Ejueyitsi v Bond University - [2013] FCCA 2402

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJUEYITSI v BOND UNIVERSITY

[2013] FCCA 2402

Catchwords:
COSTS – Whether costs should follow the event where primary application summarily dismissed.

Legislation

Federal Circuit Court Rules 2001, Schedule 1

Ejueyitsi v University of Queensland [2011] FMCA 281

Applicant:

VINCENT B EJUEYITSI

Respondent:

BOND UNIVERSITY

File Number:

MLG 111 of 2012

Judgment of:

Judge Jarrett

Hearing date:

17 May 2013

Date of Last Submission:

17 May 2013

Delivered at:

Brisbane

Delivered on:

17 May 2013

REPRESENTATION

The Applicant appearing on his own behalf

Solicitor for the Respondent:

Mr Burgess

Solicitors for the Respondent:

Bartley Cohen

ORDERS

The applicant pay the respondent’s costs of and incidental to the initiating application fixed in the sum of $11,171.09 within twenty-eight (28) days of the date of these orders.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

MLG 111 of 2012

VINCENT B EJUEYITSI

Applicant

And

BOND UNIVERSITY

Respondent

REASONS FOR JUDGMENT

ex tempore

On 4 March 2013, I ordered that the applicant in these proceedings, Mr Ejueyitsi, pay the respondent to these proceedings, Bond University’s costs of and incidental to Mr Ejueyitsi’s application which I had summarily dismissed on 20 September, 2012 in a fixed amount.
By an application filed by Mr Ejueyitsi on or about 18 March, 2013 he sought that the costs order made against him be set aside. On 6 May, 2013 I ordered that the orders of 4 March, 2013 be discharged. I adjourned the hearing of the costs application to 10 May.
On 10 May, the application was further adjourned to today because Mr Ejueyitsi claimed that he had not received the original costs application and the material that supported it. It was adjourned so that he had the opportunity to look at that material. The matter has resumed before me this morning.
It is necessary to give something of the background to these proceedings. Mr Ejueyitsi commenced these proceedings on or about 7 February, 2012 when he filed an application in the Melbourne Registry of this Court. The proceedings related to his enrolment at Bond University and he alleged breaches of contract, negligence and contraventions of the Australian Consumer Law. He sought damages including the payment of fees, costs of the action and compensation for psychological trauma.
The matter came before a Federal Magistrate in Melbourne on or about 21 March, 2012. There is a dispute between the parties about what occurred on that day but the dispute has been resolved. Turner FM transferred the proceedings to Brisbane but did nothing else and the matter was placed in my docket for further conduct.
There were some directions made along the way but the respondent applied for summary dismissal of the proceedings. That application was heard on 21 June, 2012. By an order that I made on 20 September, 2012, I summarily dismissed Mr Ejueyitsi’s application.
On 10 October, 2012 an appeal was filed against my decision and on extension of time was necessary to prosecute that appeal. By and by that application came before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 2402
Decision Date: 17 May 2013

CaseChat Overview and Summary

The applicant, Mr. Ejueyitsi, sought judicial review of a decision by Bond University to terminate his enrolment in the Bachelor of Laws (LLB) program. Mr. Ejueyitsi alleged that the University's decision was unlawful, unreasonable, and procedurally unfair. The matter came before Judge Jarrett of the Supreme Court of Queensland.

The central legal issues before the Court were whether Bond University had acted unlawfully in terminating Mr. Ejueyitsi's enrolment, whether the decision was unreasonable, and whether the University had breached its duty to afford procedural fairness to Mr. Ejueyitsi. Specifically, the Court considered whether the University had followed its own policies and procedures in reaching its decision and whether Mr. Ejueyitsi had been given adequate opportunity to respond to the concerns raised about his academic performance.

Judge Jarrett found that Bond University had acted within its contractual rights and its published policies when terminating Mr. Ejueyitsi's enrolment. The Court determined that the University had provided Mr. Ejueyitsi with sufficient notice of the concerns regarding his academic progress and had afforded him adequate opportunity to present his case. The Court concluded that the University's decision was neither unlawful nor unreasonable, and that procedural fairness had been observed.

Consequently, the application for judicial review was dismissed.

Orders