Federal Court of Australia

Edser v QSuper Board [2025] FCA 212

ORDERS

THE COURT ORDERS THAT:

1.    The appellant provide $73,990.00 as security for the first respondent’s costs of, and up to and including, the hearing of the appeal (security for costs).

2.    Security for costs must be provided by one of the following options by 4.00pm (AEST) on 15 April 2025:

(a)    Payment of the amount of $73,990.00 into Court by way of cash deposit; or

(b)    The provision of a bank guarantee with an Australian bank in a form acceptable to a Registrar of the Court; or

(c)    Otherwise providing security in a form satisfactory to the first respondent and acceptable to a Registrar of the Court.

3.    Subject to the succeeding orders of this Order, the appeal be stayed until the appellant complies with Orders 1 and 2 of these Orders, or until further order.

4.    Liberty to apply is granted in relation to the form and content of Orders 2(b) and 2(c) of these Orders.

5.    In the event that security for costs is provided by the appellant in accordance with Orders 1 and 2 of these Orders, the first respondent is to notify the Associate of Justice Collier within 5 business days of the date of the provision of security for costs by the appellant.

6.    In the event that the appellant fails to comply with Orders 1 and 2 of these Orders, the appeal be dismissed with costs without further order of the Court.

7.    In the event that Orders 1 and 2 of these Orders are complied with, the first respondent has liberty to apply for additional security.

8.    The appellant pay the first respondent’s costs of and incidental to the interlocutory application filed on 28 August 2024, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an interlocutory application filed by the first respondent, QSuper Board, on 28 August 2024 (interlocutory application), which seeks the following orders:

1.     Pursuant to rule 36.09 of the Federal Court Rules 2011 (Cth) or section 56 of the Federal Court of Australia Act 1976 (Cth) the appellant provide security for the first respondent’s costs of the appeal in the amount of $73,990 in such form as is satisfactory to the Court within 14 days of this Order.

2.     Subject to paragraph 3 of this order, the appeal be stayed until the appellant provides such security.

3.     The parties have liberty to apply for further orders including dismissal of the appeal on no less than 5 business days’ notice by one party to the others.

4.     The appellant pay the costs of and incidental to this application.

2    At the hearing of the interlocutory application on 11 March 2025, Counsel for QSuper Board, Mr Holyoak, sought variation of the orders sought in that application to include an order that, in default of payment of the security for costs, the entire proceedings be dismissed without further order of the Court.

3    Before turning to relevant issues before me in relation to granting an order for security for costs, it is helpful to summarise the background to the interlocutory application.

BACKGROUND

4    The substantive application is an appeal to the Full Court of the Federal Court filed by Mr Edser on 18 October 2023 from the decision at first instance in Edser v QSuper Board [2023] FCA 1120. The primary Judge at first instance dismissed a statutory appeal from a determination of the second respondent, the Australian Financial Complaints Authority (AFCA), where AFCA had affirmed a decision of QSuper Board not to pay a Total and Permanent Disablement (TPD) benefit to the appellant. The application before the primary Judge raised six questions of law, although the primary Judge found that it ultimately turned on four matters, namely:

(1)     Whether the Authority failed to consider a mandatory relevant consideration;

(2)     The definition of “pre-existing medical condition”;

(3)     The proper construction of the words “not related to” in cl 6.2(b) of the Insurance Terms; and

(4)     The application of the Insurance Contracts Act 1984 (Cth).

5    As I noted earlier, a notice of appeal from the primary Judge’s decision was filed by Mr Edser on 18 October 2023.

6    The matter was allocated to me as case management Judge in respect of the appeal on 29 July 2024. Prior to that date the Court had been in receipt of correspondence from Mr Edser to the effect that he resisted any Full Court listing, asking instead for the appeal to be “held in abeyance indefinitely and until such time as my psychiatrist deems that I am well enough to proceed” noting that he did “not want to be pushed back toward suicidality again”.

7    Notwithstanding Mr Edser’s correspondence, I listed the matter for a case management hearing to be held on 7 August 2024, whereupon Mr Edser on 30 July 2024 emailed the Court and the respondents in the following terms:

Dear Parties,

Please be advised that as I have previously stated,

I am currently unrepresented and I am too unwell to represent myself.

If a letter from my treating psychiatrist is required outlining the above then he has agreed to provide it.

I request of the court that my matter be held in abeyance indefinitely given the circumstances.

This case has already severely compounded the already severe psychological injury which I am left suffering from as a result of the subject injury of my TPD claim.

I have previously requested that the court appoint a lawyer for me but heard nothing by way of reply to this request.

Regards,

Shanon Edser

Ph: [redacted]

8    When the matter came before the Court on 7 August 2024 Mr Edser was unrepresented, but nonetheless appeared (by Microsoft Teams) at the hearing of the interlocutory application. During the hearing, the first respondent raised the prospect of filing and serving an application for security for costs of the appeal. I made the following case management orders:

1.    The Respondent file and serve any application for security for costs of the appeal (the Application) pursuant to section 56 of the Federal Court of Australia Act 1976 (Cth) and rule 36.09 of the Federal Court Rules 2011 (Cth) by 4.00pm on 28 August 2024.

2.     The Appellant notify the Registry whether he is legally represented by 4.00pm on 28 August 2024.

3.     The Respondent file and serve an outline of argument in respect of the Application by 4.00pm on 18 October 2024.

4.     The Appellant file and serve an outline of argument in respect of the Application by 4.00pm on 31 October 2024.

5.     The Respondent file and serve an outline of argument in Reply by 4.00pm on 15 November 2024.

6.     The Application be listed for hearing at 10.15am on 19 November 2024 (AEST), subject to finalisation of the Full Court calendar.

7.     In the event that the Respondent does not file the Application in accordance with these orders, paragraphs 3, 4, 5 and 6 be vacated and the matter return for case management at 9.30am on 29 August 2024.

9    On 11 November 2024, Mr Edser informed the Court and the other parties about the death of his father, and Mr Edser’s distressed state. Following the receipt of further correspondence, I vacated the hearing of the security for costs application listed for 19 November 2024, and relisted it for 10.15am on 11 March 2025.

10    By email to the Court dated 27 February 2025, Mr Edser informed the Court that he had made a Public Interest Disclosure to the Crime and Corruption Commission Queensland regarding matters he claimed relevant to the present proceedings, in particular, the alleged corruption of a psychiatrist, the lawyer for the QSuper Board, and the QSuper Board itself.

11    As at 11 March 2025, Mr Edser had not filed and served an outline of argument in respect of the interlocutory application as required by Order 4 of my Orders of 7 August 2024.

12    Mr Edser did however email the Court in the following terms on 10 March 2025:

I strongly object to any application to place my home as a bond based on the following reasons:

I did my job at the Princess Alexandra Hospital by alerting the authorities to patient abuse via my PID statement.

I was merely adhering to my moral and legal obligations in reporting the criminal behaviour which I witnessed towards vulnerable hospital patients by my security department colleagues in particular “Team Smash’em” as they were known.

I could not continue in my job as I had been asked to be moved but this request had been refused after being made aware I that threats had been made against my personal safety.

The AHRC found Qld Health liable for workplace bullying and harassment.

Apparently “everyone knew” about the patient abuse and those involved were all subsequently sacked.

I became quite unwell because I had suffered a massive amount of stress in addition to having to live with the fear of retribution.

I applied for a TPD insurance payout as a result of my injury. To this day I have sought a copy of the contract but which still has not been provided to me. I didn’t know I had one until I suffered the injury. It was taken out by Qld Health on my behalf and signed by someone whose name I still don’t know. The payments were duly deducted from my superannuation account.

When my claim was rejected I made application to AFCA which was successful by way of a ‘Recommendation’ in my favour.

Q Super did not accept that decision which caused the decision to go to the next step which was a ‘Determination’ which did not go in my favor, I then appealed that decision to the Federal Court. Justice Perram also found in my favor. He ordered the matter be sent back to AFCA with very explicit instructions which I do not believe AFCA followed.

AFCA gave directions to Professor Alexander MacFarlane who had been recommended by Q Super as the expert witness. AFCA refused to share those instructions with my lawyers Harmers Workplace Lawyers.

Professor Alexander MacFarlane wrote a report about me without ever examining me or speaking to me. I believe that this was an egregious breach of my human rights and the court has erred by allowing this report to be used in this process.

Professor McFarlane was the only expert witness.

I appealed the decision to the Federal Court again and Justice Meagher found in favor of AFCA/Q Super.

I appealed that decision. It is my contention that I have not received Natural Justice as the Rules of Administrative Law were not abided by nor the rules pertaining to an Expert Witness and that my Human Rights have been trampled on in the process.

I am a part time student of engineering I don’t have a law degree I am simply aware that I have done everything right and was caused an injury in the process.

I have become aware of nefarious practices used in the superannuation industry to deny claims which the lawyers all seem to know about and which people are used for which reasons on a regular basis.

None of the many lawyers I’ve spoken to are at all surprised by the behaviour of Psychiatrist Dr Bradley Ng and his nefarious relationship with Q Super.

I will now have to seek the help of law professors from around the country to opine on my case as I am unrepresented in an effort to defend myself in the best way I can think of.

If the Rules of Natural Justice had been adhered to I would not find myself in this position today.

I consider the behavior of Q Super and some expert witnesses such as Psychiatrist Dr Bradley Ng and Psychiatrist Professor Alexander McFarlane who have been used over and over again by Q Super to be so serious that I will be seeking to start a class action for those similarly affected to myself to bring a claim for damages and compensation. It’s the only way the public will be made aware of the nefarious practices used to deny their legitimate claims.

I also believe that there needs to be an investigation/enquiry conducted into the behaviour of lawyer David Slatyer and his firm Mills Oakley Lawyers as to what they knew about these to expert witnesses previously and to what extent they and

Q Super have misled the court in this case and many other cases previously.

Sincerely,

Shanon Edser

P.S. Any lawyers or law professors who wish to assist me in my case in any capacity who read this correspondence are most welcome to contact me via my email address: [redacted]

13    At the hearing on 11 March 2025, there was no appearance by Mr Edser. The Court received correspondence from Mr Edser on 10 March 2025 at 9:08pm stating:

Dear Justice Collier,

I am writing to notify the court that I am simply too unwell to attend tomorrow’s hearing.

My letter to the court today serves as my response.

Sincerely,

Shanon Edser.

14    At the hearing on 11 March 2025, I noted that this email from Mr Edser could have been intended by Mr Edser as meaning either:

(1)    He was providing his response to the interlocutory application on the basis that the hearing would proceed in his absence; or

(2)    He was seeking an adjournment of the hearing of the interlocutory application. Any such adjournment was opposed by QSuper Board.

15    In the absence of Mr Edser, and after hearing from Counsel for QSuper Board, I considered both possibilities, and ruled as follows:

    If Mr Edser did not object to the hearing of the interlocutory application proceeding in his absence – the hearing would proceed, albeit I would have regard to his letter of 10 March 2025.

    If Mr Edser was seeking an adjournment of the hearing of the interlocutory application:

•    A decision to adjourn a hearing is made in the exercise of the Court’s discretion.

•    The discretion to order or refuse an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case.

•    Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted.

•    Plainly, the interests of case management are to be taken into consideration, and the decision whether or not to adjourn must be made against the background of the procedural history of the proceedings: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

•    Mr Edser had not complied with Order 4 of the Orders of 7 August 2024 (as extended to 20 December 2024) to file and serve an outline of argument in respect of the interlocutory application. He had provided no explanation for that non-compliance. To the extent that his letter dated 10 March 2025 purported to be an outline of argument, the letter was significantly out of time.

•    The hearing of the interlocutory application had already been adjourned once before, as it was originally listed for 24 November 2024.

•    In an endeavour to assist Mr Edser, the Court had issued a certificate on 30 August 2024 to refer his case to pro bono lawyers. To that extent, the Court has endeavoured to promote the interests of justice in respect of Mr Edser’s case.

•    Despite Mr Edser’s email stating that he was unwell and unable to attend Court, no medical evidence in support of that claim was provided. The most recent medical evidence on the Court file was a letter which appeared to be from Mr Edser’s psychiatrist, stating that, as at 1 August 2024, Mr Edser was too unwell to represent himself in court. However, I note that Mr Edser appeared by Microsoft Teams at a case management hearing on 7 August 2024.

•    The interests of justice to the respondents favoured the hearing of the security for costs application proceeding.

•    In these circumstances, I was not prepared to grant an adjournment of the security for costs application.

Submissions of QSuper Board IN RESPECT OF THE INTERLOCUTORY APPLICATION

16    In summary QSuper Board submitted as follows:

    QSuper Board relied on the affidavit of its lawyer Mr David Leslie Slatyer sworn 28 August 2024.

    The principles discussed in Kiefel v Victoria [2014] FCA 604 at [27]-[46], Lehrmann v Network Ten Pty Limited [2024] FCA 1226 at [16]-[26], Nyoni v Shire of Kellerberrin (No. 9) [2016] FCA 472 at [6]-[8], Renshaw v Queensland Mining Corporation Ltd [2016] FCA 994 were particularly relevant.

    In relation to the grounds of appeal before the Full Court, Mr Edser simply sought to reagitate the grounds before the primary Judge without indicating how the primary Judge had erred.

    As Mr Slatyer deposed in his affidavit at [18]-[20], the primary Judge had ordered costs against Mr Edser at first instance in favour of QSuper Board. That costs order remained unpaid.

    The only known income of Mr Edser was Centrelink benefits.

    The only known asset of Mr Edser was real property with an unimproved value of $500,000.00. Mr Edser’s equity in that property was unknown.

    Mr Edser had not advanced any evidence as to his ability to meet a costs order in the appeal, in addition to the costs order made against him at first instance.

    Mr Edser had already had multiple occasions to have access to justice according to law in this matter.

    There was no evidence before the Court that an order for security for costs would stifle the appeal.

    There was no evidence to suggest that Mr Edser was impecunious and could not raise security for costs, nor that any alleged impecuniosity arose out of conduct which was the subject of the complaint in the proceedings.

    There was no issue of public interest.

CONSIDERATION

17    Section 56 of the Federal Court of Australia Act 1976 (Cth) confers power on the Court to make orders for security for costs as follows:

(1)    The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

(2)    The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

18    Further, r 36.09 of the Federal Court Rules 2011 (Cth) provides:

(1)    A party may apply to the Court for an order that:

(a)    the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and

(b)    the appeal be stayed until security is given; and

(c)    if the appellant fails to comply with the order to provide security within the time specified in the order--the appeal be stayed or dismissed.

An application under subrule (1) must be accompanied by an affidavit stating the facts in support of the application.

19    The following issues are relevant.

20    First, as QSuper Board correctly submitted, security for costs was being sought against Mr Edser in respect of his present appeal to the Full Court. There is no presumption that security for costs will be ordered against an appellant in the case of appeals: Nyoni v Pharmacy Board of Australia [2018] FCA 1313 at [25]. However, as I explained in Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224:

47     … [T]he position in respect of security for costs orders on appeals differ from proceedings at first instance. The position in appeals was articulated in Cowell v Taylor [1885] 31 ChD 34 at 38 in the following terms:

The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law … There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty’s Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another.

48    More recently Spender J in Tait v Bindal People [2002] FCA 322 at [4] observed:

In a sense, it would be giving to a person who has been on the receiving end so to speak of a determination by the courts a free hit at great cost to the other party in the appeal proceedings …

49    Otherwise, relevant factors for consideration in applications for security for costs include the prospects of success, the risk that a costs order would not be satisfied, whether the order would stifle a reasonably arguable claim, whether any impecuniosity of the appellant arises out of conduct that is the subject of the complaint, and whether there are particular discretionary matters peculiar to the circumstances of the case: Dubow v Official Receiver (NSW) [2013] FCA 709.

21    (see also Ritson v Australian Building and Construction Commissioner [2017] FCA 888 at [27])

22    Mr Edser has already had the benefit of consideration of his claims by the Federal Court at first instance. He is entitled to appeal the decision at first instance, however in the language of the Court in Cowell v Taylor [1885] 31 ChD 34, he is not necessarily entitled to “[drag] his opponent from one Court to another” without provision of security for costs.

23    Second, it is necessary in a notice of appeal to identify a potentially appellable error in the primary Judge’s decision: Godla v Commissioner of Police, New South Wales Police Force [2021] FCA 1545 at [24]. As Katzmann J explained in AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162:

24.    An appeal to this Court … is not a hearing de novo (or new hearing) in which the case agitated below can be run afresh with no regard to the original findings. It is an appeal by way of re-hearing and the task of a court in an appeal by way of re-hearing is the correction of error: Branir v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21]‑[22] (Allsop J, Drummond and Mansfield JJ agreeing); SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. It is therefore incumbent on an appellant to persuade the Court that the primary judge fell into appealable error. The lodgement of an appeal is not an opportunity for an appellant to have another shot at the decision under review.

24    I accept the submission of QSuper Board that, prima facie, the grounds of appeal on which Mr Edser seeks to rely simply reagitate the grounds which he unsuccessfully pursued before the primary Judge without identifying any error in the primary Judge’s reasoning. In particular:

    Ground of appeal 1 to the Full Court reagitates ground 3 before the primary Judge;

    Ground of appeal 2 to the Full Court reagitates ground 4 before the primary Judge;

    Ground of appeal 3 to the Full Court reagitates ground 5 before the primary Judge.

25    In the absence of particularisation, I consider that Mr Edser’s prospects of success in respect of his present grounds of appeal are poor, which is a factor supporting the making of a security for costs order against him. Further, I note that Mr Edser remains unrepresented. In the circumstances, I am unable to be satisfied that Mr Edser’s present grounds of appeal will be amended to improve his prospects of success.

26    Third, there is limited evidence before the Court as to Mr Edser’s financial position, other than that he is in receipt of Centrelink benefits and that he appears to have an interest in a real property worth approximately $500,000.00. From his correspondence before the Court Mr Edser has indicated strong opposition to offering his real property as security for any costs order QSuper Board might seek. In the circumstances, it is unclear whether Mr Edser is able to meet any costs order in the appeal, in addition to the costs order against him at first instance. Further, it is unclear whether an order for security for costs would stifle Mr Edser’s appeal to the Full Court.

27    Fourth, it does not appear to be in dispute that Mr Edser has failed to satisfy the costs order made against him in the proceedings at first instance. No explanation has been given by Mr Edser for such failure, however, that this is the case suggests that Mr Edser may also fail to satisfy any costs order which might be made against him in this appeal. In my view, this is a reason for requiring Mr Edser to provide security for the costs of the first respondent in the present appeal.

28    Fifth, the amount of costs sought by QSuper Board is significant, being in the amount of $73,990.00. However, at the hearing of the interlocutory application, Counsel for QSuper Board submitted that this sum represented 70% of the costs assessment undertaken by Mr Adam Bloom, a specialist cost consultant of 24 years’ experience retained by QSuper Board. The cost assessment undertaken by Mr Bloom, as exhibited to the affidavit of Mr David Leslie Slatyer dated 28 August 2025 marked “DLS-4”, was prepared with reference to previous and future professional costs and disbursements incurred (and anticipated to be incurred) by QSuper Board in the course of the present appeal. In particular, I note the following methodology adopted by Mr Bloom in his report:

METHODOLOGY

10.    I set out below a table of different categories of costs likely to be incurred by different legal fee-earners in the conduct of this appeal. My basic methodology has been to adopt the main categories of professional cost items provided for in Schedule 3 of the Federal Court Rules, and to quantify a likely and conservative number of items that will be required to be performed for each particular category of costs/step in the action.

11.    I have not exhaustively applied every scale item, but have instead limited those estimates to the common attendance; document preparation; reading; delegation; research; and copying tasks. I have also estimated the likely outlays to be incurred in each category of costs/steps in the action. In this matter I am informed that it will be mainly limited to the counsel's fees.

12.    I have allowed for more than one lawyer to be involved in preparing for the appeal and this reflects the scale allowance for the efficient delegation of some work. However, I have made what I consider are very modest allowances for the partner's involvement in the appeal given it will be primarily managed by the junior lawyer.

13.    I have also provided for a skill, care and responsibility allowance for the professional costs component provided for at Item 11 of Schedule 3. In my experience, a 10% uplift may be allowed by a taxing officer of this court as that would represent a reasonable uplift of the base professional costs in a matter of some factual and legal complexity in an appeal, particularly where the solicitors may do extra work to assist the single counsel, and it is within the range in the former court Guide to Discretionary Items. I accept that such percentage is at the higher end of the guide noted in GPN-Costs, however I consider it is appropriate given the above factors.

14.    I firstly make an assessment of the past costs and disbursements incurred in the matter to date, noting that there have been some steps undertaken. GST is not included on anticipated disbursements because the Respondent would be registered for GST and cannot claim it back in any bill of costs per GPN-Costs.

29    In relation to previous professional costs, I note QSuper Board instructed Mr Bloom that $15,7760.80 (excluding GST) had been incurred for professional costs at the date of the costs assessment. Mr Bloom assessed this sum to be more appropriately placed in the range of $6,000.00-$8,000.00 and noted the following:

16.    Absent the firm’s invoices, I estimate that approximately 25 hours of work have been performed in the matter prior to the work involving this appeal. Whilst that strikes me as a relatively high figure to have been incurred for the initial stages of an appeal, I have been further informed that work was largely undertaken by the junior lawyer and that it involved considering the Notice of Appeal and judgment and evidence in the court below; conferring with the client and counsel and considering strategy to oppose the appeal, and appear at a case management hearing.

17.    Further, because the Appellant is still self-represented, I am informed that he has communicated at length with the court registry regarding procedural matters, all of which has been copied to my instructing solicitors, and upon which they have required their client's instructions, thus increasing the level of attention required by them to an appeal in its early stage. I accept that would have increased the costs to this point by some degree.

30    Mr Bloom concluded:

Based on the above analysis and as evidenced in the above table, I summarise below the Respondents’ reasonable costs and disbursements in defending the application up to and including only the first day of trial:

Past costs (range) -    $6,000-$8,000

Professional Costs -    $36,900.00

Disbursements -    $60,820.00

Total (rounded) =    $103,700.00-105,700.00

31    I am satisfied that the costs assessment undertaken by Mr Bloom is appropriate. I am further satisfied that the amount sought by QSuper Board, being 70% of the height of the range of total costs estimated by Mr Bloom, is reasonable in the circumstances.

CONCLUSION

32    For these reasons I am satisfied that an order for security for costs should be made against Mr Edser. The proceedings should be stayed pending the provision of security in a satisfactory form. Mr Edser should be given 28 days to provide that security. However, in the event that Mr Edser does not provide security for costs in compliance with these Orders, his appeal should stand dismissed without further order of the Court.

Associate:

Dated:    18 March 2025