Stella v Information Commissioner & Anor

[2024] QCATA 24

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stella v Information Commissioner & Anor  [2024] QCATA 24

PARTIES:

STELLA

(applicant/appellant)

v

INFORMATION COMMISSIONER
GRIFFITH UNIVERSITY

(respondents)

APPLICATION NO/S:

APL013-24

MATTER TYPE:

Appeals

DELIVERED ON:

8 March 2024

HEARING DATE:

8 March 2024

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President

ORDERS:

1.     It is ordered that in respect of the Information Commissioner’s application to be removed as a party to the proceeding:

(a)     The application is granted and the Information Commissioner is removed as a party from this proceeding;

(b)     The proceeding continue against the second respondent as respondent, that is, Griffith University; and

(c)     There are no order as to costs in respect of the application by the Information Commissioner to be removed as a party.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – parties to proceeding – appeal to Appeal Tribunal from decision of Information Commissioner – Information Commissioner made respondent – other contradictor available – Information Commissioner removed as a party

Information Privacy Act 2009 (Qld) s 132

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146

Stiles v Information Commissioner [2021] QCATA 152

Underwood v Metro North Hospital and Health Service & Anor [2022] QCATA 124

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

Background

1. On or about 24 January 2024, Mr Stella filed an application to appeal in QCAT against a decision of the Information Commissioner made on 7 December 2023:   S41 and Griffith University [2023] QICmr 64. The application named the Information Commissioner as first respondent and Griffith University as second respondent.

2. That decision was the result of external reviews against decisions of Griffith University in respect of access applications made by Mr Stella under the Information Privacy Act 2009 (“the IP Act”) seeking information with respect to the management and investigation of a complaint that had been made about the applicant. (Case numbers 317075 and 317149)

3. The first application sought access to all documents about the complaint and the University’s management of the complaint. The second application sought access to all documents created, received or sent by named University staff about the applicant other than those considered in the first application.

4. The decision by the Information Commissioner is one in which Mr Stella has a right to appeal to the Appeal Tribunal of QCAT (QCATA) on a question of law: s 132 IP Act.

5. Griffith University has filed a notice of address for service in QCATA.   

Grounds of appeal

1. The application to appeal states that the grounds of appeal as follows: 

   Regarding 317075:   text of decision and recent political activity of OIC give rise to apprehension of bias; decision rests on non-existent facts; decisions rest on invented factor favouring nondisclosure; decision-maker erred in interpretation of ‘administration of justice’ factor; decision-maker erred in interpretation of ‘management function’ factor; decision-maker failed to consider respondent’s invocation of ‘deliberative process’ factor.

   Regarding 317149: text of decision and recent political activity of OIC give rise to apprehension of bias; decision-maker failed to consider certain deletions made by respondent; decision-maker involved IP Act s52 after deadline; decision-maker incorrectly held IP Act to not apply to certain documents at issue.

Orders sought by Mr Stella from QCATA

1. In QCATA, Mr Stella seeks orders of QCAT setting aside the decision of the Information Commissioner, and directing Griffith University to release copies of certain documents in full, releasing copies of certain documents subject only to deletions on the grounds of irrelevance and return the matter as it relates to deletions on the grounds of irrelevance to the Information Commissioner for reconsideration.

Application by Information Commissioner to be removed as a party to the proceedings

1. On 29 January 2024, the Information Commissioner filed an application to be removed as a party to the proceedings and filed submissions in support. 

2. Mr Stella objects to that course and has filed written submissions in support of his opposition dated 19 February 2024.  

3. In response the Information Commissioner has filed written submissions supporting her removal as a party to the proceedings dated 20 February 2024. 

4. Griffith University consents to the removal of the Information Commissioner as a party.   

Determination of the Information Commissioner’s application to be removed as a party

1. I have considered the submissions of the Information Commissioner and of Mr Stella and of the cases referred to therein. 

2. I agree with the approach taken by Judicial D J McGill SC in Stiles v Information Commissioner [2021] QCATA 152 and Judicial Member Forrest SC in Underwood v Metro North Hospital and Health Service & Anor [2022] QCATA 124, that the appropriate contradictor in appeals of this nature is the original decision maker. I do not consider that any of the arguments advanced by Mr Stella warrants the retention of the Information Commissioner as a party, including the possibility that QCATA may, in a s 132 appeal, make orders under section 146(c) and/or (d) of Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”).

3. In these proceedings, the appropriate contradictor is Griffith University. 

4. In conclusion, I find that the most appropriate course to take in the circumstances of this case is that the Information Commissioner should be removed as a party.   

5. To clarify any uncertainty, a result of this is that the Information Commissioner is not required to attend at the directions hearing in these proceedings which is listed for 12 March 2024.

Orders

1. It is ordered that in respect of the Information Commissioner’s application to be removed as a party to the proceeding:

   (a)The application is granted and the Information Commissioner is removed as a party from this proceeding;

   (b)The proceeding continue against the second respondent as respondent, that is, Griffith University; and

   (c)There are no order as to costs in respect of the application by the Information Commissioner to be removed as a party.