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

1. 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

1. 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. 

2. 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. 

3. 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. 

4. 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.

5. 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. 

6. 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.

7. 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 Logan J in the Federal Court of Australia.  The basis upon which my decision was challenged appears to be that Turner FM had, on 21 March, 2012 heard, determined and refused the respondent’s summary dismissal application so that same application could not be re-agitated before me.  According to the argument, I was, according to Logan J’s summation of that argument functus officio.

8. Leave to extend time within which to appeal was refused because I was not functus officio.  Logan J carefully considered what had occurred before Turner FM, as he then was, in Melbourne and concluded that the summary dismissal application that had been made, perhaps orally on the morning, had not been dealt with by the Court but rather the proceedings simply transferred to Brisbane.

9. Consequent upon my summary dismissal of the proceedings, the respondent applied for its costs.  The application was made on 17 October, 2012.  The respondent asserts that the application was served upon the applicant.  There seems to be some dispute about that.  But the dispute now is no longer fertile.  Mr Ejueyitsi has had the material and has made the submissions he wishes to make in respect of the costs application. 

10. The starting point is to consider the nature of these proceedings. As I have already suggested they were for damages for breach of contract, negligence, damages or compensation pursuant to the Australian Consumer Law and damages for psychological trauma consequent upon those things.

11. The proceedings are not such as to engage any statutory prohibition against the making of an order for costs.  Ordinarily costs should follow the event.  In this case, that would mean that the applicant should pay the respondent’s costs because his application has been unsuccessful.

12. In response, Mr Ejueyitsi argues that no costs orders should be made and that the original decision, summarily dismissing these proceedings, ought to be revisited.  He claims in a confused and confusing way that the respondent has in some way misled the Court or has been fraudulent in the way in which it has secured the orders it has in this case. 

13. I do not understand his argument.  He referred me to two documents.  One is the decision of Burchardt FM, as he then was, in Ejueyitsi v University of Queensland [2011] FMCA 281. That decision dealt solely with the question of whether those proceedings should be transferred from Melbourne to Brisbane. The proceedings were transferred to Brisbane according to the document that Mr Ejueyitsi has given me. I am not sure, however, what the significance of that decision is in the present matter.

14. The second document that Mr Ejueyitsi handed up was an order made by me in the proceedings transferred to Brisbane from Melbourne by Burchardt FM.  That is proceedings MLG 279/2011 Vincent Ejueyitsi v University of Queensland.  The second document is a directions order that I made on 14 July, 2011 wherein that application was set down for final hearing commencing on 23 September, 2010.  I made some trial directions.  Mr Ejueyitsi’s argument seems to be this:  the application that he made against the University of Queensland was commenced in Melbourne.  It was transferred from Melbourne to Brisbane.  And when it was transferred from Melbourne to Brisbane, it was dealt with by this Court by setting it down for a trial of the issues on a final basis.

15. He says that the respondent, or the respondents solicitors because the respondents solicitors in each case are the same, ought to have brought those decisions, that of Burchardt FM, and my directions orders to my attention in this case and that procedure ought to have been followed here.  That is to say, rather than there being some form of summary dismissal, the case needed to be looked at more carefully.  He says that there needed to be evidence.  There needed to be a trial.

16. I have no recollection of the other proceedings.  Whether or not the respondent in the other proceedings brought a summary dismissal application is neither here nor there.  What is relevant is that in this particular application, the respondent brought a summary dismissal application.  It was determined on its merits and it was successful.

17. The existence of the reasons for judgment and the orders made by Burchardt FM in the case involving the University of Queensland and my directions orders in that same case bear nothing on the decisions that needed to be made on the respondent’s summary dismissal application in this case.  They are, in my view, simply irrelevant. 

18. Nothing has been said and nothing is contained in the two sets of written submissions that Mr Ejueyitsi has relied upon in these proceedings, which would suggest that costs should not follow the event.  Costs ought to follow the event. 

19. The respondent seeks its costs on what might loosely be described as an indemnity basis but there is no reason, it seems to me, not to award costs on the usual basis. That is to say, pursuant to schedule 1 of the Federal Circuit Court Rules 2001. The relevant cost calculations are set out in the affidavit of Paul Burgess filed 8 May, 2013. Exhibit Q has a calculation according to the scale used by this Court. Although Mr Ejueyitsi says he has no information about how those costs are calculated, he does. The information is in Mr Burgess’ affidavit at exhibit Q when read with schedule 1 to the Federal Circuit Court Rules.

20. The total costs and disbursements, according to annexure Q is $11,171.09.  That is an entirely appropriate amount.  Far less than what it has in fact cost the respondent in these proceedings. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 May, 2013

Associate: 

Date:  28 February 2014