland Hospital and Health Service & Ors [2018] QCATA 121 House v The King (1936) 55 CLR 499 Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service) [2017] QCATA 28 Pickering v McArthur [2005] QCA 294 Toogood v Cassowary Coast Regional Council [2018] QCAT 319
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 10 January 2024 an application filed by the applicant Mr Stella for production of documents was refused. Reasons for the decision were given on 12 January 2024. An application for leave to appeal or appeal was subsequently filed.
[2]
The appeal tribunal directed that the question of whether leave to appeal should be granted be determined as a preliminary issue. That question will now be determined.

Leave to appeal

[3]
The decision the subject of the application for leave to appeal or appeal is an interlocutory decision. By s 143(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) leave to appeal is required before an appeal can be determined.^[1]
[4]
Leave to appeal will only be granted where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.^[2]

Issues

[5]
To determine whether there is a reasonable argument that there is an error to be corrected, the following matters must be addressed.
1. What error of law, of fact, or mixed fact and law may have occurred.
2. The nature and scope of the Complaint referred to the Tribunal for determination.
3. The issues in dispute in the proceeding below.
4. The relevance of the documents to the issues in dispute.

The Complaint the subject of the proceeding

[6]
On 4 September 2023 the Office of Information Commissioner Queensland (‘OIC’) wrote to Mr Stella advising that resolution of his Complaint to the Commissioner is not reasonably likely to be resolved through mediation and that referral of his Complaint may be made to the Queensland Civil and Administrative Tribunal. The Complaint was subsequently referred to the Tribunal.
[7]
The Complaint is described in the 4 September 2023 letter as arising from the respondent University’s response to a complaint received by it against Mr Stella. The letter records Mr Stella states that on 9 September 2022 Professor Fleming sent an email to individuals who had lodged a complaint against him, setting out the action the University had taken in response to the complaint and attaching a copy of the letter sent to Mr Stella upon conclusion of the University’s investigation. The letter disclosed the outcome of the investigation and Mr Stella’s residential address.
[8]
The 4 September letter goes on to say that Mr Stella states that the University’s disclosure of the outcome of the investigation and Mr Stella’s residential address to the complainants breached Mr Stella’s privacy by inappropriately using and disclosing Mr Stella’s personal information.
[9]
It is recorded that Mr Stella has felt less safe in his home since learning that his address has been disclosed to ‘unknown individuals harbouring a clear animus towards’ [him].
[10]
The OIC notes that the 9 September 2022 email and the attached letter with respect to the outcome of the investigation was obtained by Mr Stella through a right to information request.
[11]
The OIC records that the University denies inappropriate use of Mr Stella’s personal information. Further, the University accepts that the information contained in the letter constitutes Mr Stella’s personal information, and that disclosure of Mr Stella’s address does not fall within any available exemption under the Information Privacy Principles (‘IPP’).
[12]
The OIC notes that the University contends that it is entitled to the exemption in IPP 11(1)(a) as authorising disclosure of the outcome of the investigation.
[13]
The letter records that the OIC decided to accept Mr Stella’s privacy Complaint on 2 June 2023.

Referral

[14]
By letter dated 11 September 2023 the OIC referred the Complaint to the Tribunal.
[15]
The referral document filed by Mr Stella sets out his Complaint in the same terms as described in the 4 September 2023 letter from the OIC. A number of documents are attached to the referral form.
[16]
The referral document sets out the remedy sought from the University as:
1. student misconduct procedures updated to comply with the Information Privacy Act 2009 (Qld) (‘IP Act’);^[3]
2. audit of privacy breaches resulting from present Procedures;
3. release of all remaining personal information as requested; and
4. financial compensation of $92,500.00.

Issues in dispute

[17]
The University’s first response to the matters raised in the referral sets out a number of admissions. I note Mr Stella has later accepted the University’s submission that disclosure of personal information is not “use” within the meaning of s 23(3) and (5) of the IP Act.^[4] Taking that concession into account and based on the referral document and the response, the issues which remain in dispute for determination by the Tribunal are:
1. whether the release of the decision (save Mr Stella’s home address) to the complainants ought to be considered authorised by combination of cl 6.2 of the Student Misconduct Procedures and IPP 11(1)(a) as provided for in Schedule 3 of the IP Act;^[5] and
2. if the Complaint as to disclosure of the decision and disclosure of Mr Stella’s home address is substantiated, the nature of any remedy under s178 of the IP Act.
[18]
Subsequent material filed by Mr Stella significantly expands the scope of the matters he says fall to be determined by the Tribunal.
[19]
On 22 November 2023 Mr Stella filed a “Document setting out particulars of conduct, etc”. The document expands the scope of the referred Complaint to cover collection and disclosure of the following personal information:
1. further opinions of the complainants about Mr Stella not appearing in the text of the complaint about him as were solicited at a meeting held on 25 August 2022;
2. Mr Stella’s “12 concerns” email to Ms Pietsch regarding concerns about the handling of the complaint; and
3. the opinion of Professor Fleming expressed in a 9 September 2022 email to an undisclosed person (the “See attached” email).
[20]
Mr Stella also challenges the University’s Student Misconduct Procedures, the investigation of the complaint and the University’s conduct of its case before the Information Commissioner.
[21]
With respect to these matters Mr Stella raises, variously, unlawful purpose, improper purpose, disclosure of false information, withholding of privacy protections, recklessness, attempts to conceal evidence, and acting in a high-handed manner, which he says are relevant to the aggravated compensation sought by him.
[22]
The University denies Mr Stella’s allegations. Importantly it says that the allegations are conveniently summarised by the Information Commissioner’s precis in its letter of 2 June 2023, which I note is in the same terms as the letter from the Commissioner to Mr Stella in relation to referral to the Tribunal, dated 4 September 2023.
[23]
Further expansion of the issues Mr Stella wants determined in the matter are referred to in the following discussion with respect to the application for production of documents.

Application for production of documents

[24]
By application filed on 6 November 2023 Mr Stella sought a direction that the University disclose:
1. An email and attachment sent by Christopher Fleming to an unknown recipient on 9 September 2022 at 10.33 am with the subject line “See Attached”. Mr Stella has a copy of those documents, but the recipient’s name is redacted. Mr Stella seeks an unredacted version. The document is a word version of a letter sent by Mr Stella to the Head of Department, School of Government and International Relations setting out 12 questions as to how the complaint against him was handled. Professor Fleming has inserted a derogatory one word epithet onto the word version document and sent it to a person whose name is redacted.
2. All remaining information (other than the names of the complainants) within the scope of the OIC external reviews 317075 and 317149 withheld by the University on given grounds.
[25]
The 317075 documents are described as documents generated in the course of framing, delivering, handling and adjudicating the complaint and all documents generated subsequently. The 317149 documents are described as all information and opinions about Mr Stella with some exceptions.
[26]
Mr Stella by way of submissions in reply attempts to reduce and clarify the documents sought and to establish the forensic purpose of the documents. The latter step involved further expression of the expanded case for contravention of the IP Act which Mr Stella wants to run in the proceeding below.
[27]
Mr Stella gives lists of documents which he has obtained in other right to information applications. In essence he seeks unredacted versions of 10 documents which he says will establish alleged breaches of the IP Act in the conduct of the investigation into the complaint against him. Mr Stella seeks unredacted versions of 13 documents which he says go to aggravating factors relevant to the compensation claimed by him. The aggravating factors included circumscribing freedom of political communication, handling of the complaint in disregard for the law, University policies and unethical conduct; and recklessness in disclosing Mr Stella’s address given the complainants opinions of Mr Stella. Lastly Mr Stella seeks unredacted copies of 9 documents which he says will establish that breach of IPP 11 was not human error and was done maliciously, that he suffered adverse action from the complaint and that documents have been withheld in circumstances which show the University has not acted in good faith.
[28]
The University says that Mr Stella presses for documents relating to allegations which are conceded by the University, are irrelevant, or are misconceived as not relating to a privacy complaint. It raises that the application is a fishing exercise.
[29]
Further, insofar as Mr Stella seeks documents in relation to applications 15039 and 15253, these relate to external review decisions 317075 and 317149 the subject of appeal by Mr Stella, noting the refusal of the Information Commissioner to require release of those documents. The University says that to require production of those document will render that appeal nugatory.

The decision

[30]
The Member below discussed the basis upon which the Privacy Commissioner accepted the Complaint and the Complaint as referred to the Tribunal. He said it was not stated clearly if the issue referred is limited to disclosure of Mr Stella’s residential address.
[31]
The Member said that it will ultimately be a matter for the Member hearing the matter to decide the basis upon which the Privacy Commissioner accepted the Complaint and the Complaint as referred to the Tribunal.
[32]
The Member makes the point that the IP Act does not contemplate expansion and amendment of the Complaint beyond any of the matters raised in a Complaint made to the Commissioner. The Member noted that Mr Stella has extended his Complaint to complaints about collection of information used in the course of the investigation by the University and its disclosure to the complainants and whether the University’s Student Misconduct Procedures fall within an exemption under IPP 11(1)(a) in the expanded complaints.
[33]
Reference is made to the Tribunal’s obligation to act in a way that achieves the objects of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal, and quick. The Member observes that none of that is achieved if parties wander into areas not relevant to the proceedings.
[34]
The Member isolated the principles relevant to a direction that a party produce documents from the decision of Abbott v QBCC:^[6]

The production of documents will generally only be ordered if an applicant can establish that:

The documents probably relate to a matter in question in the proceedings;
The documents sought must be specified with sufficient particularity to enable the specific documents or categories of documents to be identified;
An order for the production of the documents is in the interests of justice and will facilitate the just and expeditious resolution of the real issues in the proceedings at a minimum of expense.

[35]
The Member concluded that none of those requirements are met.
[36]
The Member appears to have confused the date on which the 6 September 2022 letter was sent, however nothing turns on that point. The Member notes that Mr Stella seeks disclosure of the unknown recipient of the “See attached” email sent on 9 September 2022 and observes that the applicant has concerns about the author’s opinion of him. The Member concludes that the author’s opinion is an irrelevant consideration and there is no case made that disclosure of such a vague document is in the interests of justice and for the expeditious resolution of the real issues in dispute.
[37]
Finally, the Member says that the balance materials sought are not particularised nor is there explanation given showing how they are relevant to his Complaint. The Member considered the application to be a fishing exercise.
[38]
For these reasons the application for production of documents was refused.

Grounds of appeal

[39]
Mr Stella’s ground of appeal is that the Member failed to take into account a matter he ought to have taken into account, namely his submission in reply filed on 30 December 2023. The order sought is that the Member’s decision be set aside and an order substituted that the University produce the documents requested.
[40]
Mr Stella characterises that failure as an error of law in that the Member did not mention in his reasons of a consideration that ought to have been taken into account.^[7]

Mr Stella’s submissions

[41]
Mr Stella concedes in the submissions dated 8 February 2024 accompanying the application for leave to appeal or appeal that “as a result of his more limited understanding of the IP Act” not all breaches were correctly identified in his initial Complaint. That is the basis for an expansion of complaints which appear most fully in Mr Stella’s contention document and in his reply setting out the purpose of the documents sought by him.
[42]
Mr Stella contends that the “See attached” email sent on 9 September 2022 is within the scope of relevant issues in the proceeding below. The mistaken references to the email in the Member’s decision are raised. It is said that it is not Professor Fleming’s opinion which is sought rather the name of the recipient. He disputes the description of the document by the Member as “vague”.
[43]
Mr Stella says that although the relevance of that document to the Complaint has not yet been decided it will in any case be relevant for the purposes of rebuttal and damages.
[44]
As to the remaining documents, Mr Stella raises that the Member did not refer to his more explicit statement of the documents sought set out in his Reply document and that is a document the Member should have taken into account.
[45]
Further submissions were filed with respect to the leave to appeal issue on 24 April 2024. New grounds of appeal are raised.
[46]
Mr Stella makes clear that he intends to argue in the proceeding below that his Complaint covers contraventions of the IP Act related to collection of information as well as the disclosure first raised with the Privacy Commissioner. He submits that the Member was in error to determine that the IP Act does not allow any expansion of a complaint beyond the matters raised in the Complaint to the Privacy Commissioner. He says that is not a matter raised by the respondent, nor was he heard in relation to the issue and it is a matter for later determination. In any event Mr Stella says determination of the questions as to whether the admitted breach occurred inadvertently and whether there is a case for aggravated damages can only be done by reference to the documents sought.
[47]
Mr Stella says that if the question of scope should be determined prior to the interlocutory application then he should be given an opportunity to be heard on the question.
[48]
In relation to the “See Attached” email sent to an undisclosed recipient on 9 September 2022 Mr Stella says that the Member was in error as to Mr Stella’s reason for requesting the unredacted email and in any event the unredacted document is relevant to alleged “inadvertence” and aggravated compensation. and that failure to address the Reply document amounts to a miscarriage of the Member’s discretion as discussed in House v The King.^[8]
[49]
Mr Stella raises some other matters which do not go to alleged error on the part of the Member below. Mr Stella addresses the argument raised by the University that production of documents the subject of an external review by the Information Commissioner and now the subject of an appeal, would render the appeal nugatory. Mr Stella refers to Toogood v Cassowary Coast Regional Council^[9] where Member Traves did not accept an argument that documents are not disclosable due to being subject to a prior unsuccessful Right to Information application. The learned Member noted that no other objection was raised that the material was otherwise exempt from disclosure.
[50]
Mr Stella says that the University’s argument should be rejected in reliance on Toogood’s case.
[51]
Mr Stella refers to the University’s objection to him “re-framing” the application with respect to the relevance and forensic purpose of the documents sought. He says that only procedural, not substantive objections have been raised by the University and that its argument should be rejected.
[52]
In relation to the complaint that Mr Stella’s application is fishing, he says that if documents otherwise meet the Abbott^[10] criteria they cannot be withheld simply because they happen to contain evidence of further wrongdoing.

University’s submissions

[53]
The University submits that Mr Stella has not discharged his onus to establish any substantial injustice which might be suffered by him if an error is not corrected and has not established there is a reasonable argument that there is an error to be corrected.^[11]
[54]
Further it is submitted that it is not clear that the Member overlooked the Reply submissions, particularly as he noted at [8] that Mr Stella seeks to expand his Complaint beyond any of the matters raised in his Complaint made to the Privacy Commissioner. The University says in that context it is not surprising no detailed analysis of the Reply submissions was made. It may be presumed that the Tribunal was not minded to allow Mr Stella, having the onus on the application, to, in reply, address matters which should have been addressed in chief, namely relevance.
[55]
The University says the issue of undercutting the appeal from the Information Commissioner^[12] and rendering it nugatory, has not been addressed by Mr Stella. The University says the element of an extant appeal distinguishes the decision of Toogood^[13] relied upon by Mr Stella.

Mr Stella’s reply

[56]
Mr Stella submits that if the Tribunal proceeds to a hearing on the substantive privacy matter without reference to a significant quantity of relevant material that would be contrary to the s 28(3) of the QCAT Act and substantially unjust. Further, the documents sought are relevant and satisfy the three limbs of the Abbott test.^[14]
[57]
In a final rejoinder on the question of the effect of an order for disclosure on the appeal from the decision of the Information Commissioner Mr Stella says that if the chief concern is that he would be privy to the content of the documents, that is consistent with a concern further improper conduct may be revealed. That may not be a ground to grant the appeal, but it is not a reason for dismissal.

Consideration

Relevance to the real issues in dispute

[58]
Relevance to the real issues in dispute is the cornerstone of any order for production of documents in the proceeding below. That is the principle against which any alleged error of the Member below should be tested.
[59]
Determining the real issues in dispute is a first step. The real issues in dispute relate to the Complaint as referred to the Tribunal. Necessarily the Complaint must relate to matters raised with the Information Commissioner. It is uncontentious that the nature and scope of the matters actually raised with the Commissioner and subsequently referred to the Tribunal is a matter for the Tribunal which hears the privacy Complaint.
[60]
However, after referral of the Complaint to the Tribunal Mr Stella has increased the scope of his Complaint to cover matters not raised with the Information Commissioner. It appears he has done so as documents have been provided to him as part of right to information requests. Mr Stella considers there may be other contraventions of the IP Act. In particular, the solicitation of opinions about him, the handling of the complaint, the Student Misconduct Procedures, the conduct of the University’s case before the Information Commissioner, aggravating factors relevant to compensation including circumscribing freedom of political communication and malice in disclosing his personal information, suffering of adverse action from the complaint, and withholding documents.
[61]
These matters are not mentioned in the OIC description of the Complaint, nor in Mr Stella’s referral document.
[62]
Mr Stella has confirmed that he did not raise further alleged breaches of the IP Act. I also note from a letter to the OIC dated 10 August 2023, which is attached to the Referral document that Mr Stella acknowledges his request, as part of a settlement proposal, for “release of remaining personal information” goes beyond the present matter.
[63]
Mr Stella made a privacy Complaint which is limited in scope to disclosure of the outcome of an investigation into a complaint against him and disclosure of his personal address. Other complaints about the handling of the investigation and collection of information go beyond that Complaint.
[64]
There is a good reason why the Complaint to be considered by the Tribunal is limited to the matters raised with the Information Commissioner, considered by the Information Commissioner, and later referred to the Tribunal.
[65]
By s 167 and s 168 of the IP Act the Information Commissioner undertakes an assessment of the privacy Complaint to determine if he may decline to deal with or to deal further with a Complaint.^[15] The grounds on which he may decline includes that:
1. the subject of the Complaint does not relate to the personal information of the complainant;
2. s 166(3) of the IP Act has not been complied with insofar as a first complaint has not been made under the complaints management system of the relevant entity;
3. the Commissioner reasonably believes the Complaint if frivolous, vexatious, misconceived or lacking in substance;
4. another Act offers a more appropriate course of action;
5. the respondent has not had an adequate opportunity to deal with a Complaint made under s 166(3); or
6. 12 months have elapsed since the complainant first became aware of the act or practice the subject of the Complaint.^[16]
[66]
The jurisdiction of this Tribunal to deal with a Complaint is not established until the Information Commissioner has dealt with a privacy complaint in terms of making the analysis required under s 167 and s 168 of the IP Act. There are further requirements under s 171 of the IP Act in relation to the Commissioner’s consideration as to whether a resolution could be achieved through mediation.^[17]
[67]
Finally, by s 176 of the IP Act the Information Commissioner must refer the privacy Complaint to QCAT if asked to do so by the complainant and QCAT must hear and decide the privacy Complaint referred to it.^[18]
[68]
The new matters raised by Mr Stella have not been put through any of these steps.
[69]
At the heart of the Member’s refusal of the application for production of documents is a finding that the documents are not relevant to the real issues in dispute. The Member made clear that the objects of the QCAT Act in dealing with the Complaint are not met if the parties stray into areas outside the referred Complaint.
[70]
With those matters in mind, I now turn to the grounds of appeal raised by Mr Stella.

Grounds of appeal

[71]
The errors raised by Mr Stella are:
1. An error of law in the Member failing to take into account his Reply document setting out with particularity the documents sought by him and the forensic purpose justifying production;

The Member does not refer to the Reply document in his reasons. It is not possible to say with certainty whether he turned his mind to the document. The University says that the Member may not have been minded to analyse the document because it expanded his Complaint beyond any of the matters raised in his Complaint, and raises questions of relevance by way of reply rather than in chief.

If it is the case that the Member did not take into account the Reply document I do not consider that to be an error of law which results in a miscarriage in the exercise of the Member’s discretion. On my analysis the issues referred to in the Reply document were not raised with the Information Commissioner and do not form part of the referred Complaint or the matters for determination by the Tribunal. On that basis the documents sought are irrelevant to the issues to be determined, even though they might be relevant to the issues Mr Stella would like to make the subject of the proceeding below. I do not consider any different result could have been reached even if express consideration was given to the Reply document.