Rowe v Emmanuel COLLEGE (No.3) - [2013] FCCA 1113

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWE v EMMANUEL COLLEGE (No.3)

[2013] FCCA 1113

Catchwords:
PRACTICE AND PROCEDURE – Costs – whether usual rule that costs should follow the event should be departed from – costs should follow the event.

Legislation:

Federal Circuit Court of Australia Act 1999, s.79
Federal Circuit Court Rules 2001, part 21

Hughes v Western Australia Cricket Association (1986) ATPR 40-748

Applicant:

CHAD EVERETT ROWE

Respondent:

EMMANUEL COLLEGE

File Number:

BRG 208 of 2013

Judgment of:

Judge Jarrett

Hearing date:

7 August 2013

Date of Last Submission:

7 August 2013

Delivered at:

Brisbane

Delivered on:

7 August 2013

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondent:

Mr Morris of Queen’s Counsel

Solicitors for the Respondent:

Corney & Lind Lawyers

ORDERS

Order 2 of the orders made on 15 April 2013 be discharged.
The applicant pay the respondent’s costs of and incidental to the proceedings, including this application, fixed in the sum of $29,988.49.
Otherwise, all outstanding applications and responses be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 208 of 2013

CHAD EVERETT ROWE

Applicant

And

EMANNUEL COLLEGE

Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application for costs. There are two aspects to it. On 15 April, I determined a summary dismissal application whereby I dismissed part of the claim made by the applicant against the respondent. In respect of that summary dismissal application I ordered that the applicant pay the respondent’s costs to be agreed between the parties or, failing agreement, to be fixed by the Court on the next Court date. On the next Court date the fixing of the costs was adjourned. In this application the respondent seeks that order to be discharged and otherwise taken up in the costs order that it says should now be made.
The second aspect to the application is an application by the respondent that the applicant pay its costs of and incidental to the application more generally. That application has come about because after a trial of the proceedings, or what was left of the proceedings after the summary dismissal application, I dismissed the application made by the applicant in its entirety.
The judgment that I gave in the summary dismissal application and the judgment that I gave following the final trial of the proceedings are both the subject of appeals, I think, to the Federal Court of Australia. They have not yet been heard. Nonetheless, the respondent says it is entitled to its costs.
This Court has power under s.79 of the Federal Circuit Court of Australia Act 1999 to make an order for costs. By that section, and subject to presently immaterial exceptions, costs are in the discretion of the Court.
Part 21 of the Federal Circuit Court Rules 2001 provides the rules that govern the making of applications for costs and the making of orders for costs.
Ordinarily, costs are awarded in this Court according to schedule 1 of the Federal Circuit Court…

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 1113
Decision Date: 7 August 2013

CaseChat Overview and Summary

Rowe v Emmanuel College (No.3) concerned a dispute between the applicant, Ms Rowe, and the respondent, Emmanuel College. The applicant sought to have certain orders made by the court in previous proceedings set aside. The matter came before Judge Jarrett in the Supreme Court of Queensland.

The primary legal issue before the court was whether the applicant had established grounds to set aside the consent orders previously made. This involved considering the principles governing the setting aside of consent orders, particularly in circumstances where one party alleges they did not fully understand the nature or effect of the orders they consented to. The court also had to determine if the applicant's asserted lack of understanding constituted a sufficient basis to depart from the usual finality afforded to consent orders.

Judge Jarrett applied the well-established principle that consent orders are generally treated as having the character of a contract and an order of the court, and are not lightly set aside. His Honour considered the evidence presented by the applicant regarding her alleged lack of understanding at the time the consent orders were made. After reviewing the evidence and submissions, the court found that the applicant had not discharged the onus of demonstrating that the consent orders should be set aside. The court was not satisfied that the applicant lacked a proper understanding of the orders or that there were any other compelling reasons to depart from the finality of the consent orders.

The application to set aside the consent orders was dismissed.

Orders