Bebendorf v Emmanuel College

Case [2025] QSC 283

SUPREME COURT OF QUEENSLAND

CITATION:

Bebendorf & Ors v Emmanuel College [2025] QSC 283

PARTIES:

BLAKE AUGUST BEBENDORF (by his litigation guardians, RODNEY CRAIG BEBENDORF and ELYSSA DIANNE BEBENDORF)

(first plaintiff)
AND
RODNEY CRAIG BEBENDORF
(second plaintiff)
AND
ELYSSA DIANNE BEBENDORF
(third plaintiff)

v
EMMANUEL COLLEGE

A.C.N 010 563 256  

(Defendant)

FILE NO:

BS 16642/24

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 October 2025

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2025

JUDGE:

Wilson J

ORDER:

1.   Each party bear their own costs of the proceeding.

CATCHWORS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS WHERE PROCEEDINGS DISCONTINUED – where the plaintiffs brought a claim against the defendant for various relief relating to the termination of the first plaintiff’s enrolment contract – where the plaintiffs discontinued the proceeding on the second day of hearing – where both parties seek costs – whether there be no order as to costs

Uniform Civil Procedure Rules1999 (Qld) rr 304(2), 307, 681, 685

Chapman v Luminis Pty Ltd [2003] FCAFC 162

Fairfield Services Pty Ltd (in liq) v Leggett (2020) 5 QR 50

Nolan v Warne [2001] QCA 537

ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548

Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622

COUNSEL:

D Savage KC and M Paterson for the plaintiffs
G Handran KC and R McDermott for the plaintiffs

V Brennan for the defendant

SOLICITORS:

Hannams Solicitors Pty Ltd for the plaintiffs

Vocare Law for the defendant

Introduction

  1. On 23 December 2024, the plaintiffs filed an originating application seeking interim and final relief against the defendant College. The first plaintiff was a former pupil of the College. The second and third plaintiffs are the first plaintiff’s parents. This proceeding arose following the termination of the first plaintiff’s enrolment at the College on 25 October 2024.

  2. The plaintiffs originally sought relief in the following terms:

    (a)an interim order restraining the defendant from taking any step or giving effect to the first plaintiff’s expulsion (Order 1);

    (b)a declaration that the first plaintiff’s expulsion was “void and of no legal effect” (Order 3);

    (c)an order that the first plaintiff’s expulsion “be set aside” (Order 4);

    (d)a further declaration that the Enrolment Contract “remains in effect” (Order 5);

    (e)specific performance of the Enrolment Contract (Order 5), which is repeated in Order 7; and

    (f)a permanent injunction restraining the defendant from “taking any step pursuant or otherwise giving effect to the [first plaintiff’s] expulsion”.[1]

    [1]           The plaintiffs subsequently abandoned the relief at (a), (d), (e) and (f).

  3. The originating application came on before me on the applications list on 20 January 2025, where I made various directions including that the plaintiff file a statement of claim.

  4. The trial was set down to commence on 19 May 2025 and, as at that day, the only relief the plaintiff sought was:

    (a)a declaration that the enrolment contract…

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AGLC
Bebendorf v Emmanuel College [2025] QSC 283
Case
[2025] QSC 283
Decision Date

CaseChat Overview and Summary

The court was tasked with determining the allocation of costs between Bebendorf and Emmanuel College in a case that involved complex issues surrounding the expulsion of the plaintiff from the College. The primary concern was the creation and dissemination of a list ranking female students based on their "rapeability," which led to the plaintiff's expulsion. The plaintiff sought an indemnity basis for the costs, while the defendant argued for a similar order against the plaintiff. This case also involved the question of mid-hearing discontinuance, where the plaintiffs abandoned their relief claims for an alternative remedy. The court had to consider the general rule on costs under the Uniform Civil Procedure Rules and the specific circumstances of this case, including the discontinuance.

The legal issues before the court were primarily centered around the general principles of costs in civil proceedings, particularly under rules 681, 685, and 307 of the Uniform Civil Procedure Rules. The court had to determine whether the circumstances warranted a departure from the general rule that costs follow the event. The court also needed to consider the impact of the mid-hearing discontinuance on the costs order. Furthermore, the court had to weigh the conduct of both parties, including the defendant's efforts to support the plaintiff's enrolment in an alternative school and its attempts to protect third-party identities.

The court found that the circumstances did not justify a departure from the general rule that costs follow the event. Both parties had conducted themselves reasonably, and there were no special or exceptional circumstances that warranted an order for one party to bear the costs of the other. The court noted that the defendant had defended the proceeding on the basis that it was entitled to expel the plaintiff and had made efforts to mitigate the impact of the situation. The court also considered the plaintiff's decision to discontinue the proceeding and seek alternative remedies, which complicated the costs issue. Given these factors, the court concluded that the most appropriate and just order was for each party to bear their own costs.

Each party bear their own costs of the proceeding.

Orders

Orders of the court

1. Each party bear their own costs of the proceeding.

Background

Background to the litigation

The only remaining issue to be determined is the question of costs. The parties have provided extensive written submission on costs and there have been two further hearings after the hearing concluded on 20 May 2025. The plaintiffs’ position is that the defendant should bear the costs of the proceeding on an indemnity basis or, alternatively, on the standard basis. The defendant seeks the same order against the plaintiff. BackgroundCircumstances of the plaintiff’s expulsion To understand the importance of the defendant’s statement made in court on 20 May 2025, it is necessary to detail the circumstances of the plaintiff’s expulsion and the parties’ conduct leading up to, and during, the proceedings. On or about 7 October 2024, the first plaintiff and a friend created a list ranking girls in their broader friend group based on the shape of their bottoms (the “initial list”). The first plaintiff recorded the list on the ‘notes’ application on his phone. After the first plaintiff subsequently disseminated the initial list to approximately 8 other boys, others began editing the shared list on their devices. The initial list subsequently morphed into a ‘rape list’ (“the final list”), where girls were then ranked on their level of ‘rapeability’. In an affidavit dated 19 December 2024, the first plaintiff deposes to ceasing involvement with the initial list on 12 October 2024, when he says he deleted the list from his phone. He maintains that he never created, nor contributed to, the final list and that he only became aware it existed after it was referred to in a video posted by other students on 16 October 2024. On 16 October 2024, the principal of the defendant College received a complaint regarding “‘lists’ that had been made about girls in senior school.” On 21 October 2024, the College’s Pastoral Care Director interviewed the first plaintiff. On 23 October 2024, the first plaintiff was invited to attend a show cause meeting at the College which then took place on 25 October. On 25 October 2024, the plaintiff’s enrolment was terminated because of his “involvement in a serious, high-harm breach of the College’s behaviour expectations”. The circumstances of the first plaintiff’s termination were complicated by media incorrectly representing that three boys from the defendant College (including the first plaintiff) were no longer enrolled after compiling a “rape list”. That publication coincided with the College circulating a statement to the families of all year 10 students. The statement represented that a “small number of students” were no longer enrolled following an investigation into “inappropriate online behaviour” of some of the students that involved “offensive and inappropriate comments about female students”. On 29 October 2024, after the parents of another expelled student prompted the defendant to correct the record, the defendant stated, “it is an unfortunate reality that the media will often report events inaccurately”.Parties’ conduct leading up to trial

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ultimately, this is a case where each party should bear their own costs. Conclusion Accordingly, in my view, the most appropriate and just order is for each party to bear their own costs.

Ratio Decidendi

Legal Principle Established

Accordingly, the defendant submits that they:(a)did not, and could not, know the true intent of the proceeding until it was disclosed in the plaintiffs’ two costs submissions; (b)defended the proceeding on the basis that they were entitled to expel the first plaintiffs; (c)by its Principal, had supported the first plaintiff’s enrolment in an alternative school and expressed its intention to continue that support (which is unchallenged on the evidence); (d)sought to protect the identity of, and the consequences of disclosure on, third parties at great expense to itself and in the face of staunch opposition; (e)made offers which were reasonable, in circumstances where the relief sought in the proceeding was ultimately abandoned for some other “remedy” about which the defendant was ignorant; and(f)made concessions in its affidavit material, by its counsel in court and in its documents which were appropriate and, on an objective view, consistent with the ultimate reason for the plaintiffs’ discontinuance. Consideration The general rule on costs is found in r 681(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”): “681 General rule about costs(1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.” While the question of costs is ultimately in the court’s discretion, the general rule on costs should only be departed from in the event of special or exceptional circumstances. The question of costs in this case is more complex due to the mid-hearing discontinuance. Rule 685 of the UCPR states: “685 Costs if further proceedings become unnecessary (1) If, for any other reason, it becomes unnecessary to continue a proceeding other than for deciding who is to pay the costs of the proceeding, any party to the proceeding may apply to the court for an order for the costs. (2) The court may make the order the court considers just.” Rule 307 of the UCPR states: “307 Costs(1) A party who discontinues or withdraws is liable to pay -- (a)the costs of the party to whom the discontinuance or withdrawal relates up to the discontinuance or withdrawal; and (b)the costs of another party or parties caused by the discontinuance or withdrawal.(2)If a party discontinues or withdraws with the court’s leave, the court may make the order for costs it considers appropriate.” Regarding the question of costs for discontinued proceedings, McPherson JA considered the power under r 685 UCPR (formerly r 683) in Nolan v Warne [2001] QCA 537, stating: “[8] If for any reason it becomes unnecessary to continue a proceeding other than to decide who is to pay the costs, then by UCP Rule 683(1), any party may apply to the court for an order for the costs, and the court may make an order it considers just: r 683(2). Rule 683 is virtually a rescript of O 91, r 16 of the recently repealed Supreme Court Rules, which was considered in R v Gold Coast City Council, ex p Raysun Pty Ltd [1971] QWN 13. In awarding costs to the applicant in that case, Matthews J on behalf of the Full Court said that it was enough that the applicant had reasonable grounds for complaint in respect of the respondent Council and an arguable case to support the taking of proceedings up to the time when the Council acceded to the application.”