All Australian Training Pty Ltd and Australian Skills Quality Authority

[2018] AATA 3663

All Australian Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 3663 (28 September 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4627

Re:All Australian Training Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:28 September 2018

Place:Sydney

The application for an extension of time is refused.

............................[sgd]............................................

Chris Puplick AM, Senior Member

CATCHWORDS

EXTENSION OF TIME – whether it is reasonable in all the circumstances to grant an extension of time –  principles to be applied – Hunter Valley Developments Pty v Cohen –  explanation for delay – prejudice to respondent and other parties – merits of substantive application – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 29

Fit and Proper Person Requirements 2011

National Vocational Education and Training Regulator Act 2011

Standards for Registered Training Organisations 2015

CASES

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd  [1979] 24 ALR 307

Comcare v A’Hearn (1993) 45 FCR 441

Crick and Prosegur Australian Pty Ltd [2016] AATA 313 at [14]

Jamal v Secretary, Department of Social Services [2017] FCA 916

Hunter Valley Developments Pty Ltd v Cohen  (1984) 3 FCR 344

Hillman v Australian Postal Corporation [2017] AATA 1411

O’Gorman and Comcare (Compensation) [2017] AATA 2192

Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142

REASONS FOR DECISION

28 September 2018

1. This is an application by All Australian Training Pty Ltd (“the Applicant”) to be granted an extension of time (EOT) under section 29(7) of the Administrative Appeals Tribunal Act 1975 in order to lodge an application for a stay of a decision by the Australian Skills Quality Authority (ASQA) made on 28 June 2018 to cancel the Applicant’s registration as a Registered Training Organisation (RTO) under the provisions of the National Vocational Education Training Regulation Act 2011 (the NVR Act).

2. It should be noted at the outset that, as of the date of hearing, the Applicant’s registration has been cancelled and it had ceased to operate; and further that the application was lodged on 29 August 2018 with a request for an extension of time to that date rather than to a prospective date. The effect of this was that by the time of the hearing, the requested date for an EOT had already elapsed.

3. There is some further confusion evident in the Applicant’s Submission[1] for an EOT which focusses upon the matters which the Tribunal would need to take into account were it hearing a stay application, whereas the matter before the Tribunal is not a stay application, but an EOT application which, if granted, would allow a stay application to be enlivened.

   [1] Applicant’s Submission in Relation to Extension of Time (dated 26 September 2018).

4. Leaving those concerns aside, the Tribunal nevertheless notes the following:

   (a)the Applicant was advised on 24 April 2018 that ASQA was giving consideration to cancellation of its registration as an RTO under the NVR Act;

   (b)the Applicant responded to ASQA on 2 May 2018 addressing the concerns outlined in ASQA’s letter of 24 April 2018, and ASQA considered that response; and

   (c)on 28 June 2018 ASQA gave formal notice affirming the cancellation decision and indicated that the Applicant had until 28 July 2018 to lodge a reconsideration application with it. The same advice provided information to the effect that any separate appeal to this Tribunal needed to be lodged by 26 July 2018.

5. The Applicant pleads that ASQA had agreed to undertake an internal review of the decision and goes on to assert that no decision regarding cancellation should have been made until that internal review process was complete.

6. ASQA responds to the effect that the Applicant failed to provide it with the necessary documentation and particularly, documentation in the prescribed form, to enliven its reconsideration processes and, as a result it proceeded with the cancellation decision, made on 28 June 2018 and effective as from 2 August 2018.[2]

   [2] The chronology which follows is taken from the Respondent’s Submission Opposing Application for Extension of Time (dated 25 September 2018). This chronology is acknowledged and accepted by the Applicant in their Submission (at paragraph 12).

7. Section 200 (3)(a) of the NVR Act states that an application for a review of a decision must be “in a form approved in writing by the National VET Regulator”. As such, ASQA claims that the Applicant’s request, because not submitted on the exact form as required (which was available online) was not validly made.

8. The Tribunal notes that ASQA is correct in this regard as a matter of law, but that to rely on this point to the exclusion of any other considerations of justice, fairness and good government,  does not reflect well  upon it.

9. The Applicant informed ASQA on 6 August that it was unaware of the need to submit a review form in accordance with the provisions of the NVR but ASQA formalised its position by advising the Applicant on 10 August 2018 of its refusal to accept a late reconsideration application.

10. ASQA asserts that there was no impediment to the Applicant in being able to comply with mandated time limits for applications to be lodged either with itself or with this Tribunal and that there was no impediment on the Applicant being able to submit its material to ASQA on the form proscribed under the NVR legislation.

11. Again, leaving much of that argument to one side for the moment, the Tribunal considers it appropriate to consider how this application comports with the judicial authority on how EOT applications should be assessed.

    EXTENSIONS OF TIME : ISSUES FOR CONSIDERATION

12. There is no automatic right for any applicant to receive an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975 and indeed these are to be granted only where the Tribunal “is satisfied that it is reasonable in all the circumstances to do so.”

13. The importance of there being meaningful time limits established within the framework of Australian public administration was made pellucidly clear by the High Court.

14. McHugh J in Brisbane South Regional Health Authority v Taylor[3] gave four reasons why such limitations are an important part of the legal/administrative process. He noted that:

    First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

    The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

    [3] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [552]-[553]. The Respondent in the High Court case is not related to the Applicant in the present proceedings.

15. His Honour also noted that:

    An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[4]

    [4] Ibid at [551].

16. It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[5] should be taken as the guide by this Tribunal in determining EOT matters.

    [5] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

17. That list provides as follows:

    ·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;

    ·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    ·any prejudice to the respondent caused by the delay;

    ·whether any  others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    ·the merits of the substantial application; and

    ·“considerations of fairness as between the applicant and other persons” in a similar position.

18. Wilcox J did, however, warn that:

    Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period”….. is not to be ignored.” (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition 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. (Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[6]

    [6] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348].

19. The Tribunal in Hillman v Australian Postal Corporation[7] set out four tests which it said should be met in deciding whether to grant a review of a decision where the application was made out of time. Those four grounds, which are in many ways merely a refinement of some of the principles laid down in Hunter Valley, are: delay; prejudice; merits and fairness.

    [7] [2017] AATA 1411

20. Equally, this Tribunal has noted that the check-list items in Hunter Valley “are not be applied mechanically” and that “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given.”[8]

    [8] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.

21. It is also important to note that in making a decision about what is reasonable in all the circumstances, the Tribunal must consider all of the circumstances of each individual case.[9]

    APPLICATION OF THE HUNTER VALLEY PRINCIPLES

    [9] Crick and Prosegur Australian Pty Ltd [2016] AATA 313 at [14].

22. The Tribunal believe that there are only three of the Hunter Valley principles which need to be considered in detail: reasons for the delay; prejudice to the Respondent and the substantial merits of the claim.

23. In relation to the others: the Tribunal detects no prejudice to the interests of the general public or other parties; no considerations of fairness vis-à-vis other persons in a similar position and it is clear that in coming forward as it has, the Applicant has not rested on his rights.

    Reasons for Delay

24. The delay in question is a period of 34 days. The Applicant has not provided the Tribunal with any “acceptable explanation” for this delay. While there is a detailed explanation from the Applicant in relation to the delay and confusion (in relation to the prescribed form) in making a late submission to ASQA for reconsideration[10], there is no explanation for the delay in referral of the matter to the Tribunal.

    [10] Applicant’s Submission in Relation to Extension of Time (dated 26 September 2018) at Section D.

25. While, despite the guidance in Hunter Valley, it is not an absolute prerequisite for some explanation of delay to be given, it is generally expected, and common sense would suggest that it is necessary.

    “While an absence of an adequate explanation does not preclude an extension of time being granted under s.44 (sic) of the AAT Act, an explanation is normally to be expected.”[11]

    [11] Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [33].

26. Even in its submission, wrongly directed to arguments relevant to a potential stay application rather than an EOT application, this matter is not addressed and so the Tribunal has no guidance as to why there was a failure to seek its intervention within the time limits prescribed by legislation. It does however accept the evidence from ASQA (uncontested by the Applicant) that the Applicant has a poor record of compliance with adhering to relatively simple and straightforward time requirements in its dealings with ASQA.[12]

    [12] Respondent’s Submission Opposing Application for Extension of Time (dated 25 September 2018) paragraph (43)

    Prejudice to Respondent

27. On this and other occasions, ASQA has argued that to grant extensions of time causes prejudice to the Respondent because it denies it the right of finality; it causes a diversion of resources back into matters regarded as settled; it results in other applications which have been made in time being somehow shuffled back in the queue for attention and imposes additional burdens on a Regulator which is facing great pressure to discharge its numerous responsibilities of supervision and regulation of a large number of regulated organisations.

28. The Tribunal understands the frustration expressed by ASQA in relation the way in which it is able to manage its undoubtedly significant workload, but does not find this line of argument persuasive taken on its own. No doubt any Respondent would make much the same argument, but the whole purpose if the Administrative Appeals Tribunal Act is to act as a facilitator of the processes of “good government” and this of necessity implies that sometimes there are reasons of public policy which must overbear the arguments of administrative inconvenience.

    “In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are it he view of the Tribunal not acceptable when tested against the requirements of good government.”[13]

    [13] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307 at [335] per Bowen CJ, Smithers and Deane JJ.

    Substantive Merits

29. It is expressly not the responsibility of the Tribunal at this stage to determine every aspect of the claims made in support of and against the ASQA cancellation determination.

30. However as noted in Hunter Valley the Tribunal needs to consider whether or not the application in question has genuine merit or prospect of success. As Perry J observed in Jamal, “it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospect of success.”[14] This principle would apply equally to applications for a stay as to applications for a full hearing on the merits.

    [14] Jamal v Secretary, Department of Social Services [2017] FCA 916 at [12].

31. The evidence advanced by ASQA indicates that, as part of both its general supervisory activities and resulting from an aborted site inspection of the listed training facilities which were found to be unoccupied and displaying a “for lease” sign on 8 February 2018:

    (a)The Applicant appears to lack the training facilities required to deliver some of the products which it offers by way of training courses;

    (b)The Applicant has provided false and misleading information to prospective students about which courses it is authorised to offer, and

    (c)Past and present senior employees of the RTO, including those designated as, or purporting to be its Chief Executive officer have, on more than one occasion made false declarations to ASQA as the national Regulator.

32. The Applicant has provided material in which it seeks to refute a number of these allegations, particularly in relation to statements from its previous CEO.[15]

    [15] Applicant’s Submission in Relation to Extension of Time (dated 26 September 2018) pages (38-42).

33. It is not the role of the Tribunal to determine one way or another, the matters which are in contention but rather to assess whether, prima facie, the claims of the Applicant contain sufficient merit to have a reasonable prospect of persuading some subsequent decision-maker to set aside the original ASQA decision. In this regard it notes the detailed comments by ASQA in relation the failures of the Applicant to take necessary and acceptable remediation steps in relation to matters of non-compliance brought previously to its attention.[16]

    [16] Respondent’s Submission Opposing Application for Extension of Time (dated 25 September 2018) at paragraph (44).

34. Regard must be had both to the Standards for Registered Training Organisations 2015 (the Standards) and the Fit and Proper Person Requirements 2011 (FPPR) which, together with the NVR Act are integral parts of the regulatory system governing the VET sector.

35. It seems to the Tribunal that the case made out by ASQA that the Applicant fails to comply with clauses 1.3, 4.1 and 8.1 of the Standards and has demonstrated inadequate steps/plans for rectification and that there are genuine issues of compliance with the FPPR is manifestly stronger than any contradictory material put before the Tribunal.

36. On this basis the Tribunal would have to conclude that while the Applicant’s case is not totally without merit, its prospect of success would seem extremely limited.

    Conclusion

37. Again it should be stressed that a determination based alone on assessment of the substantial merits of the application is insufficient to deny the Applicant any chance of success. However, when combined with the lack of a substantive case as to why the application was lodged well out of time it seems to the Tribunal that none of the essential elements of the Hunter Valley criteria is made out with sufficient strength to be persuasive that an EOT should be granted.

    DECISION

38. The application for an extension of time is refused.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of

.............................[sgd]...........................................

Associate

Dated: 28 September 2018

Date(s) of hearing:	26 September 2018
Solicitors for the Applicant:	Mr P Doukas (by phone)
Solicitors for the Respondent:	Ms L McDermott (by phone)