Australian Vocational Driving Institute Pty Ltd and Australian Skills Quality Authority
[2014] AATA 892
•20 November 2014
[2014] AATA 892
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5697
Re
Australian Vocational Driving Institute Pty Ltd
APPLICANT
And
Australian Skills Quality Authority
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 20 November 2014 Date of written reasons 3 December 2014 Place Brisbane 1. The applicant’s application for an order staying the operation of implementation of this review is adjourned until 9:15am on 27 November 2014;
2.The applicant’s application for an extension of time to lodge this application for review of a decision is adjourned until 9:15am on 27 November 2014;
3.The applicant is to lodge and serve any evidence upon which he intends to rely in relation to his stay application by 3:00pm on 26 November 2014; and
4.The Tribunal refuses the applicant’s oral application under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) for an order staying or otherwise affecting the operation or implementation of this review until 27 November 2014.
...........................[Sgd]..........................................
Deputy President P E Hack SC
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – application for stay – no evidence provided by applicant – applications adjourned until 27 November 2014 to allow applicant to put on evidence – interim stay refused
LEGISLATION
National Vocational Education and Training Regulator Act 2011 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114; [2009] AATA 798
REASONS FOR DECISION
Deputy President P E Hack SC
3 December 2014
On 24 September 2014, the applicant was notified by the respondent that the applicant’s registration, pursuant to the National Vocational Education and Training Regulator Act 2011 (Cth), would be cancelled with effect from 24 October 2014. The letter went on to advise, in terms that the applicant says were confusing, that the applicant could seek a reconsideration of that decision by the respondent, it could seek a review by this Tribunal following a reconsideration, or it could seek a review by the Tribunal. Very shortly before the due date for cancellation, on 24 October 2014, the applicant lodged an application for reconsideration accompanied by an application for a stay of the implementation of the decision whilst that reconsideration was being considered.
No additional material was provided and late in the afternoon on 28 October 2014, that is, the date before cancellation was to take effect, the respondent informed the applicant that the application for a stay was refused and that it would commence processing their reconsideration application.
These proceedings were commenced in the Tribunal on 29 October 2014.
Because the application was made outside the period of 28 days after the applicant was given notice of the decision, the applicant requires an extension of time within which it may bring the application. It applied as well for a stay of the further implementation of the decision pending the outcome of the proceedings. The application for an extension of time and the application for the stay were originally listed on 10 November 2014, however they were then adjourned at the request of the applicant’s representatives to today. The respondent lodged detailed submissions in the Tribunal yesterday, but no material has been lodged on the part of the applicant.
It is a considerable part of the applicant’s case for an extension of time and is to be propounded, I infer, as an explanation for the delay in bringing the application that the natural person behind the applicant, Mr Hassan, was confused by the form of the decision letter as to the remedies available to him and thus did not appreciate that he ought to have brought this application within time. It is not immediately apparent to me how that fits with the form of words used by him in his application for an extension of time, but those are matters for another day. It has become obvious that the absence of material is such that no proper consideration can be given to the application and the parties are agreed that it ought to be adjourned until 9:15am on 27 November 2014.
The question that arises is whether between now and then I should grant a stay of the further implementation of the decision. It is not clear to me that I do have jurisdiction to grant a stay where there is no application on foot, however I am prepared to assume for the purposes of today that I do have jurisdiction. I do not propose to grant the stay, essentially for two reasons. I infer that the cancellation has created hardship to the applicant, its employees, its shareholders and, presumably, to its students. No doubt that hardship will be explained in greater detail when the applicant files material in advance of the next hearing. But the fact is that the registration has been cancelled since
29 October 2014 and, as a matter of law, the applicant is prevented from operating. To grant the stay with the prospect that that stay might only last for a week would be to simply create false hopes in the mind of the applicant. The other matter that I bear in mind is public interest. The case to which the respondent’s submissions drew my attention is Re Scott and Australian Securities and Investments Commission[1] where Justice Downes, sitting as the President of the Tribunal, stressed the importance of taking into account the public interest in matters of this nature where a regulator has made an adverse decision and as His Honour said, all other things being equal, the public is entitled to the protection of such a decision. The material lodged by the regulator, including the decision letters, demonstrates a concerning failure on the applicant’s part to provide information to the regulator.
[1] (2009) 51 AAR 114; [2009] AATA 798.
In those circumstances, and given that the matter has been on foot for three weeks without any material being lodged by the applicant, I am not persuaded that it is appropriate to grant a stay were I to be satisfied that I did have jurisdiction to do so.
I will, though, consider a stay together with the extension of time application on the resumed hearing of this matter at 9:15am on 27 November 2014.
I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ............................[Sgd].........................................
Associate
Dated 3 December 2014
Date of hearing 20 November 2014 Counsel for the Applicant Ms C. Currie Solicitors for the Applicant Slater & Gordon Lawyers Solicitors for the Respondent Mr J. Pritchard, Australian Skills Quality Authority
0
1
0