Edser v QSuper Board (Costs) [2022] FCA 233

Federal Court of Australia

File number:	NSD 400 of 2021

Judgment of:	PERRAM J

Date of judgment:	16 March 2022

Catchwords:	COSTS – where Applicant successful on only one ground – where First Respondent did not contribute to error found in trial – whether fractional approach is appropriate

Cases cited:	Edser v QSuper Board [2021] FCA 1437

Division:	General Division

Registry:	New South Wales

National Practice Area:	Administrative and Constitutional Law and Human Rights

Number of paragraphs:	4

Date of last submissions:	4 February 2022 (Applicant) 10 February 2022 (First Respondent) 4 February 2022 (Second Respondent)

Date of hearing:	Determined on the papers

Counsel for the Applicant:	Mr D Kelsey-Sugg

Solicitor for the Applicant:	Harmers Workplace Lawyers

Counsel for the First Respondent:	Mr K F Holyoak

Solicitor for the First Respondent:	Mills Oakley

Counsel for the Second Respondent:	Mr A R Di Stefano

Solicitor for the Second Respondent:	Becketts Lawyers

ORDERS

		NSD 400 of 2021

BETWEEN:	SHANON EDSER Applicant
AND:	QSUPER BOARD First Respondent AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY LIMITED Second Respondent

order made by:	PERRAM J
DATE OF ORDER:	16 March 2022

THE COURT ORDERS THAT:

1. The First Respondent pay the Applicant’s costs.

2. There be no order as to the Second Respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1 This matter was decided on 18 November 2021: Edser v QSuper Board [2021] FCA 1437 (‘Trial Reasons’). The Applicant, Mr Edser, appealed to this Court on six questions of law (of which only five were pressed) and was successful on only one ground. I reserved the question of costs but indicated that I thought it appropriate for the First Respondent, the QSuper Board (‘QSuper’), to bear Mr Edser’s costs of the appeal and that no order should be made in relation to the costs of the Second Respondent, the Australian Financial Complaints Authority (‘AFCA’).

2 The hearing took one day. It is irrelevant, contrary to QSuper’s submissions, that it did not contribute to the error which I found in the Trial Reasons. It nevertheless defended the decision and is not to be excused from the costs consequences of its forensic posture just because the initial error was not its own.

3 QSuper submitted that the Court should approach the question of costs on the basis that, whilst it had failed on one ground, it had succeeded on the other four grounds. Whilst this fractional approach to costs is available in an appropriate case, generally, such an approach should be avoided unless the case for it is clear. Taking a fractional approach requires the Court to pick over the corpse of the trial and this can often be time consuming. While there may be some cases where this approach is appropriate, a single day judicial review action such as the present matter is not one. The grounds on which Mr Edser failed did not extend the duration of the hearing and Mr Edser obtained his desired outcome.

4 It is therefore appropriate for QSuper to pay Mr Edser’s costs and I will make no order as to AFCA’s costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated: 16 March 2022

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