Bebendorf & Ors v Emmanuel College [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 Rules 1999 (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 -- 1 of 25 -- 2 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 [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: 1 The plaintiffs subsequently abandoned the relief at (a), (d), (e) and (f). -- 2 of 25 -- 3 (a) a declaration that the enrolment contract was wrongfully terminated, and that the first plaintiff’s expulsion was invalid and of no effect; and (b) damages in the amount of $106,000.00 for boarding and tuition fees at Nudgee College. [5] On the morning of the first day of trial, the hearing was adjourned for the parties to provide written submissions for an order suppressing the parties’ names. [6] On the second morning of the trial, the hearing took a different turn when counsel for the defendant made a statement in open court (“the defendant’s statement”) upon which the plaintiff discontinued the proceedings. [7] The plaintiffs state that the reason for the discontinuance was that the proceedings became unnecessary. A Notice of Discontinuance was filed by the plaintiffs on 29 May 2025. [8] 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. Background Circumstances of the plaintiff’s expulsion [9] 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. [10] 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. [11] 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. [12] On 16 October 2024, the principal of the defendant College received a complaint regarding “‘lists’ that had been made about girls in senior school.” [13] On 21 October 2024, the College’s Pastoral Care Director interviewed the first plaintiff. [14] 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. -- 3 of 25 -- 4 [15] 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”. [16] 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”. [17] 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”. [18] 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 [19] On 20 November 2024, after the first plaintiff’s expulsion, the plaintiffs made an open offer to the defendant seeking from the defendant: “(a) an acknowledgement from the school that its purported termination of [the first plaintiff’s] contract of enrolment was invalid and of no effect; (b) that the parties enter into a confidential deed of settlement which includes the following terms: i. a mutual non-disparagement clause; ii. the school providing a letter of endorsement or support of [the first plaintiff] which our clients can use in applying to other schools; and iii. a requirement that the school support [the first plaintiff’s] admission to another school if contacted by another school or educational institution.” [20] The defendant rejected this offer on 21 November 2024. [21] On 23 December 2024, the plaintiffs filed an originating application with supporting affidavits. Thereafter, further affidavits were filed on behalf of the parties. [22] On 24 January 2025, the defendant made an offer to settle the proceeding on the basis that each party bear their own costs. [23] On 28 January 2025, the plaintiffs’ solicitor sought clarification on whether the defendant’s offer was made on the basis the proceeding be dismissed. There was no response to this clarification put before me, if one was ever given. The plaintiffs did not respond to the offer. -- 4 of 25 -- 5 [24] On 29 January 2025, the plaintiffs filed their statement of claim. Notably, in paragraphs 21 and 22, the plaintiffs pleaded: “21. On a date unknown between 12 and 16 October 2024, … one or more of the other boys: (a) created a “rape list” (Final List); (b) shared the Final List with the [first plaintiff] and Other Boys; and (c) broadcast the Final List to one or more females in the friendship circle… 22. The [first plaintiff] did not: (a) participate in; or (b) know about, the creation or publication of the Final List in the preceding paragraph before those events occurred; and (c) had no known, or reasonably practicable, ability to prevent those Other Boys from engaging in the conduct in paragraph 21 [publishing the “rape list”], in that: (i) had the [first plaintiff] deleted the Initial list or what became of the Initial list, based on the matters above in this paragraph, it is to be inferred that the (or those) (Other Boy(s)) who participated in creating the Final List would have done so nonetheless; (ii) based on the matters in paragraphs 18 and 20 the [first plaintiff] believed that his act in deleting the current “List” deleted the Initial list and edits since made to it.” [25] In its defence, filed 26 February 2025, the defendant responded to these paragraphs: “31. As to paragraph 21 of the Statement of Claim, the College: (a) says the Student from the Other School created the Final List; (b) otherwise does not admit the allegations pleaded therein on the usual grounds. 32. As to paragraph 22 of the Statement of Claim: (a) The College objects to paragraph on the basis of the Irrelevancy Objection; (b) The College admits the [first plaintiff] did not create nor edit the [rape list]; -- 5 of 25 -- 6 (c) the College denies subparagraph 22(c)(i) on the basis that it is untrue; (d) as an explanation for the denial in subparagraph (c), the College says: (i) if the [first plaintiff] did not create the Initial List; or (ii) if the [first plaintiff] did not publish the Initial List; or (iii) if the [first plaintiff] had told those to whom he published the Initial List that they were not to change the Initial List and were to immediately delete it upon receipt; then (iv) it is equally reasonable to infer those who participated in creating the Final List would never have done so. (e) the College otherwise does not admit the allegations pleaded therein on the usual grounds.” [26] On 17 April 2025, the defendant made a second offer to the plaintiffs. The terms of the offer were that the plaintiffs discontinue the proceedings with an order that the plaintiffs pay the defendant’s standard costs up to the date of the offer. The plaintiffs did not respond to the second offer. Plaintiffs’ written opening at trial [27] Ultimately, the proceedings were discontinued by the plaintiff on 20 May 2025 prior to opening its case in court. Accordingly, the premature “finalisation” of the proceedings, means that I do not have the benefit of evidence tested within the framework of the pleadings as to the issues to be determined. [28] However, both parties provided written submissions, prior to the first day of trial, framing the issues to be determined at the trial. [29] The plaintiffs stated that the defendant had, as a minimum, a contractual obligation by its principal to afford the first plaintiff procedural fairness. They submitted the defendant breached this obligation by failing to put to the first plaintiff “the allegations of misconduct”, which would ultimately form the basis of his expulsion, and failing to give him “an adequate opportunity to respond”. [30] Rather, the plaintiffs stated that the defendant relied on vague assertions that the first plaintiff was involved in “a serious, high-harm breach of College behaviour expectations”. At the show cause meeting, the plaintiffs state that it was not put to the first plaintiff with any particularity (or at all) what conduct the first plaintiff was alleged to have engaged in. [31] Accordingly, the plaintiffs stated that the defendant failed to give the first plaintiff an adequate opportunity to respond to the allegations. -- 6 of 25 -- 7 [32] This, the plaintiffs say, is significant in circumstances where the conduct at the heart of this case comprises a series of incidents starting with the publication of the initial list, then involving lists ranking girls on various other attributes, then involving girls making lists ranking boys on various attributes and culminating in the publication of the final list. [33] The plaintiffs state that the conduct and harm associated with participating in the creation of the initial list is substantially less serious than the conduct and harm associated with participating in the creation of the final list. However, by virtue of the defendant’s failure to properly articulate allegations of misconduct to the first plaintiff, he had no way of knowing whether or not he was being alleged to have contributed to the final list, the initial list, or to have engaged in some other conduct. He was, therefore, unable to adequately respond to the actual concerns and allegations made by the defendant against him. [34] Accordingly, the plaintiffs state that, in circumstances where the defendant was acutely aware of the need to be seen to take action: (a) the failure to put to the first plaintiff the precise conduct he was engaged in; (b) the differential treatment as between him and another student; and (c) the failure to fully investigate the making of lists (including the lists said to have been created by girls at the school) can only lead to the conclusion that the defendant’s decision to terminate the first plaintiff’s enrolment was not tied to the conduct he actually engaged in. [35] Rather, the plaintiffs’ position is that the outcome was designed to protect the defendant’s reputation by appearing to take firm action, regardless of whether it was logical, fair, or reasonable as applied to the first plaintiff. [36] Accordingly, the plaintiffs stated that the defendant breached its contractual obligation to afford procedural fairness to the first plaintiff. It follows that the defendant breached the enrolment contract. [37] The plaintiffs stated that, as a consequence of this breach, the first plaintiff had been unable to find a school on the Gold Coast and had to go to a boarding school in Brisbane. The plaintiffs claim the costs of the additional tuition and boarding school fees. Defendant’s written opening at trial [38] In relation to the first plaintiff’s involvement with the final list, the defendant stated in its written opening that: “18. It is uncontroversial that on 7 October 2025, the [first plaintiff] created a document with another student (Boy 1) which listed girls who attended the College according to the [first plaintiff’s] and Boy 1’s “subjective view of the shape of the girls’ bottoms” … -- 7 of 25 -- 8 19. The Initial List was changed by the [first plaintiff], in the following days. At a time after the [first plaintiff] stopped editing the Initial List (which appears to be around 12 October), others made changes to the Initial List and it was subsequently referred to as a “Rape List”. It is uncontroversial that the College did not allege that the [first plaintiff] was a participant in adding names or other details to the Rape List”. [39] The defendant’s opening submission focused on the contractual dispute and stated that: (a) the critical issue in the proceeding is whether the Formal Complaints Policy was incorporated or implied into the Enrolment Contract; (b) the Enrolment Contract required the College to put to the Student the allegations of misconduct for the student to have been allowed an adequate opportunity to respond; (c) the relevant “allegations of misconduct” in the present case were that the first plaintiff was one of the co-creators of the initial list and he shared that list with his friends; (d) no other misconduct is alleged to have been engaged in by the first plaintiff and no other conduct is alleged (by pleading or otherwise) to form the basis of the principal’s decision; and (e) the first plaintiff was sufficiently apprised of the misconduct alleged against him.2 The Defendant’s Statement on 20 May 2025 [40] On the morning of 20 May 2025, the following exchange occurred with counsel: “HER HONOUR: Which brings me to that first sentence. That seems to be, from reading the material, the greatest concern for your party? “It is clear, as I understand on the material, that he did not do so”. MR SAVAGE: That’s right, your Honour. That’s - - - our case. HER HONOUR: Well, but – that is not a – that is not contested - - by Mr Brennan. MR BRENNAN: That’s correct, your Honour. MR SAVAGE: Well, it’s right that the pleading says that, but that’s because the pleading ruling construes what, in fact, happened, if one goes through - - - the documents”. [41] I then directly asked counsel for the defendant: “HER HONOUR: Mr Brennan, you do not say that the plaintiff wrote that rape list. 2 Namely, that he was a co-creator of the initial list and that he distributed it to his friends by using the Snapchat application on his phone. -- 8 of 25 -- 9 MR BRENNAN: No”. [42] I asked the question in many ways, including: “HER HONOUR: Okay. But in no way shape or form are you saying that the plaintiff wrote the rape list. MR BRENNAN: That’s correct.” … “MR BRENNAN: The position is – and it has always been our position – that he did not – neither start nor contribute to that rape list. HER HONOUR: Okay. MR BRENNAN: To the final list. HER HONOUR: Not – he’s not responsible for the creation of the rape list? MR BRENNAN: No”. [43] The following exchange then occurred which led to the defendant’s statement, which is at the centre of this costs dispute: “MR SAVAGE: … Whatever is said now, the decision was based on a lighting of those that’d created other lists, including the rape list, with him, and he was the one that was expelled as responsible for all these lists – or for his part in the lists - - - whereas nobody else was expelled. HER HONOUR: That – well, that’s your case. But, Mr Brennan, can you put on the record the defendant’s position into relation to this student’s involvement with any rape list. MR BRENNAN: This student did not create the rape list. The student did not participate in adding any names to the rape list. The student had no investment in the rape list.” [This is the defendant’s statement referred to at [6] above]. [44] Ultimately, the meaning of the defendant’s statement assumes some importance in the costs dispute between the parties. [45] The plaintiffs’ counsel then raised that the only question may be the question of costs: “HER HONOUR: So when you put this affidavit before me, a part of this affidavit, really, deals with the fact that the plaintiffs have felt public opprobrium because of the association with the rape list, but the defendant has made it very clear your client – the first plaintiff – did not write a rape list or was connected with it. -- 9 of 25 -- 10 MR SAVAGE: No. And it might’ve been that – if that’d been made plain in the decision to expel him, and in the letter that’d accompanied that “to all grade 10 cohorts” and to the – every family at the school, we probably wouldn’t be here. … MR SAVAGE: So it may just - - be a question of costs”. [46] After an adjournment, counsel for the plaintiff stated: “MR SAVAGE: Your Honour, the parties have agreed they [sic] way to progress, subject to your Honour’s orders. My side propose to seek leave to discontinue the proceedings, by reason of what has occurred in court this morning. Both parties wish to be heard as to the question of costs …” [47] This matter has proceeded on the basis that leave was not required as the parties consented to the discontinuance. The only remaining issue was that of costs. [48] The proceedings were adjourned to 22 May 2025 for the parties to file written submissions and material with respect to costs, which they did. [49] On 21 May 2025, counsel for the defendant requested, through my associate, that the court re-convene urgently. [50] However, the matter resumed the next day, on 22 May 2025, where it transpired that the proceedings had taken an unexpected turn. Essentially, correspondence had been exchanged between counsel where an allegation was made about the plaintiff’s legal representatives disclosing prohibited documents to their clients. Tensions rose between the parties to the point that Mr Morris KC appeared (on behalf of counsel for the defendant who may have had to appear as a witness) to de-escalate matters and put things in their proper context. I note that Mr Morris KC stated that, with hindsight, counsel for the defendant recognised that he could have been more subtle in his correspondence. While Mr Morris KC indicated that counsel for the plaintiffs need not withdraw from the matter, they did. However, in a generous gesture, senior counsel for the plaintiff provided further written submissions in relation to costs for which he did not charge. [51] Whilst counsel for the defendant raised a valid issue about the disclosure of prohibited documents, it appears that the manner in which he did caused this unnecessary kerfuffle. [52] Further written submissions were then provided by the defendant as to the issue of costs and the court reconvened at a later date to hear oral submissions. Plaintiffs’ Submissions on Costs [53] The primary basis for the plaintiffs’ submission that a costs order should be made in their favour is that the defendant’s statement on 20 May 2025 was its first unequivocal position that the first plaintiff had no involvement with the rape list. They submit this statement rendered the remainder of the proceedings unnecessary because it afforded them the public vindication that they sought all along. In the plaintiffs’ submission, the defendant’s refusal to publicly disavow the first plaintiff’s association with the rape list was the precipitating factor underlying the proceeding. -- 10 of 25 -- 11 [54] The plaintiffs state that the defendant’s statement of the first plaintiff having no “investment” is significant as it: (a) dissolved once and for all any suggestion that the first plaintiff was connected to, or responsible for, that conduct; and (b) was a change in the defendant’s position as it previously suggested the first plaintiff was ultimately responsible for the final list, even if he himself did not write it. [55] At the hearing on 6 June 2025, counsel for the plaintiffs framed his submission in this way: “MR HANDRAN: You will not find [the defendant’s statement], no matter how hard you divine the defence in light of the express and intentional way the statement of claim was pleaded in the context of what proceeded [sic] the litigation. You will not find that anywhere”. [56] Whilst in paragraph 32(b) of their defence the defendant admitted the first plaintiff “did not create nor edit the [rape list]”, the plaintiffs submit this still left open the question of whether the first plaintiff participated in, or knew about, the rape list. [57] In paragraph 32(c) and (d) of the defence, the defendant expressly denied that the first plaintiff had no ability to prevent other boys from creating the final list, sharing it between themselves or broadcasting it to one or more females. Accordingly, the plaintiffs submit that the defendant continued to assert that the first plaintiff participated in the final list, bore responsibility for it, and was invested in it. In those circumstances, the plaintiffs state that the taint of the final list continued to stain the first plaintiff until the defendant’s statement. [58] Prior to the defendant’s statement, the plaintiffs state that they had no choice but to bring the proceedings as the defendant refused to take steps to challenge the public perception that the first plaintiff created the final list. [59] The plaintiffs provided three submissions on why it would be incorrect to suggest that the defendant had “always” conveyed that the first plaintiff had no involvement in, or responsibility for, the final list. [60] Firstly, they submit it is factually incorrect, as demonstrated by the defendant’s pleadings. [61] Secondly, they submit that the defendant has historically conflated all “lists” as a singular infraction, without attributing authorship or responsibility to the students involved in the creation or modification of each distinct list. A fundamental premise of the defendant’s statement is that each list was separate and distinct, which the plaintiffs submit is a material departure from the defendant’s previous view. [62] On 31 October 2024, the defendant’s solicitors wrote to the plaintiffs’ solicitors, stating: “On our instructions, it is not in dispute that [the first plaintiff], with another student, created, published and distributed a list that rated female students on their physical features, and particularly intimate physical -- 11 of 25 -- 12 features … Whilst our client accepts that [the first plaintiff] may not have created the “most rapeable” list, the reality is that he failed to cease his involvement until females within the school community became aware and indicated that it would be reported to the College”. Then further, “The reality is that these lists have caused considerable harm to female students within the College, with reported safety concerns from these female students. This is a direct consequence of your client creating, publishing, and distributing the initial list, and then continuing his involvement over the following three-day period”. [63] Accordingly, the plaintiffs submit that the defendant did not, at any stage prior to the proceedings, make any concession that the student did not contribute to the final list, nor seek to differentiate between participation in the final list and the other lists. [64] Finally, the plaintiffs submit that the defendant provides no explanation for why the proceedings were discontinued. The plaintiffs state that this silent aversion appears to be that the proceeding was discontinued for no reason at all. Presumably, the plaintiffs wanted the defendant to address the fact that the discontinuance was due to their statement in court. [65] The plaintiffs submit that, if the defendant had accepted the plaintiffs’ offer in November 2024, the plaintiffs would have received sufficient relief on lesser terms. The offer only required the defendant to support the first plaintiff’s applications to other schools and agree to a non-disparagement clause. [66] Whilst damages remain in issue, the plaintiffs submit these are minor as compared to the cost of a full trial and contend that, by virtue of the College’s admissions, they have achieved the public and substantive vindication they sought in court before the media. [67] The plaintiffs submit that the damages were only ever ancillary to the main relief – being the declaration that the first plaintiff’s expulsion was invalid and ought to be set aside. [68] No declaration was sought by the plaintiff in the form of the defendant’s statement. However, as counsel for the plaintiff submitted: “It would not be an orthodox or appropriate thing to seek minute declarations of bits on which the ultimate declaration is sought. … The ultimate declaration gives you the relief”. [69] Accordingly, the plaintiffs submit that (in accordance with r 685(1) UCPR) it has become “unnecessary to continue [this] proceeding other than for deciding who is to pay the costs of the proceeding”. [70] The Court has a general discretion to make whatever order it considers just on the question of costs.3 The plaintiff submits that the discretion as to costs should be exercised in the plaintiff’s favour as it would be just to do so. 3 UCPR r 685(2). -- 12 of 25 -- 13 [71] Further, the plaintiffs submit that their conduct throughout the proceedings warrants a costs order in their favour as they conducted the proceedings reasonably and took appropriate steps to progress the matter with expedition. [72] Conversely, the plaintiffs submit that the defendant has not conducted the proceedings reasonably. In particular, they refer to the defendant suggesting that the plaintiffs provided false statements about the first plaintiff being unable to secure alternative schooling. The plaintiffs submit that, due to the defendant making “baseless attacks” and “serious allegations tantamount to allegations of perjury”, in conjunction with their failure to retract these allegations, they have not acted reasonably. [73] In the plaintiffs’ view, the defendant’s conduct has caused the plaintiff to incur significant costs through unreasonable and steadfast refusal to make a public statement vindicating the first plaintiff’s position (and instead making serious attacks on the plaintiffs without good reason to do so). Defendant’s submissions on costs [74] The defendant submits that they are entitled to their costs of the proceeding on the indemnity basis. However, the defendant also provides several alternatives, whereby they are entitled to their costs: (a) on the standard basis up to 28 February 2025 (on the filing of its defence) and thereafter on the indemnity basis; (b) on the standard basis up to 22 April 2025 (the date the defendant’s second offer to the plaintiffs lapsed) and thereafter on the indemnity basis; or (c) on the standard basis. [75] The basis for the defendant’s primary and alternative positions are that: (a) the defendant had already clearly and unambiguously made its statement on the first plaintiff’s lack of involvement with the final list in its affidavit material, Original Outline of Argument (filed 20 January 2025), and its defence; (b) the plaintiffs commenced or continued the proceedings for some ulterior motive; (c) the defendant admitted the statement in its defence; (d) the plaintiffs refused two offers to compromise, which was imprudent in the circumstances; and (e) the plaintiffs effectively surrendered to the defendant by abandoning their proceeding on the second day of the hearing. [76] The defendant relies on the fact that the plaintiff’s originating application did not seek any declaration or other relief to the effect that the first plaintiff did not create nor edit the final list. [77] At the oral hearing on 6 June, counsel for the defendant put it this way: -- 13 of 25 -- 14 “MR BRENNAN: … your Honour will have the leisure of considering it, but it was never pleaded in the statement of claim that the expulsion was based upon the student being responsible for the rape list. It’s not pleaded anywhere. The word “responsible” doesn’t appear anywhere in the statement of claim … Your Honour, if we’re trying to identify the real issues in dispute in a proceeding that has pleadings, one looks to the pleadings, and if … the plaintiffs wish to vindicate the student’s right to allege that there was some sort of denial of procedural fairness in a contractual context, they had the right to proceed to judgment.” [78] The defendant, in their written submissions, contextualises the significance of their statement in court in this way: “Prior to 20 May 2025, the parties to the dispute (or, at least their legal representatives) were in furious agreement that, at all times, the College accepted that the first plaintiff did not create nor edit the final list. That is the gravamen of the Concession. So, for example: (a) the correspondence prior the proceeding did not suggest that the Student’s expulsion was based upon his creating or editing the Final List. (b) the Concession was not the subject of any request by the Plaintiffs’ solicitor prior to the commencement of the proceeding. (c) the Plaintiffs did not seek any interim or final relief in the Originating Application (filed on 23 December 2024) in terms of the Concession. (d) the College admitted the Concession in the Principal’s affidavit on the first return date (on 20 January 2025). (e) the College admitted the Concession by the College’s counsel in his Outline of Argument on the first return date. (f) nothing even remotely resembling the Concession was sought in any relief pleaded in Plaintiffs’ Statement of Claim (filed on 29 January 2025). (g) as noted above, the Concession was expressly pleaded as an admission in the College’s defence (filed on 26 February 2025). (h) the Plaintiffs relied upon the Concession as an express admission in the Plaintiffs’ Reply (filed 17 March 2025). (i) the Plaintiffs expressly relied upon the Concession in their Counsels’ first Outline of Argument resisting the College’s confidentiality orders (sent to the Court on 5 May 2025). (j) the Plaintiffs relied upon the Concession again in their Counsels’ second Outline of Argument resisting the -- 14 of 25 -- 15 College’s confidentiality orders (sent to the Court on 9 May 2025). (k) the Plaintiffs expressly relied upon the Concession a third time in their Opening Written Submissions (sent to the Court on 16 May 2025). (l) the College made the Concession (again) in its Opening Written Submissions (sent to the Court on 16 May 2025)”. [79] The defendant states that the plaintiffs, at no time prior to, or during, the proceeding sought the statement made by the defendant in court. Rather, the defendant’s statement was made on the second day of the trial in response to a question from me. [80] The defendant relies on its admissions in paragraph 31(a) and 32(b) of its defence (extracted at [25] of these reasons) that a “Student from [another school] created the [rape list]” and that the first plaintiff “did not create nor edit the [rape list]”. [81] The defendant submits these admissions are more expansive than the allegations made at [22] of the plaintiffs’ statement of claim. [82] The defendant submits that, in its defence, it could not plead to the first plaintiff’s knowledge. [83] The defendant submits that their defence was reasonable and that, had the plaintiffs sought the defendant to make the statement in open court on the first return date, it would have been given. [84] Further, the defendant states that their position has been consistent throughout the proceedings: (a) on 10 January 2025, an affidavit from the College Principal was filed which states, “I was also informed that there was insufficient evidence to conclude [the first plaintiff] had any part in the creation or contribution to other lists”; (b) on 20 January 2025, the defendant filed submissions which state that “…other students changed the Updated Original List into further ‘lists’ including a list which ultimately became known as the rape list”; and (c) on 7 May 2025, the defendant filed their opening submissions for the trial which state that “[i]t is uncontroversial that the College did not allege that [the first plaintiff] was a participant in adding names or other details to the Rape List”. [85] The defendant states that their position has always been consistent with their statement made in court on 20 May 2025, which precipitated the plaintiffs’ discontinuance. [86] The Principal’s affidavit, the defence, the original outline, and the written opening were all filed and read in open court. The defendant considers the plaintiffs were at liberty to provide these documents to any media outlet, or those in the community, who had mistakenly assumed that the first plaintiff had created or had anything to do with the final list. -- 15 of 25 -- 16 [87] Specifically with reference to the media’s erroneous reporting that the first plaintiff compiled the final list, the defendant states that this was squarely an issue with the media outlet (not the defendant) and was separate to the issue of the first plaintiff’s enrolment contract being terminated. The defendant states that it did not convey anything to the media outlet which contributed to its inaccurate reporting, nor could they have taken any steps to report the inaccuracy (otherwise they would have had to reveal the names of ex- students and the specific reason for their terminated enrolment). [88] The defendant submits that, given the plaintiffs did not seek declaratory relief about the first plaintiff’s involvement in the final list, the only appropriate conclusion is that the plaintiffs prosecuted the proceedings all the way to the second day of hearing for a collateral purpose. The defendant states that this purpose was wholly unconnected to the relief the plaintiffs sought in their originating application and in their statement of claim, and that it could not be said that the defendant reasonably could have known the plaintiffs sought relief by way of the statement. [89] The defendant submits that the terms of the defendant’s statement were “not put before” the plaintiffs because none of the terms the plaintiffs “put before” the defendant were relied upon as the “reason for discontinuance”.4 [90] As such, the defendant submits that it was unreasonable for the plaintiffs to commence the proceeding, not only for failing to seek a declaration in the form of the defendant’s statement but also because the plaintiffs abandoned most of the relief sought in the originating application. Further, the defendant submits that this can also be viewed in the context of the defendant admitting, and then positively pleading, that the first plaintiff did not create nor edit the final list. [91] After the plaintiffs rejected two offers from the defendant, the defendant states that it was put to the expense of: (a) serving third party notices (relevant to the plaintiffs’ claim for damages); (b) seeking confidential disclosure orders which the plaintiffs defended, and which required two court appearances; and (c) preparing for trial including drawing written opening outlines, conferring with witnesses, and counsel’s preparation for the hearing. [92] The defendant submits that its correspondence to the plaintiffs on 16 April 2025 was not improper.5 Rather, for the reasons they set out, it was a reasonable approach to litigation and not an act of misconduct. [93] In summary, the defendant submits that the plaintiffs: (a) commenced proceedings for relief they were not serious in pursuing; (b) subsequently filed a statement of claim, which sought relief based upon a breach of contract, including damages, which was not pursued; (c) aggressively resisted the defendant’s application for confidentiality orders, which only sought to protect the interests of third parties, many of whom were minors; 4 See Fairfield Services Pty Ltd (in liq) v Leggett (2020) 5 QR 50, 60 at [22](c). 5 Detailed at [72] of these reasons. -- 16 of 25 -- 17 (d) compelled the defendant to defend proceedings seeking relief which sought to impugn the defendant’s decision-making process and the defendant’s internal investigation of the conduct of minors when, in the result, all the plaintiffs were seeking was the statement by the defendant; (e) refused to accept that the decision to expel the first plaintiff was a reasonable consequence of the first plaintiff’s admitted conduct; and (f) conceded on the second day of the trial that, in fact, they were not seeking relief from the Court but a declaration to the wider public. [94] 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 [95] 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.” [96] 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. [97] The question of costs in this case is more complex due to the mid-hearing discontinuance. [98] Rule 685 of the UCPR states: “685 Costs if further proceedings become unnecessary -- 17 of 25 -- 18 (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.” [99] 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.” [100] 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.” [101] A higher bar was posited by McHugh J6 in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lae Qin (1997) 186 CLR 622, where his Honour stated:7 “In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the 6 His Honour was considering the general discretion as to costs, rather than the discretion under r 685 UCPR. 7 At 624-625. -- 18 of 25 -- 19 costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the Defendant has acted unreasonably in exercising or refusing to exercise a power and that the Plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the Respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the Respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the Respondent to pay 80 per cent of the Applicant’s taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.” [102] In Chapman v Luminis Pty Ltd [2003] FCAFC 162, the Full Federal Court made the following observations: “[7] The authorities establish the following propositions in relation to the making of costs orders in circumstances such as the present: - where a proceeding terminates before there has been a hearing, the Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial. - this does not mean that a Court can never make an order for costs. Often it will be unable to do so, but in other cases an examination of the reasonableness of the conduct of the parties may provide the basis for an order, or a judge may be confident that one party was almost certain to have -- 19 of 25 -- 20 succeeded if a matter had been fully tried. - a distinction is to be drawn between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should be bear the costs.” [citations omitted] [103] As to the final point made in Chapman,8 an important distinction is made between two types of cases: (a) where discontinuance occurs when one party, after litigating for some time, effectively surrenders to the other; and (b) where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. [104] The surrender cases are often simpler as there will commonly be lacking any basis for an exercise of the Court’s discretion otherwise than by an award of costs to the successful party. [105] The supervening event cases can be more problematic as there can be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs. [106] In ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548, Justice Burchett considered that the decision of Lai Qin was an example of a supervening event: “[6] In Ex parte Lai Qin, McHugh J was careful to state (at 624) that the principles which he was concerned were those that “govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means”. As his Honour recounted the facts, the instant case was one where the applicant had challenged a decision of the Refugee Review Tribunal denying her status as a refugee but, during the pendency of her action in the High Court, the Minister had exercised his special discretion in her favour under s 8 At [7]. -- 20 of 25 -- 21 417 of the Migration Act 1958 (Cth). The question whether the Tribunal had or had not erred in law thus became moot”. [107] Bond J (as his Honour then was) in Fairfield Serices Pty Ltd (in liquidation) v Leggett (2020) 5 QR 50 set out six “considerations which … should influence the exercise of the discretion in a case where the plaintiff withdraws from the continued prosecution of a proceeding by discontinuing without any hearing on the merits”:9 “[19] First, costs discretions are truly discretionary and there are no absolute rules. In each case the discretion must be exercised judicially, so that the Court arrives at the order it thinks just in the particular circumstances of the case. [20] Second, under r 681, the general rule is that costs follow the event unless the Court orders otherwise. In Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [67]-[68], McHugh J explained the principle and policy underlying that general rule: “The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.” [21] Third, where the proceedings are discontinued prior to any hearing on the merits, the r 681 general rule cannot be applied in terms. As McHugh J observed in Lai Qin, a Court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. The Court cannot try a hypothetical action between the parties to determine the question of costs … At the time of discontinuance, usually it will be impracticable to assess the eventual prospects of success in the action … 9 Leggett (2020) 5 QR 50, 58 at [18]. -- 21 of 25 -- 22 [22] Fourth, it may nevertheless be appropriate to make an order that costs are borne by one side. Each case will depend on its own facts, but it may be relevant to consider the following: (a) (in a particular case) the conduct of the defendant prior to the commencement of the proceeding, where such conduct may have precipitated the litigation. (b) the whole of the proceeding, including whether the plaintiff has acted reasonably in commencing and continuing to prosecute the proceeding and whether the defendant has acted reasonably in defending it … but bearing in mind that the question of reasonableness may not be one capable of determination absent a full hearing on the merits … and (c) the reasons for discontinuance…, but bearing in mind that the subjective considerations of one party not put before the other party will generally be immaterial so that the discretion will be exercised on the basis of the objective circumstances established on the evidence. [23] Fifth, when evaluating the relevant considerations, there is an important distinction between: (1) cases in which one party, after litigating for some time, effectively surrenders to the other; and (2) cases where some supervening event, or settlement, so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs … As to this: (a) In the former type of case, the surrender or capitulation will usually provide a strong reason to award costs against the party who has surrendered or capitulated. It seems to me that this must be a partial reflection of the principles and policies which underlie the r 681 general rule, as identified by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72. A classic illustration of the type of case where one party has effectively surrendered to the other is a case where proceedings are dismissed or discontinued because the applicant chooses not to proceed with them. (b) In the latter type of case, there may be difficulty in discerning a clear reason why one party, rather than the other, should bear the costs, and that might provide good reason to decide that each party should bear its own costs. [Lai Qin] is one example of a case falling into this category, but other examples include Commonwealth Bank of Australia v Daleport Pty Ltd (in rec) (No 6) [2019] NSWSC 958, where the proceeding was assessed to have become futile in light of the fact that sequestration orders had been entered against the defendants, and True Conservation Association Inc v Minister Administering the Threatened Species -- 22 of 25 -- 23 Conservation Act 1995 [2008] NSWLEC 221, where the passage of legislation rendered the proceeding futile. [24] Sixth, the Queensland rules are silent as to onus. Care must be taken in the application of authorities from other jurisdictions where the rules are different. But as McMeekin J observed in Jones v Jones [2012] QSC 342, [45], “obviously r 307(1) does provide some guide”. The principle and policy underlying the r 681 general rule as explained by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 support the outcome dictated by r 307(1). It seems to me to follow that if the only information before the Court is that the proceeding was discontinued but at a date after the first defence had been filed, there would be no reason not to exercise the r 307(2) discretion in the same way as suggested by r 307(1). In such a case, it would be difficult to see why plaintiffs who discontinue before the first defence must pay their opponent’s costs, but plaintiffs who wait to discontinue for months or years after the first defence should not. Without more, those facts would normally be regarded as demonstrating a strong ground to award costs against the discontinuing plaintiffs … But there might well be some particular reason why the discontinuing plaintiffs should not pay an opponent’s costs, or indeed, why the opponent should pay the costs of the discontinuing plaintiffs. Ordinarily, the law expects that “he who asserts must prove” … At least on that basis, the party seeking a particular exercise of the costs discretion must demonstrate why it is appropriate.” [citations omitted]. [108] I have considered these six matters, as set out in Leggett, in light of the circumstances of this case. [109] When the trial commenced, the plaintiff sought: (a) a declaration that the enrolment contract was wrongfully terminated, and that the first plaintiff’s expulsion was invalid and of no effect; and (b) damages in the amount of $106,000.00 for boarding and tuition fees at Nudgee College. [110] These proceedings are about a contractual dispute. [111] Importantly, part of the factual contest between the parties was the first plaintiff’s involvement in the final list. The plaintiffs pleaded that the student did not participate in, or know about, the creation or publication of the final list before it was created, shared, and broadcast. [112] I note that the plaintiffs did not seek a declaration in these terms. However, I accept the plaintiffs’ submissions that it would not be orthodox, or appropriate, to seek minute declarations on factual matters on which the ultimate relief is sought. -- 23 of 25 -- 24 [113] It was clear from the defence filed that the defendant accepted that the student did not create, nor edit, the final list. This was uncontroversial between the parties. However, the defendant left open other inferences which could be drawn linking the first plaintiff to the final list. [114] I have considered the relevance of the defendant’s statement in court that precipitated the plaintiffs discontinuing the proceeding. [115] Subjectively for the plaintiffs, such was the power of this statement that it was enough to cease continuing the litigation. The plaintiffs state that they achieved the public and substantive vindication they sought in court before the media. [116] However, this was a contractual dispute between the parties and success cannot be measured by favourable media coverage or correcting matters incorrectly reported by the media. The plaintiffs’ subjective considerations are immaterial. As McHugh J stated in Oshlack v Richmond River Council (1998) 193 CLR 72, the plaintiff had a choice as to whether or not to be a party to this litigation; the defendant did not: “[90] The possibility of adverse costs orders may well inhibit some individuals and groups from bringing cases to court which involve challenges to aspects of public law. Express recognition of this fact does not, however, mean that the courts should remove this inhibition by adopting a practice of declining to follow the usual order as to costs in cases of “public interest litigation”. Whether or not one regards a particular applicant’s actions as well-intentioned and striving, albeit unsuccessfully, to serve some perceived public interest, the respondent still faces real costs from having to defend the proceedings successfully. The applicant had a choice as to whether or not to be a party to the relevant litigation. The respondent typically had no such choice. The legislature has chosen not to protect such applicants from the effects of adverse costs orders, whether by an express statutory exemption or the creation of some form of applicants’ costs fund (138). In such circumstances, one may well feel sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs”. [117] Whilst the plaintiffs may have felt vindicated, the defendant’s statement did not resolve the contractual dispute between the parties which could only be resolved by continuing with the trial. The ultimate dispute between the parties was still on foot, primed for resolution by the court. [118] The significance of the defendant’s statement is difficult to assess. The plaintiffs state that the defendant’s position as framed by the pleadings was that the first plaintiff remained responsible for the final list. Paragraph 32(d) of the defence stated: “(d) as an explanation for the denial in subparagraph (c), the College says: (i) if the [first plaintiff] did not create the Initial List; or (ii) if the [first plaintiff] did not publish the Initial List; or -- 24 of 25 -- 25 (iii) if the [first plaintiff] had told those to whom he published the Initial List that they were not to change the Initial List and were to immediately delete it upon receipt; then (iv) it is equally reasonable to infer those who participated in creating the Final List would never have done so.” [119] Effectively, the defendant pleaded that it may be inferred that, ‘but for’ the first plaintiff, the final list would not have been created. [120] The defendant’s statement that the plaintiff had “no investment” in the final list is a broad statement that could subsume any ‘but for’ scenario and, at first blush, appears to be inconsistent with the defendant’s pleading. The same could be said about the Principal’s affidavit where he stated that there was “insufficient evidence to conclude the first plaintiff had any part in the creation or contribution to other lists”. [121] It may come down to semantics with important consequences as to the meaning of “no investment”. [122] The defendant’s statement has to be considered in light of the pleadings, where the defendant pleaded its ‘but for’ position. However, in the circumstances of an evidential void and without the benefit of a full hearing, it is difficult to make any finding as to whether the defendant’s statement: (a) is inconsistent with the defendant’s previous position; (b) resolved a factual issue between the parties; and (c) would have impacted the ultimate result. [123] The trial was discontinued at a very early stage and without the benefit of hearing any evidence. Accordingly, I cannot come to any finding as to the conduct of the parties prior to, or during, this litigation nor as to the merits of the plaintiffs’ case and their prospects of success, nor whether they surrendered or capitulated in light of an overwhelming case against them. In the language of Bond J (as his Honour then was) in Leggett, it is impracticable to do so. [124] Considering all the matters that I must, it is difficult to discern a clear reason why one party, rather than the other, should bear their own costs. [125] Ultimately, this is a case where each party should bear their own costs. Conclusion [126] Accordingly, in my view, the most appropriate and just order is for each party to bear their own costs. -- 25 of 25 --