Stella v Griffith University - [2025] QCAT 115

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stella v Griffith University & Ors [2025] QCAT 115

PARTIES:

RICHARD STELLA

(applicant)

v

GRIFFITH UNIVERSITY

(first respondent)

CHRISTOPHER FLEMING

(second respondent)

ANDREAS CHAI

(third respondent)

APPLICATION NO/S:

ADL074-24

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

26 March 2025

HEARING DATE:

25 March 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1.     The application for a notice to produce filed by Richard Stella on 21 August 2024 is allowed in the following terms:

(a)     Griffith University produce the documents in the following categories, as described in Annexure A to this Order, to Richard Stella:

(i)        incident one documents;

(ii)      incident two and three documents;

(iii)     incident four documents; and

(iv)      incident five documents, by:

4:00pm on 18 April 2025.

2.     The application in respect of the category described as ‘race discrimination documents’ is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – NOTICE TO PRODUCE –where applicant seeks order for the disclosure of certain categories of documents pursuant to s 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether notices to produce should be issued

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62

Elks v Aitken Whyte Lawyers Pty Ltd [2024] QCAT 123

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

The applicant has applied for orders requiring Griffith University to produce documents relevant to one or more of the five incidents that form the subject of his Complaint.
The Complaint comprises a series of five incidents which occurred between 2 August 2022 and 23 May 2023. The documents have been grouped by the applicant according to which incident[1] they relate and are described with some particularity. Annexure A to my Reasons is a list of the documents requested.
[1]I have referred to the incidents by number rather than letter, for example, incident A in the application is now incident one.
The incidents are as follows:
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.
What the parties say
The applicant contends that the documents sought provide the ‘evidentiary basis’ for establishing that his protected attributes (political belief or activity; race) constituted the sole or substantial reason for the respondents’ decisions and conduct. The applicant says that while a significant portion of the material sought has already been identified and set aside by the University as a result of a series of right-to-information applications, the University has withheld some material, purportedly on public interest grounds. Other documents sought are said by the applicant to fall outside the scope of the right-to-information applications because they either do not mention the applicant by name or were generated after the right-to-information applications were lodged in late 2022.
The respondents submit in broad terms that although relevance is not necessarily limited by reference to documents which are not presently demonstrated to be directly relevant, that is, tending to prove or disprove an allegation in issue in the proceedings, parties are nonetheless restrained from fishing and seeking information relating to matters other than the substantive issues to be determined. The respondents submit that the applicant has, at a threshold level, not yet properly framed or articulated the scope of his case and therefore what is said to be in issue, is not clear. On that basis, it is argued, the application for disclosure is premature, and ought be dismissed.
Relevant law
Section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that the Tribunal may give a direction requiring a party to a proceeding to produce a document or thing, or provide information, to the tribunal or to another party to the proceeding.
The principles relevant to a disclosure application were recently summarised in Elks v Aitken Whyte Lawyers Pty Ltd[2] where Justice Mellifont, President of the Tribunal, held:
Materials sought pursuant to an application under s 62(3) will only be directed to be produced where they are described with particularity and have demonstrated direct relevance to the issues in the dispute. The application must not be used to engage in a “fishing expedition”.
The exercise of the power to order disclosure must occur in the context of what is necessary for a speedy and fair conduct of the proceeding in question.[3]
[2][2024] QCAT 123.
[3]Ibid, [10]-[11].
The incident one documents
The applicant claims the documents in this category are relevant to incident one. The documents listed can be described as a series of email chains or single emails between certain academics or between academics and one or other of the three signatories to the complaint made against the applicant as well as three documents written by one of the signatories concerning their views which was within the scope of RTI application 15039 but withheld by the first respondent.
The applicant seeks to demonstrate that the respondents, upon receipt of the formal complaint against him about his activity on Twitter, disregarded the terms of the Student Misconduct Policy, in effect, by applying the policy to him when it did not cover his conduct. The applicant maintains that the policy was not properly applied by the respondents because of his political belief or activity.
By this category the applicant seeks email chains each of which he says record part of the discussions that led to the decision to invoke the Student Misconduct Policy by initiating a ‘preliminary investigation’ of his activity on Twitter. The email chains commence in the few days prior to the decision made on 22 August 2022 to invoke the policy by initiating a ‘preliminary investigation’ or are emails dated 22 August 2022. One email post-dates the decision, that is, an email dated 9 September 2022 but has as the subject line ‘Outcome of your complaint against Mr Joe Stella’. Three documents written by one of the three signatories to the complaint against the applicant are undated, but the applicant claims were within the scope of RTI application 15039 but withheld by the first respondent.
The Complaint concerns the decision to initiate an investigation into the applicant’s conduct. The applicant claims that decision offended the Anti-Discrimination Act 1991 (Qld) (‘AD Act’). The documents sought are likely context for, and relevant to, that decision. Given the nature of the complaint in relation to this incident, it is reasonable for the applicant to seek documents which may reveal the reason the decision was made to initiate a preliminary investigation and whether the respondents were aware the terms of the policy did not, allegedly, apply. Accordingly, I am satisfied the documents sought are relevant to incident one. The request is for particular documents, and could not be said to be oppressive.
I propose to allow production of the documents listed in this category, but subject to the names of the three signatories to the complaint against the applicant being redacted.
The incident two and incident three documents
The applicant claims that incident two (the conduct of the preliminary investigation) and incident three (the outcome) lacked procedural fairness and was contrary to provisions of University policies and that this resulted in an adverse finding and a written warning. The applicant argues this course of action was taken because of his political belief or activity. The evidentiary basis for the contention is to be found, the applicant submits, in the records of internal discussions between University employees over the course of the investigation. The applicant claims the documents sought record discussions that guided the investigation and its outcome.
The documents sought by this category comprise email chains in August to September 2022 between various academics with subject lines that refer to Joe Stella or to complaints handling. I am satisfied by reference to the date of the emails, the parties to the emails and the subject line, that the emails are relevant to the issues raised by incidents two and three. The emails either refer to Joe Stella and/or ‘concerns about complaints handling’. The two emails between Professor Byrne and Professor Carmignani that refer in the subject line to ‘FYI’ and ‘Items’ respectively are included because of their date and the fact they were parties to email chains a few days either side which referred specifically to Joe Stella or to complaints handling.
I propose to allow production of the documents listed in this category.
Incident four documents.
The applicant argues that, during the preliminary investigation, Professor Fleming and others determined he should be excluded from the symposium and took steps to implement this by introducing criteria he could not meet. The applicant submits that the respondents did this because of his political belief or activity. The applicant says that an evidentiary basis for the contention is to be found in the records of internal discussions between university employees regarding the symposium.
The applicant seeks the production of all documents (including but not limited to emails and instant-messaging transcripts) held by the University and created, edited or sent between 1 August and 11 October 2022 (inclusive) in which any University employee discusses the question of criteria for presenters or attendees at the Symposium. The applicant says that the documents include an email chain involving Professor Chai, Professor Bodle and Dr Morgenbesser with the subject line ‘query RE dissertation topics, confirmation status’ dated 19-20 September 2022.
The documents sought are relevant to the question of whether criteria were developed in order to exclude the applicant from attendance. The request spans a time period from 1 August 2022 to 11 October 2022, within which time any University employee discusses the question of criteria for presenters or attendees at the symposium. In my view the request is relevant to incident four and is not oppressive.
I propose to allow this category.
Incident five documents
The applicant says that on 7 May 2023 he submitted a formal complaint to the University regarding incidents one to four seeking, amongst other things, disciplinary action against the students who lodged the conduct complaint and certain University employees. The University decided no action would be taken. The applicant argues that this decision would not have been made but for his political beliefs or activities. The applicant argues that an evidentiary basis for this contention is to be found in the records of internal discussions regarding his dissatisfaction with the respondent’s conduct.
The applicant seeks production of all documents (including but not limited to emails and instant-messaging transcripts) held by the University created, edited or sent between 6 September 2022 and 23 May 2023 in which his complaint, or the prospect that he would lodge a complaint, are discussed.
The applicant says the documents include (but are not limited to) an email chain involving Professor Fleming, Dr Morgenbesser and Ms Ridley with the subject line ‘Potential Student Complaint’ dated 8 September 2022 and three documents within the scope of RTI application 15253 but withheld by the respondent.
The documents are relevant to incident five as they will shed light on why no action was taken in relation to the applicant’s complaint. The request is for a defined time period and in relation to a particular issue and is not oppressive.
I propose to allow this category.
Race discrimination
The applicant argues that at least two of the signatories to the complaint against him are Indigenous and that he is not. He argues that the five incidents constituted discrimination on the basis of race, in effect, because he was treated less favourably than Indigenous students because the University was concerned those students would leave the University or not seek employment there or that other Indigenous Australians would be discouraged from engaging with the University.
The applicant seeks documents that set out targets and outcomes for Indigenous students and recruitment; that address any concern that the signatories might leave the University; in which the signatories canvass departing the University.
This claim raises issues of broader nature than the other claims. On the material available to me, the claims draw a long bow. It is right, in my view, to describe this request as fishing.
I do not allow this category of documents.

ANNEXURE A

Incident One documents

a)an email chain involving Prof. Juliet Pietsch, Prof. Carmignani and one or more of the complainants with the subject line ‘Twitter matter – urgent’, dated 18 August 2022;
b)an email chain involving Prof. Fleming, Prof. Carmignani, Prof. Pietsch, Dr Morgenbesser and one or more of the complainants with the subject line ‘Twitter and PhD students’, dated 18–19 August 2022;
c)an email chain involving Prof. Byrne, Prof. Fleming, Prof. Carmignani and Prof. Cindy Shannon with the subject line ‘Advice on a Twitter exchange’, dated 18–22 August 2022;
d)an email chain involving Prof. Pietsch and one or more of the complainants with the initial subject line ‘Discussion with Joe re: Twitter’, dated 19–22 August 2022;
e)an email chain involving Prof. Fleming, Prof. Pietsch and Prof. AJ Brown with the subject line ‘Meeting tomorrow’, dated 22 August 2022;
f)an email sent by JB to Prof. Pietsch with the subject line ‘Follow up’, dated 18 August 2022;
g)three documents either written by BS, JB or 3P or concerning their views, being within the scope of RTI application 15039 but withheld by the first respondent; and
h)an email sent by Prof. Fleming to BS, JB and 3P with the subject line ‘Outcome of your complaint against Mr Joe Stella’, dated 9 September 2022.

Incident Two and Three documents

a)an email chain involving Prof. Fleming, Prof. Carmignani, Prof. Pietsch and Dr Morgenbesser with the subject line ‘Complaint against Joe Stella’, dated 29 August 2022;
b)an email chain involving Prof. Fleming, Prof. Carmignani, Prof. Pietsch and Dr Morgenbesser with the subject line ‘Joe Stella article’, dated 28–29 August 2022;
c)an email from Prof. Fleming to Ms Farnsworth with the subject line ‘Joe Stella – draft letter’, dated 31 August 2022;
d)an email chain involving Prof. Fleming, Ms Farnsworth and Dr Morgenbesser with the subject line ‘Joe Stella – draft letter’, dated 31 August 2022;
e)an email chain involving Prof. Byrne and Prof. Carmignani with the subject line ‘Items’, dated 1 September 2022;
f)an email chain involving Prof. Byrne, Prof. Fleming and Prof. Carmignani with the subject line ‘Response to complaint about Joe Stella’, dated 6 September 2022;
g)an email chain involving Prof. Byrne and Prof. Carmignani with the subject line ‘FYI –’, dated 9 September 2022;
h)an email chain involving Prof. Fleming, Prof. Carmignani, Prof. Pietsch, Dr Morgenbesser and Ms Farnsworth with the subject line ‘My concerns regarding complaints handling’, dated 8–15 September 2022;

an email chain involving Prof. Fleming, Prof. Carmignani, Prof. Pietsch and Dr Morgenbesser with the subject line ‘My concerns regarding complaints handling’, dated 8–15 September 2022;

j)an email chain involving Prof. Fleming, Prof. Carmignani, Prof. Pietsch and Dr Morgenbesser with the subject line ‘My concerns regarding complaints handling’, dated 8–15 September 2022; and
k)an email chain involving Prof. Byrne, Prof. Fleming and Prof. Carmignani with the subject line ‘Response to complaint about Joe Stella’, dated 6–7 September 2022.

Incident Four documents

a)all documents (including but not limited to emails and instant-messaging transcripts) held by the University and created, edited or sent between 1 August and 11 October 2022 (inclusive) in which any University employee discusses the question of criteria for presenters or attendees at the Symposium; and
b)an email chain involving Prof. Andreas Chai, Prof. Kerry Bodle and Dr Morgenbesser with the subject line ‘query RE dissertation topics, confirmation status’, dated 19–20 September 2022.

Incident Five documents

a)all documents (including but not limited to emails and instant-messaging transcripts) held by the University and created, edited or sent between 6 September 2022 and 23 May 2023 (inclusive) in which the applicant’s complaint or the prospect that the applicant would lodge a complaint are discussed;
b)an email chain involving Prof. Fleming, Dr Morgenbesser and Ms Margaret Ridley with the subject line ‘Potential Student Complaint’, dated 8 September 2022; and
c)three documents within the scope of RTI application 15253 but withheld by the Respondent.

Race discrimination documents

a)all documents setting out the targets and outcomes for indigenous recruitment and retention for the Griffith Business School and School of Government and International Relations in force for the financial years 2022-23 and 2023-24;
b)all documents setting out the targets and outcomes for indigenous recruitment and retention in the performance and development plans (or similar) for Prof. Byrne, Prof. Fleming, Prof. Pietsch and Dr Morgenbesser for the financial years 2022-23 and 2023-24;
c)all documents addressing any risk or concern that the signatories may leave the University or choose not to seek employment with the University; and
d)all documents in which the signatories to the conduct complaint against the applicant (referred to as BS, JB or 3P by the applicant) canvass or are said to have canvassed departing the University, not seeking employment with the University, or discouraging other indigenous Australians from engaging with the University.