• [35] The Applicant referred to the matter of Baker v Salva Resources Pty Ltd,[6] which summarises the relevant principles regarding the Act s.611(2)(b) as it relates to a matter having no prospects of success. Irrespective of the finding in Baker, the Applicant submitted it is open to the Commission to consider all relevant matters in determining whether a cost order ought to be granted in respect of the Act, s.611(2)(b). Baker states:

The concepts within s.611(2)(b) 'should have been reasonably apparent' and 'had no reasonable prospect of success' have been well traversed:

• 'should have been reasonably apparent' must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• a conclusion that an application 'had no reasonable prospect of success' should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable."

• [36] Regarding the above, the Applicant submitted that the objective test obliges the Commission to consider the Respondents' knowledge, intellect, and ability in determining whether it was 'reasonably apparent' the objection had no prospects of success.

• [37] The Applicant said the above is relevant in that first, the grounds relied upon in seeking to uphold the objection could never satisfy the Commission an extension was not appropriate given the well traversed ground of practitioner error. Second, the Respondent is a sophisticated employer, maintaining an in-house legal department and third, consideration of the asserted reason for the delay ought to have waylaid the Respondents thoughts of pressing an objection.

• [38] For the above reasons, the Applicant considered an award of costs on an indemnity basis to be appropriate. The Applicant said it should not be the case the Applicant is required to defend meritless objections purely because the Respondent is unaware of the law.

• [39] The Applicant concluded that while it is appreciated the Respondents are entitled to a 'fair go', this does not correlate to an ability to impermissibly press a jurisdictional objection in circumstances where, on plain reading of the Form F8, there are no reasonable grounds which could be asserted to permit the objection be upheld or which could be asserted to overcome practitioner error.

• [40] The Respondent submitted the Applicant's submissions misconstrue the nature and operation of s.366 of the Act.

• [41] It said the submission is framed on the basis that obtaining an extension of time from the Commission was an impost forced by the Respondents, and that there was an automatic right as a matter of law upon the assertion of representative error. This is incorrect. Assessment of whether or not exceptional circumstances exist, and the discretion should be exercised, is a question of fact to be assessed according to law. There is no automatic right. While it is correct that the Respondents' objection made that extension of time a contest, the Applicant was required by s.366(2) of the Act to demonstrate exceptional circumstances to the satisfaction Commission and satisfy the Commission to exercise its discretion. The application was defeasible until such time as the Commission allowed "a further period" under s.366(2).

• [42] As the Commission is a no costs jurisdiction, the bar to meet to be awarded costs is high. In this matter, I am inclined to agree with the Respondent, that there was no unreasonable or vexatious conduct, act or omission, nor was there no reasonable cause to make submissions on a jurisdictional objection that the application was out of time.

• [43] It was clear from the information in the Form F8 submitted by the Applicant that the application was out of time, and this was acknowledged by the Applicant. I agree with the Respondent that the Applicant purported there was well established authority supporting an extension in circumstances of representative error, but that no actual authorities were cited in the Form F8 in support of this.

• [44] I also note that representative error is, as the Respondent correctly asserts, not a certainty for the granting of an extension of time to file an application. In fact, there must be consideration of whether there was any conduct, act or omission by the Applicant which contributed to the delay in any way.[7] This is not always disclosed in the initial application form and may only become apparent through further submissions, witness evidence or cross examination.

• [45] I do not accept the Applicant's submission that the Respondent should not have raised the objection that the application was out of time, or should have withdrawn it at first blush when more information became available. As the Respondent correctly outlined, s.366 of the Act required the consideration of the extension of time to be made with or without the Respondent making the objection, so there was no additional delay.

• [46] Therefore, even if the Respondent had withdrawn their opposition to the application for an extension of time, costs would still have been incurred by the Applicant as the party which bears the main onus of proving why the application should be granted the extension. As a matter of course, submissions are almost always sought from parties to support their position. The substance of the submissions made by the Applicant may have changed had the Respondent withdrawn the opposition, but submissions would need to have been filed nonetheless.
• [47] Therefore, I do not consider that the tests in ss.375B(1)(b) and 611(2)(a) or (b) have been satisfied.

• [48] The application for costs is dismissed.

[1] [2025] FWC 2946.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] McConnell v A&PM Fornataro [2011] FWAFB 466; (2011) 202 IR 59, 35.

[4] [2025] FWC 1402, [19].

[5] (1992) 43 IR 257, [264] - [265], per Wilcox J.

[6] [2011] FWAFB 4014, [10].

[7] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in David_son v Aboriginal & Islander Child Care Agency_ (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service [2011] FWAFB 466; (2011) 202 IR 59 [35].

Printed by authority of the Commonwealth Government Printer