Federal Court of Australia

Cokic v Fair Work Commission [2026] FCA 1015

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the decisions of the Fair Work Commission in Alex Cokic v Tronox Management Pty Ltd [2025] FWC 437 and Alex Cokic v Tronox Management Pty Ltd [2025] FWCFB 80 be quashed and set aside.

2.    The matter be remitted to the Fair Work Commission for determination according to law.

3.    The oral application made by Mr Cokic for admission to evidence of the two affidavits of Alexander Jordan Cokic dated 21 July 2026 and the document headed “Statement of Material Facts” be refused.

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

REASONS FOR JUDGMENT

COLLIER J:

1    The applicant, Mr Alexander Cokic, seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) and s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in respect of two decisions. The first is a decision of the Fair Work Commission (FWC) dated 14 February 2025 reported as Alex Cokic v Tronox Management Pty Ltd [2025] FWC 437 (FWC Decision). The second is a decision of the Full Bench of the FWC (Full Bench) dated 17 April 2025 reported as Alex Cokic v Tronox Management Pty Ltd [2025] FWCFB 80 (Full Bench Decision).

2    Materially, in the Full Bench Decision, the Full Bench, pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act), refused permission to Mr Cokic to appeal against the FWC Decision. In the FWC Decision, the FWC did not allow Mr Cokic a further period to file his substantive application for an unfair dismissal remedy (substantive application) against the second respondent, Tronox Management Pty Ltd (Tronox), and further dismissed the substantive application. Tronox had previously been Mr Cokic’s employer.

3    In his Originating Application lodged in this Court on 29 April 2025, Mr Cokic sought the following orders:

1.    A writ of mandamus pursuant to S39B(1A) b of the Judiciary Act 1903 arising under the Constitution, or involving its interpretation

2.    A declaration pursuant to s 16(1)(c) of the ADJR Act or s 39B of the Judiciary Act that the Decision is invalid and set aside.

3.    Alternatively, to 2, an order pursuant to s 16(1)(a) of the ADJR Act, quashing or setting aside the Decision with effect from the date of the order or from such earlier or later date as the Court specifies.

4.    An order that permission to appeal be granted against decision [2025] FWC 437 and order PR784399 of Commissioner Schneider at Perth on 14 February 2025 in matter number U2024/10593

5.    An order pursuant to s 16(1)(a) of the ADJR Act, that Commissioner Schneider, Deputy President Millhouse, Commissioner Crawford and Commissioner Sloan are not to preside over matters involving the Applicant.

6.    Costs

7.    Such further or other orders as this Court thinks fit.

4    I note that Mr Cokic was self-represented in this Court, and also in the proceedings before the FWC and the Full Bench.

5    In my view the decisions of the FWC and the Full Bench should be quashed and set aside, and the matter remitted to the FWC for determination according to law. In explaining my decision it is appropriate to first turn to the background of this proceeding.

Background

6    Mr Cokic was formerly employed by Tronox as a Contracts Specialist. He was dismissed from his employment effective 15 August 2024, and was paid in lieu of notice.

7    On 8 September 2024, Mr Cokic filed the substantive application in the FWC, pursuant to s 394 of the FW Act. Section 394 provides:

(1)     A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2)     The application must be made:

(a)     within 21 days after the dismissal took effect; or

(b)     within such further period as the FWC allows under subsection (3).

(3)     The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)     the reason for the delay; and

(b)     whether the person first became aware of the dismissal after it had taken effect; and

(c)     any action taken by the person to dispute the dismissal; and

(d)     prejudice to the employer (including prejudice caused by the delay); and

(e)     the merits of the application; and

(f)     fairness as between the person and other persons in a similar position.

    (emphasis added)

8    It is not in dispute that Mr Cokic’s substantive application was made on 8 September 2024, being some 24 days after the dismissal took effect. As a result, it is common ground that the substantive application was made out of time, and, to progress, required the FWC to allow a further period for the substantive application to be made, pursuant to ss 394(2)(b) and 394(3) of the FW Act. Tronox opposed the substantive application being made out of time.

Proceeding before the FWC

9    When the matter came before the FWC, Mr Cokic sought to make his substantive application pursuant to s 394(2)(b) of the FW Act. The FWC noted at [4] of the FWC Decision that Mr Cokic was self-represented and had given evidence in support of his substantive application.

10    Mr Cokic’s submissions referable to the matters set out in s 394(3) of the FW Act were summarised at [19]-[20] of the FWC Decision as follows:

[19]     Mr Cokic submits that the following reasons contributed to the delay:

•    He is suffering from a cognitive impairment which impacted his ability to file his application within the 21-day time period.

•    Mr Cokic cited Dr Alexander Mladenovic, from ADHD WA, who completed an assessment on Mr Cokic in support of his extension of time.

•    Mr Cokic notes that he was admitted to hospital on 26 August and discharged on 28 August 2024 following surgery on an infection.

[20]     The Applicant submits that he was required to attend multiple medical related appointments during the 21-day period and period of delay, as outlined below:

•    15 August (date of termination) – Asbestos Disease Society Australia appointment.

•    15 August (date of termination) – Winthrop Chiropractic appointment.

•    16 August – Sleep study follow up.

•    16 August – Optometry clinic.

•    17 August – Chiropractic appointment.

•    19 August – Chiropractic appointment.

•    20 August – Natural Medical Clinic.

•    21 August – General Practitioner Appointment.

•    22 August – Clinipath Pathology tests.

•    22 August – Chiropractic appointment.

•    23 August – Hair Tissue Metal Analysis.

•    26 to 28 August – Private hospital admission.

•    31 August - General Practitioner Appointment.

•    3 September - Sleep study follow up.

•    4 September - Natural Medical Clinic.

•    8 September (date of application) – Diabetes Educator.

11    In relation to Mr Cokic’s claims, the FWC found, in summary, as follows:

    Mr Cokic was aware of his dismissal on 15 August 2024, the day on which his employment was terminated (at [28]-[29]).

    Mr Cokic was aggrieved by his termination and took action to contest the end of his employment (at [30]-[32]).

    Tronox did not demonstrate in any substantive manner that it would be inconvenienced by an extension of time to Mr Cokic to pursue an unfair dismissal remedy. Mr Cokic’s delay in lodging his substantive application was “relatively short (3 days)”, such that any prejudice caused to Tronox by an extension of time would be minimal (at [33]).

    The merits of the application turned on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of the matter if an extension of time were granted (at [36]). However, it was not appropriate for the FWC to resolve contested issues of fact going to the ultimate merits of the substantive application for the purposes of taking account of the matter in s 394(3)(e) (at [37]). In the absence of a hearing of the evidence, it was not possible “to make any firm or detailed assessment of the merits” – rather the applicant had “an apparent case”, to which the respondent had “an apparent defence” (at [38]).

    Neither Mr Cokic nor Tronox raised any directly relevant matter concerning the issue of fairness (at [42]).

    Mr Cokic did not adequately address the delay in lodging his substantive application and, outside of his admission to hospital between 26 and 28 August 2024, was capable of engaging in other tasks including lodging his substantive application (at [52]-[53]).

12    The FWC concluded:

[59]     As I have outlined previously in this decision, Mr Cokic was aware that his employment was at risk prior to the decision being made to terminate his employment. The decision to terminate Mr Cokic’s employment was clearly delivered to him in unambiguous terms. There was no delay to Mr Cokic being able to file his application caused by the conduct of Tronox. I have determined that there is no material prejudice that Tronox would suffer if an extension of time was granted, however the lack of prejudice does not mean an extension of time should be granted.

[60]     Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.

…

[61]     Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time …

Proceeding before the Full Bench

13    Mr Cokic appealed to the Full Bench against the FWC Decision, and the matter was listed before the Full Bench for determination of the question of permission to appeal only.

14    After summarising the proceedings before the FWC, the Full Bench at [9] of the Full Bench Decision set out Mr Cokic’s grounds of appeal as follows:

(1)     The Commissioner made a significant error of fact in failing to comply with the Interpretation Act 1984 (WA) in calculating whether Mr Cokic’s unfair dismissal application was filed within the 21-day statutory timeframe.

(2)     The Commissioner made a significant error of fact in determining Mr Cokic attended an appointment on the date his application was made, when the appointment was in 2023 and not 2024.

(3)     The Commissioner is not medically trained and made significant errors of fact in his assessment of the medical evidence relied upon by Mr Cokic.

(4)     The Commissioner made a series of factual findings for which he was not medically qualified to make, and in doing so discriminated against Mr Cokic on the basis of disability and breached his human rights.

15    The Full Bench further noted Mr Cokic’s submissions that:

    it was in the public interest for the Full Bench to grant Mr Cokic permission to appeal because the appeal raised questions as to whether the FWC and Tronox engaged in disability discrimination and the issue of whistleblower protection; and

    the substantive application was dismissed on a technicality which manifested an injustice.

16    The Full Bench set out the principles relevant to granting permission to appeal and relevantly noted that:

[11]     There is no right to appeal, and an appeal may only be made with the permission of the Commission. This appeal is from a decision made under Part 3-2 of the Act. Therefore, s 400 of the Act applies. By s 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”

[12]     The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error or a preference for a different result. Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.

[13]     It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[14]     An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds. However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

(emphasis added, footnotes omitted)

17    With reference to the appeal grounds summarised by the Full Bench at [9], the Full Bench then found (materially) as follows:

    In relation to ground of appeal (1) (regarding the FWC’s alleged failure to comply with the Interpretation Act 1984 (WA)), the relevant act to be interpreted was the Acts Interpretation Act 1901 (Cth) (AIA). The FWC correctly applied the FW Act and the AIA by excluding weekends from the calculation of the relevant 21-day period (at [16]).

    In relation to ground of appeal (2) (regarding the FWC’s alleged error in determining that Mr Cokic attended an appointment on 8 September 2024, the day Mr Cokic’s application was made), such an error did not rise to the significance required by s 400(2) of the FW Act (at [17]).

    In relation to ground of appeal (3) (regarding the FWC’s alleged errors of fact in assessing the medical evidence relied upon by Mr Cokic), the lack of medical training of the FWC Commissioner did not make the assessment erroneous (at 18]).

    In relation to ground of appeal (4) (regarding the lack of medical qualifications of the FWC Commissioner and alleged discrimination against Mr Cokic), the FWC’s consideration of the medical evidence was not discriminatory, did not breach Mr Cokic’s human rights and displayed no significant error of fact (at [19]).

    In relation to Mr Cokic’s submissions about other matters not dealt with in his grounds of appeal, the further matters did not demonstrate an arguable case of appealable error in the FWC’s Decision (at [20]).

    In relation to Mr Cokic’s submissions concerning public interest, Mr Cokic’s appeal did not raise any issue of law or principle that might have a wider application, as his application for an extension of time was determined on the basis of its own particular facts (at [21]).

18    The Full Bench refused Mr Cokic permission to appeal.

Present Proceedings

19    The FWC filed a submitting appearance save as to costs.

20    At the commencement of the hearing before me I raised issues with the parties concerning the interpretation of the phrase “the merits of the application” for the purposes of s 394(3) of the FW Act (transcript WAD182/2025 21 July 2026 pp 2-3). In particular, I asked them whether, when the FWC considers the issue of “exceptional circumstances” for the purposes of s 394(3), the merits of a substantive application should be considered by the FWC at least at an impressionistic level (transcript WAD182/2025 21 July 2026 p 3 lines 29-39, p 6 lines 1-5).

21    Plainly, whether Mr Cokic’s substantive application had “merit” is not a decision for this Court. The reason that I raised this issue with the parties at the hearing was that, in examining the FWC Decision where Mr Cokic sought to make his substantive application out of time, there was very limited discussion of the merits of Mr Cokic’s application. I further noted that, in considering whether permission to appeal should be granted, the Full Bench did not advert to the very limited discussion by the FWC of that issue.

22    As the applicant and the second respondent both informed me at the hearing that they had not turned their mind to that issue, I granted them leave to file and serve written submissions at a later date (transcript WAD182/2025 21 July 2026 p 4 lines 5-23).

23    At Mr Cokic’s request I also granted leave to Mr Cokic to file and serve written submissions concerning the relevance of additional material on which he sought to rely, with the second respondent having an opportunity to file submissions in response. I shall turn to the issue of allowing further material to be filed later in these reasons.

Submissions of Mr Cokic

24    In support of the grounds of his application, Mr Cokic made a number of submissions alleging what appears to be various conspiracies between the Commonwealth and Western Australian governments, industry and, among others, Tronox. Many of Mr Cokic’s submissions also concerned the merits of his substantive application, and factual claims about his employment with Tronox.

25    As I have already noted, merits review is outside the scope of the present proceedings.

26    I further note that Mr Cokic made submissions concerning whether the FWC had taken into account the merits of his substantive application.

27    Otherwise, relevant oral and written submissions of Mr Cokic can be summarised as follows:

    The FWC failed to assess and interrogate uncontested issues of fact, including three documents of Tronox which demonstrated a deliberate intent to remove Mr Cokic from his employment.

    Mr Cokic had a genuine unfair dismissal claim.

    The FWC failed to have regard to medical evidence in considering the explanation for Mr Cokic’s failure to lodge the application within time.

    Pursuant to R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46], circumstantial evidence must not be considered on a piecemeal basis and must be evaluated in its entirety.

    The FWC acted contrary to s 739(5) of the FW Act by failing to:

•    perform the functions of Commissioner and exercise powers in a manner that was fair, just, quick, informal and that avoided unnecessary technicalities (contrary to s 593 of the FW Act);

•    exercise powers or functions with equity, good conscience and the merits of the matter (contrary to s 578 of the FW Act);

•    prevent discrimination specifically on the basis of race and mental disability (contrary to s 578 of the FW Act); and

•    consider the reason for the delay, the merits of the substantive application and the fairness as between Mr Cokic and other persons in a similar position (contrary to s 394(3)(a), (e) and (f) of the FW Act).

    The FWC’s acts and omissions incentivise employers, including Tronox, to target employees by subjecting them to significant psychological abuse and excessive work-related stress for the purposes of:

•    removing them from the organisation whilst injured; and

•    maximising the opportunity of the employee failing to meet the 21-day period required by s 394(2) of the FW Act.

    The Full Bench failed to undertake a threshold or impressionistic assessment of the merits of the substantive application.

Submissions of Tronox

28    Tronox has also filed submissions in this proceeding. In summary, it contended:

    The discretion to extend a statutory deadline is seen as requiring a plaintiff to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the relevant limitation in the context that the legislature has fixed a short limitation period.

    Section 394 of the FW Act only obliges the FWC to consider the merits of an application as one factor among six listed in s 394(3). There is ample evidence that the FWC considered the merits of the position of both parties, finding that the matter would turn on contested facts.

    In his appeal to the Full Bench Mr Cokic relied on four grounds of appeal, however the only ground which could be said to relate to the present application for review concerned the contention that the FWC Commissioner was not medically qualified to assess Mr Cokic’s medical evidence, and accordingly could not have discharged the duty to make an assessment under s 394(3)(e) of the FW Act. This ground lacked merit, as it could not be expected that a judicial officer would possess the specific, relevant qualifications to make a finding of fact.

    Mr Cokic’s contention that the FWC selectively assessed evidence was scandalous and without evidentiary foundation.

    To the extent that Mr Cokic relied on s 593 or s 577 of the FW Act, there was no evidence that either the FWC or the members of the Full Bench acted in a manner that was contrary to either provision.

    No appealable error was identified by Mr Cokic in the reasoning of the FWC or the Full Bench.

    The extension of time was refused by the FWC even noting the possibility that Mr Cokic’s claim was legitimate.

29    In relation to the issue of interpretation of s 394(3)(e) of the FW Act, Tronox submitted, in summary:

    Factors listed in s 394(3) of the FW Act are similar to matters typically applied on an application to extend time where a statute does not identify mandatory factors.

    “The merits of the application” has been interpreted to require consideration of whether a ground is, inter alia, arguable or reasonably arguable.

    In Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 2) [2021] FCA 412 Abraham J affirmed that the FWC is not obliged to make findings on contested factual matters which relate to the substance of the claims.

    The decision as a whole of the FWC in this case demonstrated that the reasons for the delay constituted the most significant factor for Mr Cokic and the FWC Commissioner. The Full Bench observed that factors including the merits did not carry significant weight in the FWC’s overall assessment.

    The FWC examined the materials filed by the parties and concluded that Mr Cokic had an apparent case, to which Tronox had an apparent defence. That satisfied the requirement under s 394(3)(e) to consider the merits of the application. There was no reason to suppose in this proceeding that a more detailed consideration of the merits was required.

Consideration

30    Pursuant to the FW Act, appeals from decisions of the FWC can be heard by a Full Bench, by way of a rehearing (ss 605, 607 and 614). Appeals to the Full Bench can only be made after permission to appeal is granted by the Full Bench (s 400(1) of the FW Act).

31    There is no appeal from a decision of the FWC (sitting as either a single member or the Full Bench) to this Court, however judicial review of decisions of the FWC is available pursuant to s 39B of the Judiciary Act and ss 5 and 16 of the ADJR Act. As Katzmann J explained in similar circumstances in Merhi v Commonwealth of Australia [2021] FCA 181:

44.    … this is not an appeal from the decision of the Full Bench. It is an application for judicial review. Ms Mehri has no right to appeal. The relief she seeks is to require the Full Bench consider her application for permission to appeal afresh. To secure that opportunity she needs to establish that the decision of the Full Bench to refuse permission to appeal is affected either by jurisdictional error or error of law on the face of the record. Regardless of what the Court may think of the decision under review, it cannot inquire into the merits of the grounds of appeal. See, for example, Menzies v Fair Work Commission [2020] FCA 36; 293 IR 301 at [27]. The mere change in nomenclature from “appeal” to “application” and “appellant” to “applicant” did not convert an appeal into an application for judicial review and an appeal ground into an available ground of review. As Buchanan J explained in Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; (2015) 229 FCR 537 at [59] (Allsop CJ and Siopis J agreeing at [1] and [2] respectively):

The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all.

32    Similarly, as the Full Court explained in Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139; (2018) 265 FCR 134 at [41], in circumstances where the Full Bench refuses permission to appeal, the appellate decision is not conclusive and operative, and there is no jurisdictional impediment to an application for judicial review of the primary decision of the Commission being made to the Federal Court. See also Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169; (2016) 247 FCR 138 at [45].

33    It is in this context that Mr Cokic asks the Court to set aside both the FWC Decision and the Full Bench Decision, and has sought orders including in the nature of prerogative writs.

34    Before turning to Mr Cokic’s grounds of application in this proceeding, I consider it appropriate for me to first consider the issue I raised with the parties at the hearing, namely:

    whether the FWC and, in considering the application for permission to appeal the FWC Decision, the Full Bench, was required to have regard to the merits of Mr Cokic’s substantive application within the meaning of s 394(3) of the FW Act; and

    if they did not, whether such failure constituted an error within the meaning of s 16 of the ADJR Act and/or s 39B of the Judiciary Act.

FWC Decision

35    Section 394(2) of the FW Act provides that an application for an unfair dismissal remedy must be made either within 21 days after the dismissal took effect, or within such further period as the FWC allows under s 394(3). Section 394(3) provides that the FWC may allow a further period of time for an application to be made if the FWC is satisfied that there are exceptional circumstances. In determining whether there are “exceptional circumstances” warranting an applicant to be allowed a further period to apply for an unfair dismissal remedy pursuant to s 394, the FWC is required to take into account a list of factors set out in s 394(3). In particular, s 394(3)(e) identifies “the merits of the application” as a factor the FWC is required to take into account.

36    That the list in s 394(3) is exhaustive, and that it is a mandatory list of factors for the FWC to take into account, is clear from the Explanatory Memorandum to the Fair Work Bill 2009 (Cth) p 250 paragraph 1573.

General principles

37    As the second respondent has submitted, the list of factors in s 394(3) of the FW Act is very similar to the list of factors routinely taken into account by the Courts in other contexts where an extension of time to make an application is considered. In the leading case of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344, 354-356, Wilcox J summarised the principles relevant to consideration by the Court of an application to extend time in respect of an application for review under the ADJR Act as follows:

(a)    … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time …

(b)    Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished …

(c)    Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension …

(d)    However, the mere absence of prejudice is not enough to justify the grant of an extension … A delay which may result, if the application is successful, in the unsettling of other people … is likely to prove fatal to the application.

(e)    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted …

(f)    Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion …

38    All or some of these matters have been found to be relevant to the exercise of judicial discretion in many circumstances involving an application for an extension of time in civil litigation. In particular I note cases decided in the following areas of law:

    income tax (Hunter Valley);

    migration (Younes v Minister for Immigration and Multicultural Affairs [2026] FCAFC 35);

    safety, rehabilitation and compensation (Haywood v Comcare [2026] FCA 773);

    practice and procedure (Quach v RU [2024] FCAFC 32);

    human rights (Weir v Telstra Limited [2023] FCAFC 196; (2023) 301 FCR 261);

    partnership (Martin v Norton Rose Fulbright Australia [2019] FCAFC 234);

    corporate insolvency (Erskine as liquidator of North Shore Property Developments Pty Ltd (in liq) v 72-74 Gordon Crescent Lane Cove Pty Ltd [2019] FCAFC 62); and

    social security (BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448).

39    The principles have also been considered relevant in the criminal arena: see for example Parker v The Queen [2002] FCAFC 133.

40    Further, and perhaps most importantly in the present context, the principles have been considered in the employment law arena in more recent times: see for example Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; (2020) 279 FCR 114 at [149]-[151], [156]-[157]. As was also explained in the Explanatory Memorandum, the list of factors in s 394(3) is based on the principles explained by Marshall J sitting as the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. In that case, which concerned an application for dismissal made out of time, Marshall J at 301 noted that the Industrial Relations Court had not had available to it any evidence to justify it holding any view on the merits of the matter, and accordingly that aspect was neutral in that case.

41    However, a distinction may be drawn between general principles of law concerning applications for extension of time, and the position contemplated by s 394(3) of the FW Act, in that s 394(3) requires the FWC to be satisfied that there are exceptional circumstances, taking into account the six factors listed, including the merits of the application. This point of distinction from the general law was noted by Abraham J in Ittyerah, where an applicant had sought review of a decision of the Full Bench of the FWC. In that case, the Full Bench of the FWC had not granted the applicant permission to appeal a FWC Commissioner’s decision refusing the applicant a further period to file his substantive application. Abraham J considered the weight to be given to the s 394(3) factors as a matter of statutory construction, and continued:

31.    The starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ.

32.    The language which has actually been employed in the text of legislation is the surest guide to legislative intention: Alcan at [47]. The task of the courts is to interpret the words used by Parliament. The courts do not determine what Parliament intended to say: R v JS [2007] NSWCCA 272; (2007) 230 FLR 276 at [142]; citing Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 (Re Bolton). In Re Bolton the text of the statute prevailed over its apparently intended broader operation as reflected in a second reading speech. Although it is permissible to use this extrinsic material to aid in the interpretation of an Act pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth), the clear text of the law will ultimately be determinative: see Re Bolton at 518, 532 and 547, and see Lodhi v Attorney-General (Cth) [2020] FCA 1383 at [12]- [15].

33.    As to the first submission, the provision expressly requires an applicant establish “exceptional circumstances”. That is determined by the Commission considering the factors in s 394(3) and assessing whether an applicant has established exceptional circumstances exist in the particular case. The phrase “exceptional circumstances” is to be given its ordinary and natural meaning. That the factors to which regard must be had in making that assessment are identified in the provision, does not alter that proposition. Those factors say nothing about the meaning of the phrase “exceptional circumstances”. All words must prima facie be given some meaning or effect: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414; Project Blue Sky at [17]. The phrase must have work to do; the interpretation contended for by the applicant renders the phrase meaningless.

34.    The applicant’s submission is not supported by the text of the provision when considered in context and given its purpose. The express requirement of “exceptional circumstances” is to be contrasted with the position under the ADJR Act, which does not carry such requirement: see Hunter Valley at 348.

…

36.    … Nor is there any basis in the text of the provision to confine the factors to only being in favour of or against the grant of the extension, with a factor being unable to be neutral. If Parliament had intended to confine the use of these factors in the manner contended, it would be expected to be in the text. As noted above, the provision does not address the issue of the weight to be attached to particular factors and, as such, the weight to be given to a particular factor is for the administrative decision maker, the FWC: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197]; Menzies v Fair Work Commission [2020] FCA 36; (2020) 293 IR 301 (Menzies) at [34].

(emphasis added)

42    Later in Ittyerah her Honour specifically turned to the issue of the merits of the application which had been before the FWC in that case. In dismissing the aspect of the applicant’s case referable to merits, her Honour found:

83.    The applicant’s submission entirely ignores the nature of the application before the Deputy President. Although he purports to accept that “the Commission is not required to undertake a detailed examination of the substantial case in considering an extension of time application the merits of the matter were a relevant consideration under s 394(3)(e)”, he nonetheless submitted that “a hearing was conducted so that matters involving contested facts could be resolved, including by providing sworn evidence and granting each party the opportunity to examine and cross-examine witnesses”. That he chose to file extensive evidence does not alter the nature of the application for determination before the FWC. It did not oblige the respondent to produce evidence. Nor does it oblige the FWC to make findings on contested factual matters which relate to the substance of the claims.

84.    Contrary to the applicant’s submission, the respondent was not required to file evidence on the substantive issues and could rely on the material filed by him to submit that it had a meritorious case. It is a matter for a respondent what material they file in opposing the application. The reasoning of the Deputy President was plainly open and orthodox given the material before it, and the Full Bench concluded there was no error in the approach. The applicant has not established there is any jurisdictional error in the approach. There is no procedural unfairness in the Deputy President considering all the material before her. The Full Bench’s reference at [41] that the “Commission has consistently held that evidence on the merits is rarely considered, let alone tested in applications of this kind”, read in context, is not an error. Indeed, immediately following was “[t]here are sound reasons why the Commission should not embark on a detailed examination of the substantial case in considering an extension of time application”. That is plainly correct. It does not reflect that this factor was not considered, as the Deputy President’s reasons demonstrate; a finding was made that there were contested points. In reaching that conclusion, the Deputy President at [32]-[33] referred to Miller, citing and adopting a passage therefrom as applicable to this case. That passage includes that the applicant has at least an arguable case. That was held not to be an error. The applicant’s submission that there was a constructive failure to exercise jurisdiction because the Deputy President did not make any further findings is plainly untenable.

43    Having regard to these principles I make the following observations.

44    While I endorse the finding of Abraham J in Ittyerah at [33] that the phrase “exceptional circumstances” in s 394(3) must have “work to do”, in determining whether exceptional circumstances exist the FWC must have regard to the factors listed in s 394(3)(a)-(f) of the FW Act. Like “exceptional circumstances”, the language of the factors listed in s 394(3)(a)-(f) and the phrase “taking into account” must have “work to do”.

45    The phrase “taking into account” is defined by the Macquarie Dictionary as:

To take into consideration; allow for.

46    It is well-settled that a requirement for a decision-maker to “consider” – or take into account – a matter involves an active intellectual process directed at that matter: Kiefel J in Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 495. As Kiefel CJ, Keane, Gordon and Steward JJ further explained in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582:

24.    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

(footnotes omitted)

(see also DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [12]).

47    It is also well-established that the weight to be given by an administrative decision-maker to a particular mandatory factor is a matter for the decision-maker: Abraham J in Ittyerah at [36]; see also Construction, Forestry, Maritime, Mining and Energy Union and Others v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161 at [33]. It may well be sufficient consideration for a decision-maker to consider a mandatory factor relevant to s 394(3) of the FW Act and determine it to be “neutral”: Brodie-Hanns at 301; Federal Commissioner of Taxation v Macquarie Bank Ltd [2013] FCAFC 13; (2013) 210 FCR 164 at [200]; Ittyerah at [36]; Merhi at [12] and [48].

48    Justice Marshall in Brodie-Hanns referred to “the merits of the substantive application” as a relevant consideration in determining whether an extension of time ought be allowed in the filing of a substantive application. As I noted previously in these reasons, his Honour found that the aspect was neutral in that case, because “the Court has not had available to it any evidence to justify it holding any view on the merits of the matter.” However I also note the observation by Marshall J at 299 that:

The relevant principles which should govern the Court’s discretion to extend the time within which an application under s 170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Ltd (No 2) (1994) 57 IR 186 and Beazley J in Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.

I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter.

(emphasis added)

49    It appears from the reference to Hunter Valley that Marshall J considered that the phrase “the merits of the application” in the context of considering an extension of time had the same meaning in the employment law context as in the general law. In order to give meaning to the phrase “the merits of the application” in s 394(3) of the FW Act, I consider that it is appropriate to have regard to the manner in which the Courts have explained this concept in other contexts.

50    Accordingly I find as follows.

51    First, consideration of “the merits of the application” by the FWC in the context of allowing a further period of time for the making of an application clearly does not require the FWC to make final determinations in respect of contested issues in the proceedings. An observation to this effect by the FWC in its reasons for decision was uncontroversial. Final determinations are plainly for the final hearing of proceedings, and are not appropriate when considering the possibility of an extension of time for the making of an application (cf MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]; EEF19 v Minister for Immigration and Citizenship [2025] FCA 1444 at [30]).

52    Second, in considering the merits of an application, it is appropriate for a decision-maker to at least consider those merits at a reasonably impressionistic level (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]). However, as Kiefel CJ, Gageler, Keane and Gleeson JJ continued to explain in Tu’uta Katoa:

18.    … there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

(footnotes omitted)

53    Third, assessment of the merits of an application may include such consideration as whether a ground of the application is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [13], [27]; FKV17 v Minister for Home Affairs [2022] FCAFC 93; (2022) 292 FCR 201 at [137]; EEF19 at [30]; MZABP at [63]; SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48]; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [47]). So, for example, in circumstances where a decision-maker considers that an application is hopeless, either by reference to the grounds of the application or the evidence on which the application rests, the decision-maker may conclude that it would be futile to grant an extension of time for consideration of the substantive application: see for example Younes v Minister for Immigration and Multicultural Affairs [2026] FCAFC 35 at [18]; Gambaro v Mobycom Mobile Pty Ltd [2021] FCA 211 at [25]; Douglas v Racing Victoria Limited [2019] FCA 1745 at [4]; SZJVT v Minister for Immigration and Citizenship [2007] FCA 1894 at [5].

54    Fourth, and a general proposition in this context, I further note that the importance of a decision-maker taking into account the merits of the substantive application in considering an extension of time has been explained on many occasions. In FKV17 Rangiah J for example observed:

151.    The prospects of success of the application proposed to be made under s 476 of the Act are relevant to the interests of the administration of justice for at least three reasons. First, it is ordinarily in the interests of justice that a person be permitted to place an arguable case before the Court (while bearing mind that this principle is affected by an applicant under s 477(2) being unable to do so as of right): cf Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552 at [57]; DHX17 at [72]-[76]. Second, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused: Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 at 98. Third, it is unlikely to be in the interests of the administration of justice to grant an extension of time to make an application that has little or no prospects of success: Jackamarra v Krakouer at 521, 540, 543; MZABP (at first instance) at [62].

55    In Haining v Drake [1998] FCA 1168; (1998) 87 FCR 248 the Full Court observed at 250:

… At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time. The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well. The acceptability of the applicant’s explanation for delay cannot be divorced from the effect of that delay on the respondent or other people. If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.

56    In Pham v Comcare [2003] FCAFC 166 in the context of an application for leave to appeal against a decision refusing an extension of time to appeal from a decision of the (then) Administrative Appeals Tribunal, the Full Court affirmed the decision of the primary Judge (Ryan J) and continued:

6.    Referring to the notices, Ryan J commented:

“If I had been persuaded to grant an extension of time, as contemplated by s 44(2B) of the Act, it would have been necessary for the applicant to have proposed a properly formulated notice of appeal identifying a question of law giving rise to an arguable right of review under s 44 of the Act. However, it has been established by a consistent line of authority in this Court that the strength of an applicant’s case on the merits has an important bearing on the Court’s exercise of its discretion to grant or refuse an extension of time under s 44(2A) of the Act. Thus in Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 Finn J noted, at 701;

“The particular factors that are of immediate significance are (a) the explanation given of the delay; (b) the actions of the applicant in contesting the decision otherwise than by appeal; (c) prejudice to the respondent; and (d) the merits of the application.”

7.     His Honour concluded that the applicant had failed to identify any question of law on the material as it stood. He also was unable to discern any error of law in the Tribunal’s reasons. In consequence there were no prospects of success on the merits. An extension of time would be futile.

(emphasis added)

57    Similarly in Mentink v Minister for Home Affairs [2013] FCAFC 113 Griffiths J (Edmonds J agreeing) observed:

37.    Secondly, it is equally important in my view not to lose sight of the fact that, while the merits of a substantive application are a relevant matter, the assessment of those merits arises in the context of an interlocutory application. Appropriate caution is required in assessing the merits of a substantive application at that stage of the proceeding. I respectfully agree with the following additional observations of French J in Seiler at 98 on that issue:

… The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it …

Were the merits of Mr Cokic’s application taken into account by the FWC in determining whether there were exceptional circumstances?

58    In the FWC Decision, the FWC Commissioner recognised that evidence was given in the FWC proceedings by Mr Cokic, and by Ms Louise Symes on behalf of Tronox. From [8]-[9] the FWC briefly summarised certain events relating to the termination of Mr Cokic’s employment, and then concluded that Mr Cokic’s substantive application was made out of time.

59    The FWC discussed in some detail issues relevant to the delay by Mr Cokic in making his substantive application. However, contrary to the submissions of Tronox, in my view the FWC did not actively engage with the issue of the merits of Mr Cokic’s substantive application. The FWC was undoubtedly correct in finding at [37] that it would be inappropriate for it to resolve contested issues of fact going to the ultimate merits of the case. Nonetheless, in circumstances where there was a substantive application before the FWC, supported by submissions and evidence, it was incumbent on the FWC to have regard to the application and, at least, form an impressionistic view of the merits of Mr Cokic’s substantive application.

60    The FWC observed at [36] that the merits of the substantive application turned on contested points of fact, in respect of which evidence – presumably that before the FWC – would be heard and weighed in a hearing of the merits of the matter. The FWC continued at [38] that, in the absence of hearing the evidence, it was not possible to make any firm or detailed assessment of the merits. That may very well be. However the course of events anticipated by the FWC at [36], and reiterated at [38], is surely to be expected in any proceeding in the FWC. The final outcome of a substantive application for unfair dismissal, which is opposed, would plainly be ultimately determined by the FWC having regard to the submissions and evidence before it at the final hearing. In no way was the FWC in this case prevented from forming, by reference to such material as was before it, at the very least an impressionistic view of the merits of the substantive application. It is entirely unclear how it was “not possible [for the FWC] to make an assessment of the merits of the application”, when the FWC plainly stated that it had submissions and evidence before it.

61    Tronox submitted that the FWC’s Decision demonstrated that the reasons for the delay on the part of Mr Cokic was the most significant factor for the parties, and that the recognition by the FWC that “[t]he Applicant has an apparent case, to which the Respondent has an apparent defence” satisfied the requirement under s 394(3)(e) to consider the merits of the application. I do not accept this submission. Indeed:

    Although the merits of a substantive application are only one factor relevant to whether exceptional circumstances justify the making of that application out of time, it is a mandatory factor for consideration.

    While the FWC had discretion as to the weight to be afforded to that factor, the FWC was required to give it meaningful consideration.

    Against that background, I am unable to identify how the FWC’s self-evident observation that Mr Cokic had an “apparent case”, to which Tronox had an “apparent defence”, amounted to any meaningful consideration of the merits of Mr Cokic’s substantive application for the purposes of s 394 of the FW Act.

62    In the circumstances of this case, and contrary to the requirement of s 394(3) of the FW Act, the FWC did not “take into account” the merits of Mr Cokic’s substantive application. In circumstances where the merits of the substantive application were a mandatory consideration, the FWC’s failure to take into account the merits plainly constituted an error for the purposes of s 5(2)(b) of the ADJR Act, and an error of law for the purposes of s 39B of the Judiciary Act: see in particular Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [15].

63    For that reason, the FWC Decision should be quashed.

The Full Bench Decision

64    Section 604(1) of the FW Act permits a person who is aggrieved by a decision of the FWC to appeal the decision, with the permission of the Full Bench.

65    The Full Bench, in considering Mr Cokic’s application for permission to appeal, relevantly noted in its own decision:

[6]    … Neither the merits of the application, nor the questions of prejudice to the respondent or the consideration of fairness, carried significant weight in the Commissioner’s overall assessment.

66    As noted earlier in these reasons and set out at [11]-[14] of the Full Bench Decision, s 400(1) of the FW Act specifies that the FWC must not grant permission to appeal unless the FWC considers that “it is in the public interest to do so.”

67    The principles relevant to s 400(1) were set out as follows in Knowles v BlueScope Steel Limited [2021] FCAFC 32; (2021) 284 FCR 118 at [23]-[24]:

23.    Section 400(1) and the prohibition against granting permission unless “it is in the public interest to do so” has been the subject of considerable judicial observation: e.g., Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, (2011) 192 FCR 78. The opinion or state of satisfaction as to a matter being “in the public interest” is “a jurisdictional fact or criterion to be satisfied before an appeal is heard and orders made on the appeal”: Australian Postal Corporation v D’Rozario [2014] FCAFC 89 at [14], [2014] FCAFC 89; (2014) 222 FCR 303 at 309 (“D’Rozario”) per Besanko J … In respect to one of the respondents in D’Rozario, the Full Bench had granted permission to appeal without considering whether it was in the public interest to do so. That was held to be a jurisdictional error: [2014] FCAFC 89 at [26] per Besanko J; at [81] to [83] per Jessup J; at [127] per Bromberg J, (2014) 222 FCR at 312, at 327 to 328, and at 335 …

24.    … Her Honour subsequently concluded in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165, (2014) 226 FCR 302 at 308 to 309:

No jurisdictional error or error of law on the face of the record

[31]     The Full Bench was precluded from entertaining the appeal unless it granted permission to appeal and to do that it had to be satisfied that it was in the public interest to do so. Its satisfaction about the issue was therefore a statutory precondition to the grant of permission. But as the Full Court of the ACT Supreme Court recently observed, it is not always a simple matter to decide whether a statutory precondition is a jurisdictional fact: Director of Public Prosecutions (ACT) v Martin [2014] ACTSC 104; (2014) 9 ACTLR 1 at [255] …

…

[33]     As Buchanan J said in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [44] the decision as to whether it is in the public interest to grant permission to appeal plainly involves assessment and value judgments on the part of the Full Bench. …

[34]     That is the position here. The existence of the public interest in granting permission to appeal is not a jurisdictional fact to be determined to the satisfaction of this Court. So much was found by the Full Court in Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [8] (Besanko J); [47] (Jessup J) and at [95]–[104] (Bromberg J). As Perram J noted in Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65; (2012) 202 FCR 200 at [147], citing Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, where the task reposed in a decision-maker:

… is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision-maker would have power to make its own determination of that matter.

…

[36]     Applying those principles in this case, it is highly unlikely that Parliament would have intended that a court engaged in judicial review should decide whether it is, in fact, in the public interest to grant permission for leave to appeal to the Commission. Neither is there any other basis upon which the Court can interfere …

Dowsett and Tracey JJ agreed with Katzmann J. See also: Pal v Commonwealth of Australia [2020] FCA 1483 at [59] per Anderson J.

68    In the recent decision of this Court in Liebenberg v IP Australia [2026] FCA 190, Stellios J summarised principles relevant to consideration by the Federal Court of decisions of the Full Bench concerning applications for permission to appeal, in the following terms:

39.    Accordingly, the approach to be applied in this review proceeding is to “begin with an examination of the decision of the Full Bench” (Dafallah at [54]). It is not appropriate to engage in “a fresh and detailed consideration” of the Primary Decision “unless and until it appears that [the Full Bench’s] decision is affected by jurisdictional error” (Dafallah at [54]), or unless a compelling reason otherwise exists.

40.    In addressing the question of whether the Full Bench Decision was affected by jurisdictional error, it is important to appreciate seven points of principle about the Full Bench’s jurisdiction and the conditions upon its exercise.

41.    First, s 400 of the FW Act operates to condition the power of the Full Bench to give leave under s 604(1): Dafallah at [28]; Gregory v Qantas (2016) 241 FCR 72; [2016] FCAFC 7 at [44]–[45] (Buchanan J, with Bromberg J (at [82]) and Rangiah J (at [88]) agreeing). Accordingly, the focus of the analysis of whether there is jurisdictional error must be on the condition to be established under s 400(1) for permission to appeal to be given. That is, the Full Bench must not grant permission unless it “considers that it is in the public interest to do so”.

42.    Secondly, as Buchanan J said in Lawler at [34] and [43] (Marshall J (at [1]) and Cowdroy J (at [2]) agreeing), the public interest test is a “stringent” one.

43.    Thirdly, the assessment of whether the “public interest” condition has been satisfied “involves a broad evaluative judgment”: Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [78] (Siopis, Collier and Katzmann JJ); Lawler at [44]; Gregory at [53]. As Buchanan J said in Gregory (at [55]):

assessment of what is in the public interest, so far as it concerns matters coming before the FWC, and the assessment of when the public interest requires a grant of permission to appeal in an unfair dismissal case, is primarily a matter for the Full Bench, unless it pays regard to some matter extraneous to its task or to that evaluation, or fails to pay attention to relevant matters or misunderstands the nature of the examination required.

44.    Fourthly, as the Full Court said in MTGI Trust, “an application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal” (at [82]) (see also Hancock at [52]; Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46 at [9]–[10] (Flick J)).

45.    Fifthly, in exercising its appellate jurisdiction, the Full Bench conducts its appeal by way of rehearing: Helensburgh Coal Pty Ltd v Bartley (2025) 99 ALJR 1185; [2025] HCA 29 at [53] (Gageler CJ, Gordon and Beech-Jones JJ); Coal and Allied Operations at [14], [17] (Gleeson CJ, Gaudron and Hayne JJ). It does not engage in a de novo review: Coal and Allied Operations at [75] (Kirby J); Dafallah J at [30]; Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178; [2013] FCAFC 157 at [14] (Dowsett, Flick and Griffiths JJ). Its “function or ‘role’ on appeal [is] to determine whether there was an error on the part of” the primary decision-maker: Helensburgh Coal at [53]; see also Coal and Allied Operations at [14], [17].

46.    In determining whether the Full Bench has fallen into jurisdictional error when exercising its power under s 400(1) to grant permission to appeal, the scope of the Full Bench’s review jurisdiction must be kept in mind.

47.    Sixthly, as Gageler CJ, Gordon and Beech-Jones JJ said in Helensburgh Coal at [52], jurisdictional error would only arise if the Full Bench, when exercising its review jurisdiction, “had misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question required of it, or misunderstood the nature of the opinion which it was required to form” (citing Coal and Allied Operations at [31]).

48.    Identifying the wrong error, or an identification of error in the wrong way, would not be a jurisdictional error on the part of the Full Bench; it would be an error within jurisdiction: Helensburgh Coal at [55]. Furthermore, if a Full Bench is incorrect in its conclusion that there was or was not an error by the primary decision-maker, that is an error made within jurisdiction (Coal and Allied Operations (at [32]), at least in the absence of legal unreasonableness on the part of the Full Bench: see Helensburgh Coal v Bartley (2024) 302 FCR 589; [2024] FCAFC 45 at [73] (Katzmann and Snaden JJ).

49.    Similar principles apply to the review of an exercise of power under s 400(1) to grant permission to appeal. As a Full Court said in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138; [2016] FCAFC 169 at [48]:

The question of the public interest is a broad consideration. Unless it can be shown that the Full Bench in the exercise of its power to grant permission to appeal misunderstood the nature of its jurisdiction, or somehow misconceived its duty, then, in accordance with the principles of jurisdictional error established in such cases as Coal and Allied Operations Pty Ltd ... and [R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation [1981] HCA 33; (1981) 147 CLR 471], any error made in relation to a permission decision will be considered an error within jurisdiction. See also Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union [2015] FCAFC 105; (2015) 234 FCR 405 at [58]–[69].

50.    Similarly, in Lawler, Buchanan J said (at [43]):

Provided the Full Bench did not misunderstand its powers and functions in some respect relevant to the present matter, the evaluation of the matters relevant to whether permission to appeal should be given was an issue committed to the Full Bench by the Act. It is not a matter for this Court, whose role in a case such as the present is limited to examining whether jurisdictional error was committed.

51.    See also Mwango v Fair Work Commission [2019] FCA 1274 at [43] (Thawley J).

52.    Seventhly, given that a Full Bench’s jurisdiction on appeal is to review for appealable error, whether there is an arguable case for appealable error is an important (if not essential) ingredient in considering the public interest test in s 400(1): see Hancock at [57].

69    As observed in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; (2014) 226 FCR 302, 308-309, this Court should not turn its mind to the specific criteria relevant to the “public interest” test which the Full Bench is required to apply in a particular case.

70    Nonetheless, this Court may find jurisdictional error in a decision of the Full Bench of the FWC to grant (or not grant) permission to appeal: see for example Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [14]. Circumstances where this Court may find such jurisdictional error were set out by Stellios J in Liebenberg at [47]. Further as Meagher J observed in Hancock v DP World Pty Ltd [2024] FCA 116 – citing the earlier decision in Dafallah v Fair Work Commission [2014] FCA 328; (2014) 225 FCR 559:

45.    … It is clear that Dafallah does not operate so as to prevent the Court from issuing relief against a primary decision where the Full Bench refuses permission to appeal …

71    In its decision in the present case, the Full Bench addressed principles concerning permission to appeal, noting that an arguable case of appealable error may warrant the grant of permission to appeal. The Full Bench considered Mr Cokic’s grounds, and concluded:

[21]    Mr Cokic’s application for an extension of time was determined on the basis of its own particular facts. The appeal does not raise any issue of law or principle that might have a wider application. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.

72    In this case, it cannot be said that the Full Bench misconceived its role or duty, or misunderstood the nature of its jurisdiction. However, in considering the public interest and whether to permit Mr Cokic to appeal from the FWC Decision, the Full Bench failed to identify that the FWC Decision did not take into account a mandatory consideration for the purposes of s 394(3)(e) of the FW Act. The simple observation by the Full Bench (at [6]) to the effect that the FWC had not accorded the merits of the substantive application “significant weight” was an inadequate engagement by the Full Bench with the question of whether it was in the public interest for Mr Cokic to be permitted to appeal the FWC Decision. This is particularly so where proper engagement with the merits of a substantive application made out of time is a mandatory consideration for the FWC in all such cases under s 394(2)(b) of the FW Act.

73    In this case, the failure of the Full Bench, in considering the application for permission to appeal, to identify and address the obvious omission of any meaningful consideration by the FWC of the merits of Mr Cokic’s substantive application (which was plain on the face of the FWC Decision) meant, that the Full Bench failed to apply itself to a question required of it by s 400(1) of the FW Act.

74    For this reason, the Full Bench erred in not allowing Mr Cokic permission to appeal the FWC’s Decision, for the purposes of s 5(2)(b) of the ADJR Act and s 39B of the Judiciary Act.

CONCLUSION

75    I am satisfied that the decisions of both the FWC and the Full Bench should be quashed. I have formed this view, not on the basis of the grounds pleaded by Mr Cokic, but by reference to the failure of the FWC to take into account a mandatory consideration, being s 394(3)(e) of the FW Act, and the failure of the Full Bench to grant permission to appeal to Mr Cokic by reference to that failure. Mr Cokic has been a litigant in person at all relevant times in the course of the proceedings, with limited ability to articulate proper grounds for his judicial review application. I am satisfied that, at the hearing, Tronox was put on notice of my concerns regarding the application of s 394(3)(e) of the FW Act in both decisions. Tronox was given the opportunity to make written submissions addressing those concerns and did so. Tronox further stated at the hearing that it was content for the matter to subsequently be determined on the papers.

76    Mr Cokic has sought a number of orders, referable to s 16(1) of the ADJR Act and/or s 39B of the Judiciary Act. In relation to those proposed orders I make the following observations.

77    First, for the reasons that I have given, Mr Cokic is entitled to an order pursuant to s 16(1)(a) of the ADJR Act or s 39B of the Judiciary Act that the decisions of the FWC and the Full Bench were made in error. Those decisions are to be set aside.

78    Second, Mr Cokic’s substantive application is to be remitted to the FWC, for determination according to law.

79    Third, I note that Mr Cokic has sought an order pursuant to s 16(1)(a) of the ADJR Act, that Commissioner Schneider, Deputy President Millhouse, Commissioner Crawford and Commissioner Sloan are not to preside over matters involving him. No basis has been advanced for any such order, including bias (actual or apprehended). I do not consider an order in such terms to be appropriate.

80    Fourth, Mr Cokic is a litigant in person. As I have already noted, the material before the Court indicates that he appeared both before the FWC and the Full Bench as a litigant in person. He appeared in person in the proceeding before me. He has incurred no legal costs supporting a costs order: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [110].

81    In any event, the present proceedings are under the FW Act in respect of which the power of the Court to make a costs order is limited to, inter alia, circumstances where the Court is satisfied that a party’s unreasonable act or omission has caused the other party to incur costs (s 570(2)(b) FW Act). Even if Mr Cokic had incurred any legal costs supporting a costs order in his favour, in the present circumstances there is no material before me supporting any finding of an unreasonable act or omission on the part of Tronox within the meaning of s 570(2)(b) of the FW Act, such as to warrant any costs order against Tronox.

82    Finally, Mr Cokic has sought that further material, namely two affidavits dated 21 July 2026 and a document headed “Statement of Material Facts”, be accepted for filing in this proceeding. In the circumstances however I am satisfied that it is unnecessary for me to have regard to any such further material, and I refuse his application for further material to be filed.

Associate:

Dated:    31 July 2026