FEDERAL COURT OF AUSTRALIA
Edser v QSuper Board [2025] FCA 212
Appeal from: Edser v QSuper Board [2023] FCA 1120 File number(s): QUD 465 of 2023 Judgment of: COLLIER J Date of judgment: 18 March 2025 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for security for costs against appellant – no appearance by appellant – potential request for adjournment refused – ex parte hearing of application – principles for granting order for security for costs – where grounds of appeal identify no error in reasoning of primary Judge – where limited evidence of appellant’s financial position – where unclear whether security for costs order would stifle appeal – where costs assessment undertaken by experienced costs specialist – where costs assessment and costs sought by respondent reasonable in the circumstances – security for costs order made against appellant –Federal Court of Australia Act 1976 (Cth) s 56 and Federal Court Rules 2011 (Cth) r 36.09 Legislation: Federal Court of Australia Act 1976 (Cth) s 56
Federal Court Rules 2011 (Cth) r 36.09
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Lehrmann v Network Ten Pty Limited [2024] FCA 1226
Edser v QSuper Board [2023] FCA 1120
Godla v Commissioner of Police, New South Wales Police Force [2021] FCA 1545
Nyoni v Pharmacy Board of Australia [2018] FCA 1313
Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224
Renshaw v Queensland Mining Corporation Ltd [2016] FCA 994
Nyoni v Shire of Kellerberrin (No. 9) [2016] FCA 472
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 32 Date of hearing: 11 March 2025 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr K F Holyoak Solicitor for the First Respondent: Mills Oakley ORDERS
QUD 465 of 2023 BETWEEN: SHANON EDSER
Appellant
AND: QSUPER BOARD
First Respondent
THE AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY LIMITED
Second Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
18 MARCH 2025
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…
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- AGLC
- Edser v QSuper Board [2025] FCA 212
- Case
- [2025] FCA 212
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether to grant an order for security for costs against Mr Edser. The court had to consider various factors, including the prospects of success of the appeal, the risk that a costs order would not be satisfied, whether an order for security would stifle a reasonably arguable claim, whether Mr Edser's impecuniosity arose from conduct that was the subject of the complaint, and any other discretionary matters pertinent to the case. Given that Mr Edser had already been ordered to pay costs at the first instance and had limited evidence of his financial position, the court found that an order for security for costs should be made. The court was satisfied that the costs assessment undertaken by an experienced costs specialist was appropriate, and the amount sought by QSuper Board was reasonable. Consequently, the court decided to stay the proceedings pending the provision of security in a satisfactory form, giving Mr Edser 28 days to comply.
In reaching its decision, the court referenced several principles and precedents, including those from Kiefel v Victoria, Lehrmann v Network Ten Pty Limited, Nyoni v Shire of Kellerberrin (No. 9), and Renshaw v Queensland Mining Corporation Ltd. It was noted that while there was no presumption in favour of ordering security for costs in appeals, the exceptions and considerations outlined in the cited cases and statutes guided the court's decision. The court also considered the arguments presented by QSuper Board, which included the lack of evidence that an order for security would stifle the appeal and the absence of any public interest issues. Ultimately, the court found that the circumstances warranted an order for security for costs, with specific terms regarding the amount and form of security to be provided by Mr Edser.
The final orders of the court mandated that Mr Edser provide $73,990.00 as security for QSuper Board's costs, to be deposited into Court or provided in the form of a bank guarantee or other satisfactory security by 4.00pm (AEST) on 15 April 2025. The appeal was to be stayed until the security was provided or until further order. If Mr Edser failed to provide the required security within the stipulated timeframe, the appeal would be dismissed with costs. Additionally, Mr Edser was ordered to pay QSuper Board's costs of the interlocutory application, subject to taxation if not agreed upon otherwise.
Orders
Orders of the court
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 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. 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. The following issues are relevant. 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.48More 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 …49Otherwise, 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.