Edser v QSuper Board

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.

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.