Brighton Pacific Pty Ltd and Australian Skills Quality Authority - [2019] AATA 4977

Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 4977 (4 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0921
Re:Brighton Pacific Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:4 October 2019
Date of written reasons: 10 October 2019
Place:Brisbane

The Tribunal orders that the Order dated 18 April 2019 made pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) is preserved.
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Deputy President Dr P McDermott RFD
Catchwords
STAY –Variation of stay order under section 41(3) – Stay application be varied due to the operation of 43(5C) – Australian Skills Quality Authority (ASQA) – Restriction on commencement of enrolled students in an institution - Breach of a stay order – Stay is preserved
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Students Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011
Cases
Zivanovic v Australian Securities Investments Commission [2017] FCA 1633
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
Written Reasons: 10 October 2019
Decision Published: 27 November 2019
INTRODUCTION

On 4 October 2019, I heard an urgent application from the Australian Skills Quality Authority (“ASQA”) where ASQA advised that it intends to file an appeal against the decision made on 19 September 2019 by a Deputy President of the Tribunal. ASQA has made a request under s 41(3) of the AAT Act for the Tribunal to make an order varying the stay order that I granted on 18 April 2019. Prior to my making of the stay order on I ensured that my Associate sought submissions from both parties as to the appropriate wording of the stay order which was granted by consent of the parties.
SUBMISSIONS
The respondent submits that the stay should be varied because of the operation of
s 43(5C) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) which provides that unless the Tribunal otherwise orders the operation of the decision under review is stayed until the end of the period within which a party to the proceeding may appeal the decision to the Federal Court of Australia under s 44(1) of the AAT Act.
During the hearing ASQA raised concerns that Brighton Pacific Pty Ltd (“Brighton Pacific”) had failed to comply with certain provisions of the stay order.
There was a submission by ASQA that Brighton Pacific did not comply with clause 2(g) of the stay order which effectively required Brighton Pacific to provide validation reports within 8 weeks of the making of the stay order. There was no issue that clause 2(g) should have been complied with by 14 June 2019. Brighton Pacific stated that the validation report was put into evidence in the hearing on 27 June 2019. I have formed the view that any breach of clause 2(g) is not material for the determination of this application to vary the stay order. During the hearing I pointed out that ASQA did not promptly bring to the Tribunal’s attention any such non-compliance with clause 2(g).
ASQA has also submitted that Brighton Pacific had not published the notice as required under clause 2(d) of the stay order. The terms of that Notice appear in clause 2(c) of the stay order. While ASQA was unable to locate the notice on 2 October 2019, it is clear that the notice was certainly on the website from 4 October 2019. Brighton Pacific has provided a reasonable explanation for why the notice was moved from the home page of the website, due to further notices being published onto the website. In any event, the terms of clause 2(d) do not require the notice to be placed on the home page of the website. All that is required by clause 2(d) of the stay order is that the Brighton Pacific “must prominently display” the notice. I have come to a preliminary conclusion in these interlocutory proceedings that if there was any breach of clause 2(d) it was inadvertent and was for only a short period if at all.
The main matter of concern for ASQA concerns the operation of clause 2(a) of the stay order, which provides that the applicant remains entitled to enrol students but must not permit students enrolled on or after the date of this order to commence study with the applicant before 7 October 2019. That date also appears in clause 2(e) of the stay order which provides that before 7 October 2019 student moneys cannot be withdrawn from the protected account which is maintained under s 28 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act)”.
ASQA has submitted that a basic check of the PRISMS database shows that entries have been made by Brighton Pacific in breach of clause 2(a) of the stay order. This submission is based upon the word ‘enrol’ in clause 2(a) bearing the same meaning as that expression used in the definition of ‘accepted student’ in s 5 of the ESOS Act. That definition provides that an "accepted student" of a registered provider means a student (whether within or outside Australia) who is accepted for enrolment, or enrolled, in a course provided by the provider; and who is, or will be, required to hold a student visa to undertake or continue the course.
I consider that on the ordinary construction of clause 2(a) students who were already enrolled as a student with Brighton Pacific before the date of the stay order would be able to commence study on or after 7 October 2019. I consider that the restriction on students being allowed to commence study only applies to those who enrol as a student with the provider on or after the date of the stay order. However, the terms of clause 2(a) do not operate to provide a restrictive interpretation on the meaning of ‘enrol’ to mean that the word ‘enrol’ refers only to enrolment in a particular course. If ASQA considered that this was the aim sought to be achieved then appropriate wording could have been used. I make the observation that the terms of clause 2(a) were agreed to by both parties. I also add that the very terms of clause 2(a) which provides that “the Applicant remain entitled to enrol students” does not support the submissions of ASQA that the meaning of “enrol” in the clause bears the meaning that is provided for by ASQA.
The terms of clause 2(a) restricts students from commencing study before 7 October 2019, or such later date provided by the Tribunal. ASQA sought to extend the date until
17 October 2019, which is the end of the appeal period. One reason why I do not grant the request is because if ASQA was seeking such an order they could have made an application for such an order much earlier than 4 October 2019.
CONSIDERATION
There is a dispute between the parties as to how many students are affected. The applicant said that 187 students were to commence study on 7 October 2019. In reality because 7 October 2019 is a public holiday the date on which the students would presumably commence their study is 8 October 2019. The respondent considers that 236 students will commence study on 7 October 2019. Having regard to the interests of the students I do not think it is fair to have such a disruptive event at such short notice if the request to vary the stay order was granted. I am also considering the interests of staff members of Brighton Pacific. There is force in the submission by Brighton Pacific that the staff members would suffer an inconvenience if a variation of the stay order was granted.
ASQA have informed the Tribunal that they intend to lodge an appeal to the Federal Court of Australia. However, no appeal has yet been lodged, and no grounds of appeal appear to have been formulated for the Federal Court of Australia. There is a submission made that the Tribunal in making its decision on 19 September 2019 is in jurisdictional error. However, it would not be appropriate for me to consider the validity of that submission.
I am mindful that if I have made an order for the variation of the stay order under s 41(3) of the AAT Act that order could be later varied by the Federal Court of Australia, having regard to the decision of Justice Gleeson in Zivanovic v Australian Securities Investments Commission [2017] FCA 1633.
There is some force in the argument of ASQA if the stay was varied after the lodgement of an appeal then there would be more disruption to the students who have already commenced their courses. However, that is a matter for the Federal Court of Australia to consider on that occasion once an appeal was lodged and if an application was made to vary the stay order. The Federal Court of Australia would also then have the grounds of appeal before it on that occasion.
ASQA has raised issues concerning the financial viability of Brighton Pacific. The financial viability of a provider is a matter of concern having regard to s 24 of the National Vocational Education and Training Regulator Act 2011 (“NVR Act”). Certainly there is evidence concerning a balance spreadsheet that was tendered in evidence (Exhibit D) as being a statement of assets. There was some discussion as to whether this statement was inconsistent with an affidavit lodged by the applicant (Exhibit C): however, the affidavit that was lodged on behalf of the applicant dealt with ‘forecast cash’ available which is quite different from a statement of assets. The concerns as to Brighton Pacific’s financial viability are certainly relevant concerning clause 2(e) of the order. However, if students are permitted to commence study on 7 October 2019 it is only reasonable that funds paid for courses be available from the protected account.
ASQA have been aware since 18 April 2019, that the order allowed students to commence their studies on or after 7 October 2019. In my respectful opinion if ASQA thought it desirable for the stay order to be varied they could have made an earlier application to the Tribunal. This is also a matter that could have been raised before the learned Deputy President in final submissions before the decision was made on
19 September 2019 as being a consequential order that should be made to preserve the status quo.
ASQA in written submissions dated and filed on 4 October 2019, has contended that “a basic check of the PRISMS database shows that entries have been made by Brighton itself, which if correct (as they are required to be), mean that Brighton is in breach of condition 2(a)” [14.4]. However, the submissions do not outline how Brighton Pacific is in breach of clause 2(a). In these circumstances it would not in my opinion be fair in these interlocutory proceedings to come to any conclusions as to whether Brighton Pacific are in breach of clause 2(a). This clause is complicated by the fact that some of the students were already enrolled with a related provider. Brighton Pacific have quite properly informed the Tribunal that the applicant did not appreciate that the stay had operation after 19 September 2019.
One matter that was raised by Brighton Pacific was that ASQA has not made an undertaking as to damages: however, I accept the submission of ASQA that the application before me does not concern the exercise of the equity jurisdiction.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 27 November 2019

Date of Interlocutory hearing: 4 October 2019

Counsel for the Applicant:

Solicitors for the Applicant:

Ms M Hindman QC

Mr T Fletcher

Minter Ellison

Counsel for the Respondent:

Solicitors for the Respondent:

Ms S Wright

Ms J MacDonald

Australian Government Solicitor