1 Fair Work Act 2009 s.611 - Costs Ruby Sumal v RACQ Operations Pty Ltd (C2025/8080) COMMISSIONER SIMPSON BRISBANE, 27 NOVEMBER 2025 Application for costs under ss.611 and 375B – s.365 application – no unreasonable conduct – costs not incurred unnecessarily - costs not ordered – application dismissed. [1] Ms Ruby Sumal (Ms Sumal / the Applicant) made an application to the Fair Work Commission (the Commission) seeking an order for costs against RACQ Operations Pty Ltd (the Respondent) pursuant to ss.375B and 611 of the Fair Work Act 2009 (Cth) (the Act). [2] The application is made in the context of an application to deal with contraventions involving dismissal made under s.365 of the Act by the Applicant on 14 August 2025 against RACQ Operations Pty Ltd, Ms Rebecca Stephens and Ms Connie Sheahan. [3] The Applicant was represented by Mr Cameron Niven of Tailored Legal in the substantive case, and in this costs matter. The Respondent was represented by internal legal counsel Ms Chenoa Ellison in the substantive matter and by Mr Matthew Payten, Group Company Secretary and General Counsel of the RACQ group in this costs matter. Procedural background between the parties [4] The Applicant’s s.365 application was filed on 14 August 2025. [5] The Applicant’s application was out of time by 1 day. On 2 October 2025, I determined to extend time in a decision made on the papers by consent of the parties.1 [6] On 14 October 2025, a conciliation conference was held which did not resolve the matter. A certificate under s.368 of the Act was issued on the same day. [7] On 15 October 2025, the Applicant filed the application for costs. Relevant Legislation [8] The Applicant’s application for costs against the Respondent relied in part on s.375B of the Act, which provides: [2025] FWC 3615 DECISION [2025] FWC 3615 2 “375B Costs orders against parties (1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if: (a) an application for the FWC to deal with the dispute has been made under section 365; and (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute. (2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377. (3) This section does not limit the FWC’s power to order costs under section 611.” [9] Section 375B was inserted into the Act by the Fair Work Amendment Act 2012. Relevantly, the Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) states as follows: “New section 375B allows the FWC to order costs against a party to a general protections dismissal dispute (the first party) if it is satisfied that the first party caused the other party to the dispute to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the dispute. New section 375B is similar to the costs orders that are available against parties in relation to unfair dismissal matters (see section 400A). 57. This power to award costs is in relation to the dispute before the FWC and does not include costs associated with a general protections court application. 58. The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party. 59. The FWC’s power to award costs under subsection 375B(1) is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. 60. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party. [2025] FWC 3615 3 61. New subsection 375B(2) provides that the power to award costs against one party in these circumstances is only exercisable if the other party to the dispute makes an application in accordance with section 377. New subsection 375B(3) makes it clear that the new power to award costs under subsection 375B(1) operates in addition to subsection 611(2), which enables the FWC to make costs orders against a person in certain circumstances, such as where an application is made vexatiously or without reasonable cause.” [10] Secondly, the application for costs against the Respondent was made pursuant to s.611 of the Act, which stipulates as follows: “611 Costs (1) A person must bear the person’s own costs in relation to a matter before the FWC. (2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if: (a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or (b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success. Note: The FWC can also order costs under sections s376, 400A, 401 and 780. (3) A person to whom an order for costs applies must not contravene a term of the order. Note: This subsection is a civil remedy provision (see Part 4-1).” [11] Section 611 was included in the initially passed version of the Fair Work Act 2009 (Cth). In 2012, it was amended to include s.400A in relation to the note for s.611(2). In relation to s. 611(2), the Explanatory Memorandum for the Fair Work Bill 2009 outlined the following: “2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA. “2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success. “2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters. [2025] FWC 3615 4 “2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.” Submissions [12] The Applicant submitted the error in causing delay was wholly accountably to the Applicant’s legal representative and the Applicant took diligent steps to enquire as to the status of the matter to confirm progression and lodgement. The Applicant’s legal representative was travelling for a period and could not attend to the Applicant’s emails in due course and had incorrectly noted the 21-day timeframe for lodgement. Through no fault of her own, the Applicant suffered a prejudice. It is further considered that, despite these factors, the Respondent was “maintaining the objection purely for the purpose of objecting” given the circumstances resulted in the Respondents’ objection having no prospects of success. Unreasonable conduct or omissions – s.375B(1)(b) [13] The Applicant submitted that the basis of the Respondents’ objecting to the application for an extension of time was that the Respondents submitted there was no such exceptional circumstances that arose, and no other explanation was provided, including what steps the Applicant took to appropriately pursue the matter throughout the statutory period for the filing of the application. [14] The Applicant submitted that the Respondent therefore acted unreasonably as: a) despite being on notice of the reason for delay in filing the Form F8, of which an ‘exceptional circumstance’ existed, the Respondents did unreasonably raise a jurisdictional objection which, consistent with the reading of the Form F8 had no prospects of success; b) despite being on notice that practitioner error was an ‘exceptional circumstance’ which permits an extension of time, did unreasonably argue no such exception existed, which was inconsistent with cogent jurisprudence; c) unreasonably failed to engage with the legal principles governing the Commission’s discretion in permitting an extension of time, of which, each of the above either caused the jurisdictional objection to continue, being unreasonable conduct, or continuation of conduct, concerning the proceeding. [15] In response, the Respondent noted that the original explanation in the Form F8 was limited and fell well short of an explanation sufficient to establish exceptional circumstances. Further, it submitted the original explanation was in generalised terms other than limited specifics, which simply referenced that the Applicant’s representative was travelling and had incorrectly listed the 21-day timeframe. No other explanation or detail was provided. No explanation was provided of what specific steps the Applicant took to appropriately pursue the matter throughout the statutory period for the filing of the application, and when such steps were taken. [2025] FWC 3615 5 [16] The Respondent quoted Stogiannidis, noting that the lack of explanation is a factor to be considered: “The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.”2 [17] The Respondent further noted it is well established that it is the actions of the Applicant that are critical, yet other than referenced emails which the representative didn’t get to on the final day for filing, there was no explanation provided of the Applicant’s actions: “The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application.”3 [18] The Applicant said it was appropriate to have regard to the applicable jurisprudence which speaks to practitioner error as a ground for an extension of time to file an application in the Commission’s jurisdiction. The Applicant contended the Respondent did not diligently engage with such matters, and instead, progressed an argument that was, on a plain reading, wrong at law. This is unreasonable and it is a matter where such a finding is appropriate. [19] The Applicant alleged that in the above circumstances, the Respondent has unreasonably: • raised the jurisdictional objection, despite matters within the Form F8 • failed to discontinue the jurisdictional objection despite being on notice of matters within the Form F8 • continued to pursue the jurisdictional objection despite matters raised within the Form F8 • argued incorrect law [20] The Applicant concluded that the admissions provided within the Form F8 result in any jurisdictional objection being hopeless and the Respondents failure to intellectually engage with the Form F8 warrants a finding the Respondent has engaged unreasonably in the conduct or continuation of the matter. [21] In reply, the Respondent referred to Deputy President Roberts’ determination in Torocsik v Ausflow Pty Ltd,4 where it was found the assertion of a jurisdictional objection (even where in that case there was then a failure to support the objection with any form of material) is likely not an unreasonable act to enliven the power to award costs: “Having advanced objections to the application it was to be expected that the Respondents would be asked to put on material and submissions in support of those objections. Their failure to do so meant that the Applicant presented unopposed evidence that allowed the Commission to determine that it had the jurisdiction to proceed. Whilst it would have been appropriate for the Respondents to confirm that they did not intend to file material in support of their objection and to engage with [2025] FWC 3615 6 Commission correspondence about the matter, their failure to do so after putting the matters in issue was not, in the present context, an unreasonable act or omission. I am therefore not satisfied that the power to award costs under s.375B is enlivened. I would add that even if I am wrong about that I do not regard this as a case where the discretion to exercise such a power should be exercised.” (Respondent emphasis added) [22] The Applicant said the present matter is distinguished from Ausflow in that the Respondent (in that matter) raised that while the omission was present, it was not unreasonable given their status as a small business which was uneducated. In contrast, the Applicant submitted in the present matter: [23] the Respondent was on notice of the basis which gave rise to the exceptional circumstance, and proceeded to raise a jurisdictional objection irrespective; a) the submission on jurisdictional objection was offensive to the law; b) the First Respondent is not a small business; c) the First Respondent maintains a dedicated In-House Counsel and Human Resources team; and d) despite the above, did not seek advice or representation concerning the jurisdictional objection despite requests for same, and otherwise took no action following the 1 September 2025 email. [24] The Applicant contended the factual background of Ausflow, particularly the Respondent’s knowledge of processes and level of education impact the reasonableness of the decision making – they were not sophisticated. The Applicant said in contrast, the Respondent in the present matter is quite sophisticated. [25] The Respondent continued that it cannot be said that the finding of exceptional circumstances and the exercise of a discretion by the Commission was by any means a fait accompli so as to make the raising of the objection unreasonable. To suggest that it was misconstrues both the nature of a statutory timeframe and the legislative purpose of the Commission under s.366 of the Act. [26] The Respondent submitted it was entitled to test the limited explanation for delay in the application, including the steps taken by the Applicant, whether she had contributed to the delay, and whether the representative’s error was sufficient to constitute exceptional circumstances in the context of all the facts. [27] The Applicant submitted that being entitled to raise “the thing the Act requires” does not result in that conduct not being unreasonable. The reasonability of an act or omission requires consideration of the factual matrix in all the circumstances, which may be taken to include education and sophistication; access and availability to legal advice and engagement with parties, etc. [2025] FWC 3615 7 [28] The Respondent said it did not ignore relevant authorities or fail to engage with the Applicant’s case. It did not argue “incorrect law” as asserted. The Respondents’ position was that, on the material presented, the representative error did not amount to exceptional circumstances and did not warrant the exercise of discretion to grant additional time. The Respondents’ submissions were made in good faith, with reference to the relevant statutory provisions and authorities. There is no evidence that the Respondents acted for an improper purpose, were vexatious or that the objection was initiated or maintained solely to cause the Applicant to incur costs. To the contrary, the Respondents agreed for the matter to be determined on the papers to expedite the matter. [29] The Respondent noted the Applicant then points to the evidence filed in support of the extension of time and submissions on or about 24 September 2025, and to email correspondence to the Respondents (who were not then legally represented) on 24 and 26 September 2025 in which the Applicant’s representative demands the objection be withdrawn and states that a failure to do so in light of the Applicant’s evidence and submissions would be an unreasonable act. That is now said to be the basis for the application for an order for indemnity costs. Such assertions fail scrutiny. The Respondent said, even accepting for argument’s sake that not withdrawing the jurisdictional objection after receiving the Applicant’s material and threats was an “unreasonable act” on the part of the Respondents (which is denied), no costs of the Applicant arise from that act. The application seeks costs said to be incurred between 1 September 2025 and 24 September 2025, all of which predate the asserted act in the “open emails”. The application fails to meet the test. [30] The Applicant submitted that these arguments are made without consideration of the content of the application, part 1.4, which is the document upon which the Applicant makes her claim, and that, effective 1 September 2025, the Respondent was on notice of the requirement to engage legal representation given they were likely unreasonably defending the application. The email of 1 September is as follows: “Dear Ms Ellison We refer to the Form F8, part 1.4, which sets out the reasons for delay in filing the Application. May we kindly recommend the First Respondent engage a legal representative in this matter as, given the reasons provided for the delay, if we are required to attend a jurisdictional objection Hearing, we will seek our Client’s costs be paid by the First Respondent on an indemnity basis. We consider, as against the reasons provided for the delay, the First Respondent is unreasonably defending the Application.” vexatiously or without reasonable cause – s.611(2)(a) [31] The Applicant referred to the matter of Kanan v Australian Postal and Telecommunications Union,5 which states: [2025] FWC 3615 8 “It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. That is the situation in the present case. The qualification of s 347 applies. The Court has power to order costs against the applicant.” (Applicant emphasis added) [32] The Applicant noted that in this matter, the Respondents were aware and on notice of matters within the Form F8 and on plain reading same, it ought to have been reasonably apparent that there was no basis to assert that the reason for delay would not be readily accepted by the Commission given practitioner error loomed large. Underpinning the above submission is the well-accepted proposition at law that practitioner error gives rise to a reasonable excuse or exceptional circumstances. The Respondents have proceeded in defiance of such law and gone on, despite the Form F8 to assert no exceptional circumstances exist. [33] The Applicant said notwithstanding, a consideration of the totality of the Applicant’s position ought to have resulted in a prudent Respondent not raising an objection. Instead, it is considered the Respondents have objected for the sake of objecting. [34] The Respondent contended that as a matter of law, it is doubtful whether an objection to an out of time filing of a general protections application can be said to be unreasonable for the purpose of an award of costs. That is because: a) Under s.366 of the Act an application can only be made within the prescribed time, or “within such further period as the Commission allows under subsection (2)”. Unless and until the Commission allows such additional time the application is not made in accordance with the Act. b) To allow further time for filing under s.366(2) the Commission must first be satisfied that there are “exceptional circumstances” and then determine that the circumstances are such as to exercise its discretion. A Respondent is entitled to raise the very thing the Act requires, namely that the Commission consider in its discretion whether further time ought to be granted to an applicant in the particular circumstances of the case. The mere existence of representative error does not automatically mean that there are “exceptional circumstances”, or that as a rule the Commission’s discretion must be exercised. c) The Applicant is required to obtain an extension of time to pursue the matter. no reasonable prospect of success – s.611(2)(b) [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 [2025] FWC 3615 9 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.” (Applicant emphasis added) [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 [2025] FWC 3615 10 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). Consideration [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. COMMISSIONER Printed by authority of the Commonwealth Government Printer [2025] FWC 3615 11 <PR794277> 1 [2025] FWC 2946. 2 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 3 McConnell v A&PM Fornataro (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 Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].