Coombs and Secretary, Department of Education and Training; Sooaemalelagi and Secretary, Department of Education and Training

[2019] AATA 4954

Coombs and Secretary, Department of Education and Training; Sooaemalelagi and Secretary, Department of Education and Training [2019] AATA 4954 (19 November 2019)

Filenumber:     2016/2847 and 2016/6186

Division:GENERAL DIVISION

File Number(s):      2016/2847

Re:Nigel Coombs

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

AndBruce Hartwig Flying School Pty Ltd

OTHER PARTY

File Number(s):      2016/6186

Re:Fanaafi Sooaemalelagi

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

AndBruce Hartwig Flying School Pty Ltd

OTHER PARTY

DECISION

Tribunal:Deputy President P Britten-Jones

Date:19 November 2019

Place:Adelaide

In the matter of 2016/2847 the Tribunal sets aside the decision made on 28 May 2016 with respect to Mr Nigel Coombs and substitutes a decision that Bruce Hartwig Flying School, on behalf of the Secretary of the Department of Education and Training, re-credits Mr Coombs’ FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that he received for the Advanced Diploma of Aviation 15725SA.

In the matter of 2016/6186 the Tribunal sets aside the decision made on 13 December 2016 with respect to Ms. Fanaafi Sooaemalelagi and substitutes a decision that Bruce Hartwig Flying School, on behalf of the Secretary of the Department of Education and Training, re-credits Ms Sooaemalelagi’s FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that she received for the Advanced Diploma of Aviation 15725SA.

...........................[sgnd]................................

Deputy President P Britten-Jones

Catchwords

HIGHER EDUCATION ––  VET FEE-HELP Assistance Scheme ––  application for remission of VET FEE-HELP debt  –– Advanced Diploma of Aviation –– special circumstances –– whether circumstances were beyond the Applicants’ control ––  whether circumstances made it impracticable to complete the requirements for the unit during the required time ––  meaning of ‘beyond control’  –– meaning of ‘impracticable to complete’  ––  where necessary to determine ‘the requirements for the unit’ ––  where circumstances related to poor delivery of the course and management by the course provider ––  where circumstances beyond the Applicants’ control and made it impracticable for the Applicants to complete the course requirements in time –– decisions under review set aside and substituted with decisions that the Applicants’ VET FEE-HELP debt be re-credited. 

Legislation

Higher Education Support Act 2003 (Cth)

Higher Education Support Amendment (Extending FEE‑HELP for VET Diploma, Advanced Diploma, Graduate Diploma and Graduate Certificate Courses) Act 2007 (Cth)

National Vocational Education and Training Regulator Act 2011 (Cth)

National Vocational Education and Training Regulator Regulations 2011 (Cth)

Family Law Act 1975 (Cth)

Cases

Adamson and Secretary, Department of Education (2015) 150 ALD 122

Angelakos and Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WASCA 86

Beadle and Director-General of Social Security (1984) 6 ALD 1

Jayne v National Coal Board[1963] 2 All ER 220

Marriage of Rohde (1984) 10 Fam LR 56

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Zabaneh and Secretary, Department of Education and Training [2016] AATA 569

Secondary Materials

Explanatory Memorandum, Higher Education Support Amendment (Extending FEE-HELP for VET Diploma and VET Advanced Diploma Courses) Bill 2007 (Cth)

Explanatory Memorandum, Higher Education Support Bill 2003 (Cth)

VET Administrative Information for Providers 2013

REASONS FOR DECISION

Deputy President P Britten-Jones

19 November 2019

1. Nigel Coombs and Fanaafi Sooaemalelagi[1] (“the Applicants”) enrolled in the Advanced Diploma of Aviation 15725SA (“the Advanced Diploma”) with the Bruce Hartwig Flying School (“the School”). They obtained financial assistance to help pay for their study but they never completed the Advanced Diploma. They applied to the School to have their debts remitted under the Higher Education Support Act 2003 (Cth) (“HESA”) on the basis that “special circumstances” applied to them. The School refused each of their applications, and internal reviews affirmed those decisions. They have applied to the Tribunal for review of those decisions.

   [1] Whilst not wishing to show any disrespect, I will refer to all persons by their surname only.

2. The applications for review were heard together because there is a significant degree of factual overlap between these students who studied the Advanced Diploma together. This has enabled the Tribunal to make many joint factual findings. Only where necessary the Tribunal makes separate factual findings because the circumstances of each applicant differed in some material respects.

3. I have structured these reasons under the following headings:

   (a)Legislative framework for financial assistance to students (paragraphs 4 to 14)

   (b)The issues for determination (paragraphs 15 to 27)

   (c)Evidence (paragraphs 28 to 153)

   (d)Some uncontroversial events during the Advanced Diploma  (paragraphs 154 to 170)

   (e)What were the requirements for the Advanced Diploma?  (paragraphs 171 to 192)

   (f)Contentions of the parties (paragraphs 193 to 194) 

   (g)The special circumstances that applied to both applicants (paragraphs 195 to 216)

   (h)Further special circumstances that applied to Sooaemalelagi (paragraphs 217 to 237)

   (i)Did the circumstances that apply to Sooaemalelagi make it impracticable for her to complete the requirements for the Advanced Diploma and were those circumstances beyond her control? (paragraphs 238 to 251)

   (j)Further special circumstances that applied to Coombs (paragraphs  252 to 271)

   (k)Did the circumstances that apply to Coombs make it impracticable for him to complete the requirements for the Advanced Diploma and were those circumstances beyond his control? (paragraphs 272 to 287)

   (l)Decision (paragraphs 288 to 292)

   LEGISLATIVE FRAMEWORK FOR FINANCIAL ASSISTANCE TO STUDENTS

4. HESA was introduced in 2003 and established a comprehensive framework for the Commonwealth funding of higher education. The Act provides financial support for higher education through financial assistance to students (usually in the form of loans).

5. In 2007, the Higher Education Support Amendment (Extending FEE‑HELP for VET Diploma, Advanced Diploma, Graduate Diploma and Graduate Certificate Courses) Act 2007 (Cth) introduced what is known as the “VET FEE-HELP Assistance Scheme”[2] which extended FEE-HELP assistance to full-fee-paying students in Diploma and Advanced Diploma courses that are accredited as VET qualifications.[3]

   [2]  The acronym ‘VET FEE-HELP’ stands for the Vocational Education and Training Fee Higher Education Loan Program.

   [3]  Explanatory Memorandum, Higher Education Support Amendment (Extending FEE-HELP for VET Diploma and VET Advanced Diploma Courses) Bill 2007 (Cth).

6. HESA Schedule 1A sets out all the provisions dealing with the VET FEE-HELP Assistance Scheme. The purpose of HESA Schedule 1A is to provide for loans to be made available to students enrolled in certain accredited vocational education and training (“VET”) courses.[4]  Part 2 of HESA Schedule 1A deals with VET FEE-HELP assistance.  It explains what a person’s FEE-HELP balance is and how it can be re-credited and in what circumstances.

   [4]   Higher Education Support Act 2003 (Cth), Schedule 1A, clause 1. Further references to clauses of an Act are references to Schedule 1A of the Higher Education Support Act 2003 unless otherwise stated.

7. Where a student applies for VET FEE-HELP assistance and it is granted, the Commonwealth pays that financial assistance directly to the VET provider so as to discharge the student’s liability to pay the VET tuition fees. Under the scheme, a student entitled to a VET FEE-HELP loan incurs a debt to the Commonwealth for each unit of study in which they are enrolled. The student is liable to repay the debt even if they do not complete the course, but only when their income exceeds a minimum income threshold.

8. The Advanced Diploma was accredited as a VET qualification. Eligible students were able to apply for VET FEE-HELP assistance. The tuition fees for the Advanced Diploma were $114,900.00. The maximum VET FEE-HELP assistance available for a student was $93,204.00. The remaining balance of $21,696.00 was to be covered by other sources, including a state provided subsidy, Skills For All, and a student contribution.

9. Payment to the VET provider occurs once the census date for the course has passed. The census date is the date by which a student may withdraw from the course without financial penalty. If a student withdraws after the census date, the student is taken to have incurred the VET FEE-HELP debt.

10. A student can seek a re-credit of the VET FEE-HELP assistance in two ways. First, if the VET provider ceases to provide the course.[5] Second, if the VET provider is satisfied that special circumstances apply to the student.[6] Only the latter option is applicable in this matter. Clause 46(2) of HESA Schedule 1A is the starting point for re-crediting a student’s VET FEE-HELP assistance. It provides:

    46 (2)A VET provider must, on the Secretary’s behalf, re-credit a person’s FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study if:

    …

    (c)the provider is satisfied that special circumstances apply to the person (see clause 48);

    [5]   Clause 51.

    [6]   Clause 46(2).

11. There is no definition of special circumstances but clause 48 provides that they will only apply if certain conditions are met:

    For the purposes of paragraph 46(2)(c), special circumstances apply to the person if and only if the VET provider receiving the application is satisfied that circumstances apply to the person that:

    (a)       are beyond the person’s control; and

    (b)do not make their full impact on the person until on or after the census date for the VET unit of study in question; and

    (c)make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook, or was to undertake, the unit.

    VET Administrative Information for Providers (November 2013)

12. The Department of Education and Training (“the Respondent”) has prepared the VET Administrative Information for Providers 2013 (“VET Information”) to help VET providers to interpret and implement requirements of VET FEE-HELP under HESA. The Respondent has instructed VET providers to read the VET Information in conjunction with HESA Schedule 1A when considering re-credit applications. I have reviewed the VET Information and consider there are no cogent reasons why the Tribunal should not follow the VET Information in VET FEE-HELP matters and, from an administrative decision making consistency perspective, there are strong reasons for applying the VET Information.[7]

    [7] For example, as in Adamson and Secretary, Department of Education (2015) 150 ALD 122 applying Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J and discussed in Zabaneh and Secretary, Department of Education and Training [2016] AATA 569.

13. The VET Information provides that the VET provider determines how to structure its courses and may elect that a course will consist of only one VET unit of study. The Advanced Diploma the subject of this case consisted of one VET unit of study undertaken as a VET course of study during an 18 month period.

14. Chapter 10.1 of the VET Information deals with special circumstances relevantly as follows:

    Special circumstances beyond a person’s control

    Circumstances could be considered beyond a person’s control if a situation occurs that a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible. This situation would generally be expected to be unusual, uncommon or abnormal.

    For example, a lack of knowledge of how VET FEE-HELP works or the requirements regarding census dates would not be considered beyond a person’s control.

    …

    Special circumstances that made it impracticable for the person to complete the VET unit of study

    The term impracticable is defined as ‘not practicable, that which cannot be put into practice with the available means’. The VET provider should keep this definition in mind when deciding whether a student’s circumstances made it impracticable for them to complete a VET unit of study.

    Circumstances that make it impracticable for the person to complete the requirements for their VET unit of study may include:

    ·medical circumstances, for example where a person’s medical condition has changed to such an extent that he or she is unable to continue studying;

    ·family/personal circumstances, for example death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;

    ·employment related circumstances, for example where a person’s employment status or arrangements have changed so the person is unable to continue their studies, and this change is beyond the person’s control; or

    ·course related circumstances, for example where the VET provider has changed the VET unit of study it had offered and the person is disadvantaged by either not being able to complete the VET unit of study, or not being given credit towards other VET units of studies or courses.

    Consideration should also be given to whether at the time the person’s special circumstances emerged it was already not practicable for the student to meet the requirements of the VET unit of study.

    A person is unable to complete the requirements for a VET unit of study, for example, if the person is unable to:

    ·undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements to meet their compulsory course requirements; or

    ·complete the required assessable work to the required standard; or

    ·sit the requirement examinations and obtain a required mark; or

    ·complete any other course requirements because of their inability to meet the above.

    THE ISSUES FOR DETERMINATION

15. For the Applicants to be successful there must be special circumstances which satisfy the three elements in clause 48 of HESA Schedule 1A. There is no issue with respect to the second element, requiring that any circumstances did not make their full impact on the person until on or after the census date, because the course related circumstances relied upon by the Applicants arose after the School changed hands on 23 April 2014 which postdates the census date for both Applicants.

    Special Circumstances

16. The term “special circumstances”, though not defined in HESA, has been extensively considered in case law such that it requires circumstances that are unusual, uncommon or exceptional[8] and there must be something that distinguishes the case from the ordinary or usual case.[9] Not only must the circumstances be special in this sense, but they must satisfy the three elements in clause 48 in order to apply for the purposes of clause 46(2).

    [8]  Beadle and Director-General of Social Security (1984) 6 ALD 1 [12].

    [9]  Angelakos and Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 [33].

    Beyond control

17. With respect to the first element contained in clause 48(a), I must be satisfied that the relevant circumstances were beyond the control of the Applicants. If the Applicants could have exerted some influence so as to reduce the impact of those circumstances then they may not be considered beyond the control of the Applicants. The VET Information provides that circumstances could be considered beyond a person’s control if a situation occurs that a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.[10] This operates as a restriction on the circumstances that otherwise might have been relied upon. The clear intention is to deny applicants a remedy if they could have acted to avoid the consequences of the circumstances affecting them.

    [10]  Ex 2, FFST171 p 646 VET Information p 52.

    Impracticable to complete

18. With respect to the third element contained in clause 48(c), I must be satisfied that circumstances made it impracticable for the Applicants to complete the requirements for the Advanced Diploma within the relevant period.

19. This requires a causal connection between the circumstances, on the one hand, and the failure to complete the course, on the other hand. The extent of the causal connection required is that the circumstances must cause it to become impracticable for the person to complete the course.

20. There is a temporal limitation prescribed by “the period during which the person undertook, or was to undertake, the unit.” The relevant period is from the commencement date to the completion date for the course, which was expressed to be a period of 78 weeks. Coombs was advised that the completion date was 2 March 2015 but that was extended to 23 June 2015. For Sooaemalelagi the completion date was always 23 June 2015. Consequently, the circumstances must have made it impracticable for the Applicants to complete the requirements for the Advanced Diploma by on or before 23 June 2015.

21. I must consider the meaning of “impracticable”. The word “impracticable” is found in other statutes and has been considered judicially.

22. In the family law context, s 79A(1)(b) of the Family Law Act 1975 (Cth) provides that an order may be set aside if, inter alia, the Court is satisfied that “In the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out”. Gee J, in the Marriage of Rohde[11] considered that provision and said:

    …

    (b) The word “impracticable” means, gleaning a definition from the Shorter Oxford Dictionary; “not practicable”; “that cannot be carried out or done”; “practically impossible”; “unmanageable”; “intractable”.

    (c) “Impracticability” is a conception different from that of “impossibility”; the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice (per Veale J in Jayne v National Coal Board [1963] 2 All ER 220 ).

    (d) Provided that more than one circumstance exists, and that the circumstances have arisen since 12 March 1982, it does not matter what the circumstances are or by whom they are brought about.

    [11] (1984) 10 Fam LR 56, 64.

23. In the employment context in Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia,[12] Kenneth Martin J said:

    It is the intrinsic character of a descriptive word, such as ‘impracticable’, that it demands an underlying and accompanying factual context for the word to deliver some practical utility in a context of underlying facts. The nature of the word cries out for a context of fact in order to be sensibly evaluated.

    [12] [2017] WASCA 86 [84].

24. Further, Kenneth Martin J said:[13]

    The plain, ordinary meaning of the word ‘impracticable’, used in its present context within s 23A(4) and s 23A(6) of the IR Act, is necessarily tied to the underlying contextual circumstances of fact concerning Ms Vimpany’s employment in the present case. This requires a bespoken factual evaluation regarding the assessed impracticability in overall context of Ms Vimpany’s possible reinstatement, or her possible re-employment to another position with the PTA as a matter of discretion as to remedy.

    [13] Ibid [148].

1. As stated, the issue for determination is whether there were special circumstances that made it impracticable for the Applicants to successfully complete the course in time. In accordance with the above authorities, the meaning of “impracticable” in the context of clause 48 is necessarily tied to the underlying contextual circumstances of fact concerning the Advanced Diploma and the Applicants’ participation in the Advanced Diploma. This requires a factual evaluation and assessment with respect to each Applicant as to whether those circumstances made it impracticable to successfully complete the course in time. The VET Information provides that circumstances that make it impracticable to complete the requirements for the VET unit of study may include course related circumstances.

   Impracticable and beyond control – a cumulative approach

2. The elements of clause 48(c) are cumulative and must all be satisfied before there can be a finding of special circumstances under clause 46(2)(c). If there are circumstances that make it impracticable to complete the course but those circumstances are not beyond the student’s control then those circumstances cannot be relied upon as special circumstances. If one uses the term uncontrollable to mean beyond the control of the Applicants then, the question to be determined in this matter is whether there were uncontrollable circumstances that made it impracticable for the Applicants to successfully complete the Advanced Diploma. That question must be determined separately for each applicant.

3. The approach I will take with respect to special circumstances is, having considered the relevant evidence, to determine:

   (a)what were the requirements for the Advanced Diploma;

   (b)what are the special circumstances;

   (c)whether those special circumstances:

   (i)made it impracticable for the Applicant to complete the course; and

   (ii)were beyond the control of each Applicant.

   EVIDENCE

   Sooaemalelagi

4. Sooaemalelagi gave evidence as follows.

5. Sooaemalelagi enrolled in the Advanced Diploma at the School on 26 December 2013 with a commencement date of 30 December 2013. The total cost of the course was $114,900.00. She obtained financial assistance from the Commonwealth by way of a VET FEE-HELP loan in the amount of $93,204.00. The course census date for Sooaemalelagi was 24 March 2014. She did not withdraw from the course prior to that date and therefore incurred a debt with the Commonwealth in the amount of $93,204.00.

6. From the date of her enrolment up until 23 April 2014, the School was owned and operated by Greg Norris. Whilst operated by the previous owner, Sooaemalelagi received periodic flight schedules, online theory lessons using the Ron Newman program, assessments and weekly in-person group tutorials at which she could ask the ground instructor questions with respect to what she had been learning online that week. She would also have weekly one-on-one meetings with Norris about her progress through the course.

7. The delivery of the course changed after 23 April 2014. Sooaemalelagi’s progress through the theoretical components of the course was no longer being monitored. She was no longer provided with schedules outlining when theory modules needed to be completed. The regular tutorials and assessments ceased. Only her practical flight training was being monitored.

8. Sooaemalelagi attended some tutorials with Bennett in May and early June 2014 and then sat the Civil Aviation Safety Authority (“CASA”) private pilot licence (“PPL”) theory exam on 19 June 2014. She passed that exam.

9. After passing the CASA theory exam for the PPL, Sooaemalelagi continued with the practical training component of the PPL. Between 19 June 2014 and November 2014 no tutorials were being conducted to prepare Sooaemalelagi for the CASA commercial pilot licence (“CPL”) theory exams.

10. From 20 November 2014, the School employed a new ground theory instructor, Des Moore, to provide tutorial assistance to students for the CPL and command instrument rating theory components of the course. Sooaemalelagi attended her first tutorial with Moore on 24 November 2014. She attended all of Moore’s tutorials.

11. Sooaemalelagi sat her first CASA CPL theory exam on 27 November 2014 after having received an email from the School earlier in November that she should start sitting those CASA CPL theory exams.

12. On 28 November 2014, Sooaemalelagi sat the PPL flight test. She passed the flight test and, having now successfully completed both the theoretical component and the practical component, she obtained her PPL.

13. After obtaining her PPL, Bennett told Sooaemalelagi that she needed to increase her solo flying hours in order to meet the CASA CPL requirement of 70 hours solo flying. By mid-February 2015 she had completed about 62 hours of solo flying.

14. On 13 February 2015, Sooaemalelagi received an email from the School advising that it was holding a general meeting on 18 February 2015 which the students should attend. On 18 February 2015, Sooaemalelagi attended that meeting.

15. At that meeting, the students were told that they were behind in the course and that no one was likely to finish the rest of the course in the remaining time. The students were advised that their best option was to withdraw from the course because otherwise they would likely fail the course and have to pay the funding gap for which they were liable. The School made an offer to all the students to enter into a credits contract if they withdrew from the course. The School also suggested that each of the students speak with Bennett if they did not wish to accept the credits offer. However, the School emphasised that the best option was to withdraw.

16. Sooaemalelagi did not want to withdraw. She already had a job lined up as a pilot with Samoa Air doing surveillance flights across the Pacific. Her intention was to complete the Advanced Diploma and obtain all the relevant CASA licences. She was surprised at being told that she was behind and that she would most likely not be able to complete the course by the end date of 23 June 2015.

17. On 26 February 2015, she had a meeting with Blake at which she expressed her intention to continue with the course. Blake said that the School would fast-track her so that she could get through as much of the course syllabus as possible and they would also give her a training schedule. Blake then referred her to see Bennett.

18. Sooaemalelagi met with Bennett. He told her that it was highly unlikely that she would complete the course but that she could try. He told her to stop flying and to concentrate on completing the CASA CPL theory exams. She asked Bennett to provide her with a training schedule so that she could “knock off as many modules of the course” but was never provided with one.

19. Sooaemalelagi passed the balance of the CASA CPL theory exams by 31 March 2015 and then had a further meeting with Bennett when she advised him that she had sat and passed all the CASA CPL theory exams. She resumed her flight training on 2 April 2015.

20. On 17 April 2015, Sooaemalelagi and her parents had a meeting with Bennett. He said that she would not be able to complete the Advanced Diploma by the course end date of 23 June 2015. Mr Bennett said the reason for this was because of her underperformance and inability to meet the minimum standards.

21. At a further meeting sometime in May 2015, at which Blake, Johnston, Bennett, Sooaemalelagi and her parents were present, she was told that she had run out of money and on that basis could not complete the remainder of the course. Sooaemalelagi raised that she had never before February 2015 been told that she did not have enough money or enough time to complete the course and it was now too late to do anything about it. She said that she still wanted to finish the Advanced Diploma.

22. By 1 June 2015, Sooaemalelagi was considering withdrawing from the course. She had received the contract from the School and sought independent advice from the Legal Services Commission and the Office of the Training Advocate. Ultimately, she decided not to withdraw from the course. She paid for a further two training flights with the School on 28 and 29 May 2015. On 3 June 2015, Johnston wrote to Sooaemalelagi advising her that “further flights or training will not be possible (including pay-as-you-go training).”

23. On 2 July 2015, Ms Sooaemalelagi started further flight training at another school. As the Advanced Diploma had expired, she enrolled in a Certificate IV course which included the CPL and command instrument rating. She completed her remaining solo flight hours and then successfully sat the CPL flight test over the course of two days namely 27 August 2015 and 14 September 2015. On 30 December 2015, she commenced the training for the command instrument rating. By 2 March 2016, she had completed her training.

24. In late 2016 the School provided Sooaemalelagi with a list of the complete internal units results for the Advanced Diploma.[14] The units listed for the flight training phase included modules for PPL, CPL and command instrument rating. The units listed for the theory blocks included modules in PPL, CPL, command instrument rating, Air Transport Pilot Licence (“ATPL”) and “Other”. Sooaemalelagi is recorded as having completed 27 modules in total being five modules in the flight training phase (completed between 26 March 2014 and 17 May 2015) and 22 theory modules (including 11 PPL theory modules completed on 19 June 2014 and 10 CPL theory modules completed between 27 November 2014 and 24 March 2015 and First Aid). With respect to flight training, Sooaemalelagi is recorded as having not advanced to the CPL flight training.  In summary, Sooaemalelagi was delivered and successfully completed 27 out of the 58 modules in the Advanced Diploma. None of the Block 3 modules were delivered to her.

    [14] Ex 1, T154 p 503.  See also ST16 p 508.

    Nigel Coombs

25. Coombs gave evidence as follows.

26. He enrolled in the Advanced Diploma on 26 August 2013 and officially commenced the course on 2 September 2013. He obtained VET FEE HELP in the sum of $87,060. An invoice was provided which recorded the census date of 18 November 2013, the course completion date of 2 March 2015 and the course fee of $114,900. He completed the necessary forms to enable him to participate in the Skills For All funding program offered by the SA Government.

27. Coombs commenced his theory and practical training in early November 2013. He flew regularly during the first four months of the course and had completed his ab initio training by 16 February 2014 which meant he was ready to proceed to his first area solo flight. With respect to theory during this period, he was carrying out exams at the School and the online tests known as Ron Newman and participating in weekly tutorials. Coombs’ records show that the School provided him with a schedule of activities including tutorials and tests for the period 3 February 2014 to 16 March 2014.[15] His records also show that he had completed, through the Ron Newman program, all the private pilot and commercial pilot licence tests as at 26 February 2014. He was well advanced in terms of the theory for the course by April 2014 when the management changed.

    [15] Ex 2, ST16 p 185.

28. From February 2014, Coombs’ flight training records show that he commenced experiencing some difficulties in the area of navigation. Coombs was then grounded from 25 March 2014 until his flight lessons recommenced on 25 August 2014. The reason for this break in flight lessons was that Coombs had attempted his first CASA theory exam for his PPL on 11 April and 24 April 2014 and had failed both times. The School decided, based upon its policy, that Coombs should not undertake any further solo flights until he had passed the CASA PPL exam. Coombs eventually passed the CASA exam on 11 August 2014. In a letter from the School to Coombs dated 18 November 2014 Blake explained:

    It is a requirement of BHFS Operations Manual that before a trainee pilot can undertake solo cross country flying they are required to have passed the CASA PPL written exam. This is a benchmark test to ensure that the student has adequate knowledge to operate independently and safely during their flight training. On two occasions you attempted the test and failed. The situation faced is that a third failed attempt would result in a 3-month delay before being able to re-test for a fourth time. If a fourth attempt is needed and the student fails then there are no further chances. This made it essential to avoid delay that the third attempt was to result in a pass. BHFS’s policy in this situation is to ground the pilot from any further flight training. The flight training phase only to resume after successful completion of the PPL written examination. This grounding is designed to give the student every opportunity to ensure they pass.

29. When Coombs resumed his flight lessons on 25 August 2014 he continued experiencing difficulty with his navigation exercises. On 22 September 2014, Coombs was issued with a formal note written by Bennett as the chief flying instructor at the School, which recorded that after a series of remedial flights he was failing to make satisfactory progress with his PPL navigation exercises and the flight instructor expressed concerns about his ability to safely conduct any solo flight. On 3 October 2014 Blake wrote to Coombs advising that he was not meeting the requirement of satisfactory completion of the course. A further formal note was issued by Bennett on 8 October 2014 recording that Coombs acknowledged that his progress with navigation training was poor; however he felt that this was largely attributable to the way some of his recent lessons were conducted by one of his instructors.

30. On 15 November 2014, Coombs wrote by email to Blake expressing his concern that he was only flying once a week and his course finishes in June 2015 and that he will not finish in time at this rate. He asked for some sort of timeline and schedule. Blake responded by letter dated 18 November 2014 advising that the School had become increasingly concerned that there may be insufficient time remaining to complete all the modules and units in the Advanced Diploma and that:

    Since the resumption of flight training there have been two modules of remedial training conducted. These have not progressed to a fully satisfactory standard, however some improvement is evident but there is still need for further consolidation training and remedial flying. Also, it was discussed that flight training continuity is important and could be a factor in the slow improvement. In order to try to improve this BHFS will endeavour to try to provide a suitable flight instructor and to try to achieve a minimum of 2 flights per week (subject to weather and other operational requirements). I will ask Mark Bennett to organise this series of flights culminating with a further progress report. This he will send to you directly.

31. Coombs accepted that he had difficulty with his navigation exercises which meant that he needed more practice before flying solo. Bennett confirmed by email to Coombs dated 20 November 2014 that he had scheduled five remedial PPL navigation exercises and that he had determined that all the exercises should be conducted by a senior flight instructor and should be scheduled at a rate of at least two per week. Coombs responded by email on 22 November 2014 advising that “the schedule is great thank you”.

32. The flight records for Coombs show that in the four month period from November 2014 to February 2015 there were only 10 flights. If the minimum of two flights per week had been provided then Coombs would have expected to have received about 34 flights. Blake was asked in evidence why Coombs was not given two flights per week and he said: [16]

    Mr Bennett was in charge of scheduling this training and I believe at the time it was limited to who could be used to train Mr Coombs. We were trying to get either Mr Bennett to try to fly with him or Mr Craig Nairn. So their availability would have limited the times and I can’t see what weather impact on the days Mr Coombs was available may or may not have had.

    [16] Ex 2, T76.

33. Bennett made an assessment of Coombs on 10 February 2015 and said:

    My belief that Nigel may not be able to achieve the standard required to obtain a PPL was stated in the debrief. Nigel is determined to continue training and believes he will get better with practice.

34. Coombs had a part time job driving a truck but he said that did not impact his availability to fly. Bennett said that it was a factor that made it difficult to schedule flights. Coombs started working one day a week as a truck driver in March 2014 and then after October 2014 he increased it to three or four days per week because the course was not being delivered. He did not let it affect his studies.

35. Coombs attended the student meeting on 18 February 2015 but never expressed any interest in the credits offer and continued to ask for flights after the meeting. He was only provided with two further flights – the first on 25 February and the second on 18 May 2015.

36. On 25 February 2015 Coombs met with Bennett and Blake to discuss his progress with the object of moving him forward. Bennett told Coombs again that he did not think he would obtain his licence. Coombs felt under pressure to withdraw from the course and accept the credits offer.

37. Coombs continued to ask for flights to be scheduled in March 2015. Johnston told him that flights were not available due to plane maintenance issues.

38. On 27 March 2015, Bennett wrote to the students including Coombs saying: [17]

    In the time since the meeting we have intentionally reduced the workload/flying time to allow time to consider the options and make a decision. We are now reaching a time where we will need to assume that you are continuing on the course unless you have informed us otherwise. This will mean the company will resume making bookings for training sessions and flights in accordance with your notified availability. This will also mean that by the completion date in late June, you will become liable for outstanding course fees.

    [17] Ex2, FFST90 p 158.

39. Coombs was not happy. He wrote to Johnston on 29 March 2015 referring to the fact that he had not flown for a month again and that he was really angry about the delivery of the course. [18] He confirmed asking for a schedule and timeline with regard to his flying. He said:

    I want a clear written plan and schedule to achieving this outcome as discussed over the telephone. … I just want to achieve what I came down here to do and that’s to become a commercial pilot.

    [18] Ex2, FFST93 p 161-163.

40. The response from Johnston was to continue to press Coombs to accept the offer to withdraw from the course. Johnston said in his responding email: “if you accept the BHFS Credits offer … just ring Nat for your next booking.” Coombs felt that no flights were being given until the offer was accepted. Despite making his intention clear that he did not wish to accept the offer and withdraw from the course, Coombs was provided with agreements to sign dated 22 April 2015 and 26 April 2015 together with a printout recording the cost of all his flight training up until 23 April 2015. 

41. On 11 May 2015 Johnston wrote again to the remaining students providing a second reminder in regard to the credits offer which had to be accepted by 22 June 2015 if not: “you will then receive a pass or fail on the Advanced Diploma of Management, and you will be personally liable for the funding gap as per your individual calculation.” Coombs continued to ask for flights by approaching Blake, Johnston, Bennett and Natalie McAllister. Finally he was able to schedule one flight on 18 May 2015.

42. Shortly after this final flight, Coombs had his last meeting at the School with Blake who said “Sign the bloody contract. You are not going to win.” Coombs left and never came back.

43. On 4 June 2015, Johnston wrote to Coombs advising that there would be no Skills For All payment due to payable units not having been completed. A revised contract offer was enclosed with the letter calculating a net funding gap of $26,584.00. A final reminder letter was sent by Johnston to Coombs on 10 June 2015.

1. On 25 June 2015, Johnston sent an email to Coombs confirming that the course had finished on 23 June 2015 and advising that an invoice would be issued for the funding gap of $26,340.00. An invoice for that amount dated 25 June 2015 was issued and sent to Coombs. On 13 July 2015, Johnston sent an email to Coombs attaching the invoice and advising that it was now overdue as it should have been paid in full by 9 July 2015 and threatening legal proceedings. Coombs responded by saying he would not pay and he requested a full refund of the VET FEE HELP debt of $87,060.

2. The total flight training hours provided to Coombs was approximately 90 hours. This is significantly less than the 200 hours allocated by the School for flight training for each student.

3. Coombs was notified in July 2015 of the Advanced Diploma results which recorded the 16 units in the Advanced Diploma and a result against each unit of “competency not achieved/fail”.[19] The overall result was recorded as “competency not achieved/fail”. Coombs found it difficult to identify those units or modules that he had actually completed.

   [19] Ex 2, T14 p 66.

4. In late 2016 Coombs received the complete internal units results.[20] The units listed for the flight training phase included modules for PPL, CPL and command instrument rating. The units listed for the theory blocks included modules in PPL, CPL, command instrument rating, ATPL and “Other”. Coombs is recorded as having completed 13 modules in total being two modules in the flight training phase (completed on 16 December 2013 and 16 February 2014) and 11 PPL theory modules (completed on 11 August 2014 when the CASA exam for the PPL theory was passed). With respect to flight training, Coombs is recorded as having not advanced beyond the requirements for navigation in the PPL stage and he never attempted the PPL flight test or the CPL flight test. In summary, Coombs was delivered and successfully completed 13 out of the total of 58 modules which made up the Advanced Diploma syllabus. None of the Block 3 modules were delivered to him.

   [20] Ex 2, FFST168 p 588.  See also T14 p 67.

   Greg Norris and Karen Duke

5. Norris and Duke gave evidence as follows.

6. Norris was the owner and operator of the School from about 2001 when it became a registered training organisation. Norris was married to Karen Duke who acted in the administrative role of Office Manager at the School. Norris incorporated Bruce Hartwig Flying School Pty Ltd on 15 August 2008. He was the sole director and shareholder up until 22 April 2014 when Blake and Johnston took over as directors and shareholders (through their company Hartwig Air Pty Ltd). Norris had arranged for the School as a registered training organisation to be accredited to deliver training and assessment in the Advanced Diploma. The accreditation for this course started on 10 July 2013 and ended on 31 December 2013 but there was a “teach out” period that allowed the Advanced Diploma to be delivered up until June 2015.

7. Norris and Duke commenced enrolling students in the Advanced Diploma from about September 2013. Norris had a hands-on role in structuring and teaching the Advanced Diploma. He allowed 18 months for the Advanced Diploma to be completed but he considered that 12 months full-time was a reasonable period of time within which to complete the course. The theory component was conducted  online utilising the Ron Newman course which included regular tests submitted by email. Tutorials for the theory component were conducted weekly on Tuesdays and Thursdays. Norris monitored the progress of students on an Excel spreadsheet. If a student was falling behind then Norris would bring them into his office and conduct a one-on-one interview. Tutorials were scheduled for the duration of the Advanced Diploma including with respect to the final block of the ATPL.

8. With respect to practical training, about 200 hours of flying time was allocated to a student for completion of the Advanced Diploma. Training was progressive and competency-based. If the student needed more than the 200 hours allocated then the School had to wear that. It was a fixed-price course the cost of which was based on 200 hours of flying time per student (including pre- and post-flight briefings). The fee for the course covered all the modules. If a student fell behind in flight training then remedial training would be provided at an extra cost to the student.

9. Norris said that if a student was falling behind in theory then a warning would be given and if the student was not achieving the required outcomes they could be failed for that specific module but allowed to carry on with the balance of the course theory. Norris said that tutorials with respect to ATPL were planned for the last four months of the course in addition to the online component delivered through the Ron Newman course.

10. In April 2014 at the time of the change in ownership and management Norris spent many hours with Blake going through the course with him. There was a one week handover period when Norris shared an office with Blake. Duke stayed on as office manager until about July 2014.

    Kenneth Howlett

11. Ken Howlett is a commercial pilot with 50 years’ experience in the aviation industry. He gave the following evidence.

12. In late 2016 he instructed Sooaemalelagi in mountain and valley flying to enable her to complete a New Zealand commercial pilot licence needed for a flying position in Samoa. Mr Howlett spent about 10 hours flying with her and found her to be an astute and intelligent young pilot.

13. Sooaemalelagi asked him to look over her training notes for her time at the School. He provided a witness statement and oral evidence which was generally critical of the practical flight training delivered by the School to her after the ab initio phase that concluded in about March or April 2014. In particular, he was surprised at the number of hours required to reach certain milestones such as the PPL. His evidence was of a general nature and it was not always clear on what material he based his opinions. There was no formal letter of instruction given to Howlett and it was apparent that he had not complied with the Tribunal’s guideline for persons giving expert and opinion evidence. Consequently, I give the expert evidence of Howlett no weight.

    Hayden Cutts

14. Cutts gave the following evidence.

15. He enrolled in the Advanced Diploma at the School in September 2013. In an email sent on 13 July 2015 he complained of a lack of organisation and structure at the School. This included frequent cancellation of flights due to aircraft availability and maintenance issues and limited access to suitably qualified instructors. He said that in about March 2015 he was told that there was insufficient time to complete the remaining units in the Advanced Diploma despite never having had prior notification of falling behind.

16. Cutts made a formal complaint to the School by email dated 20 August 2015 but his complaint was rejected.

17. In his oral evidence Cutts explained that the quality of the training at the School dropped over time. At first, the theory component was delivered online through a package known as Ron Newman and students were given a layout of the required work for the week ahead. Students studied the online material and completed regular online exams which were emailed through to the School. Tutorials of about three to four hours duration were given at the School every Thursday morning. During the tutorials the students worked on the Ron Newman syllabus and were taken through the results of the online tests completed before hand. There were about four or five students in each tutorial. These tutorials stopped after the first quarter of 2014 when the management of the course changed hands.

18. Cutts achieved his PPL in May 2014 after having completed 54 hours of flights. With respect to the CPL and ATPL theory components of the course he was told not to do the Ron Newman assessments but instead study for and complete the CASA CPL and ATPL exams which would satisfy the Advanced Diploma requirements. He progressed through the course and had completed his CPL theory modules (for which there were seven CASA exams) by the first week of January 2015. Some tutorials were provided to assist with the CPL component. After January 2015 he started studying for the ATPL exams but there were no lectures or tutorials provided by the School. No training was provided with respect to the command instrument rating component of the course.

19. His flight test for the CPL was delayed because two aircraft were out of action in January 2015 and no instructor was available. Eventually an external instructor was engaged and Cutts completed the test in March 2015.

20. In February 2015 Cutts attended the meeting of students arranged by the School at which the credits offer was made. He was told, along with other students, that he would not finish the course in time and that if the offer was not accepted then the School “would chase us for money”. He was provided with a “BHFS Credit Calculation” which showed a net funding gap of $11,510. If he accepted the credits offer then there would be no liability to pay for this gap. After the meeting, Bennett told Cutts to stop his flight training until the credits were worked out. He did not accept the offer but felt pressure from the School to do so and to withdraw from the course. He met with Blake and asked how he could finish the course. There was no program provided to him with respect to the balance of the course. Cutts gave evidence that the flight training was stopped because he did not sign the credits offer. Eventually, the School advised him to take up an offer of a job at Williams Creek which he did so in about April 2015.

21. In July 2015, Cutts received a record of his results which listed 16 subjects or units and recorded a “competency not achieved/fail” against each subject.[21] He was very disappointed that he did not achieve any tertiary qualification which was a prerequisite for a pilot with a commercial airline or the Airforce. The subjects on the results record were those from the ATPL block of the course none of which was delivered to him. Cutts later became aware that the course was comprised of 58 modules but he was never told that during the course.

    [21] Ex 1, ST16 p 346.

    Kyle Brereton

22. Brereton gave the following evidence.

23. He commenced the Advanced Diploma in January 2014. Soon after the School was sold to the new owners it became more and more difficult to progress through the syllabus.

24. By the time of the February 2015 student meeting he had completed the theory and practical flight tests for the PPL and the CPL. The remainder of the course, namely the ATPL theory and the command instrument rating practical component, was not provided to him.

25. He attended the student meeting and was told that it would be in his best interest to withdraw so as to avoid any liability for a debt and because he was unlikely to finish the course in time and would therefore fail. It was his understanding from the meeting that all the students were too far behind to complete the course in time. He felt under pressure to sign the credits offer. He was told that he did not have enough money to complete the command instrument rating flight training.  He was provided with no plan as to how to finish the course. He decided to accept the credits offer and was told that he only had a $5,000 balance that could be used internally at the School.

26. As at the date of the February 2015 meeting Brereton had flown for about 200 hours but he had never been told previously that there was a 200 hour cap on flights offered to students. It was only at or around the time of the February 2015 meeting that Brereton became aware that the School would not deliver any further flight training for the command instrument rating.

27. Brereton gave evidence that he had assumed that the fixed fee course would deliver to him all of the components with respect to the PPL, the CPL, the command instrument rating and the ATPL.

    David Webster

28. Webster gave the following evidence.

29. He enrolled in the Advanced Diploma in September 2013. He provided a witness statement which referred to the “slow delivery of the training being experienced when the new owners took over”. He said further:

    The flying school decided later not to continue delivering the Ron Newman theory to the students as it was inadequate for the student’s needs. This caused delays for me as I had to finish the internal exams so I could continue with the next phase of my flight training. My training was later greatly assisted when the flying school hired Des Moore a ground theory instructor to assist with tutorial classes. I was then able to pass my exams.

30. With respect to flight training Webster said that there were many delays because there were not enough Cirrus aircraft available for all the students due to student numbers and maintenance. He said that his command instrument training was delayed due to the Diamond DA42 aircraft having mechanical issues.

31. As at the date of the February 2015 meeting Webster had completed the theory and practical component of the PPL and had completed the seven CASA CPL theory exams. He had also commenced the command instrument rating theory with tutorials from Des Moore in late 2014.

32. He decided to accept the credit offer soon after the February 2015 meeting because he knew that three more months was not enough time to complete the course. He felt that June 2015 was fast approaching and that by accepting the credits offer he would be given an extra 24 months within which to complete his command instrument rating and his CPL practical training. In his written statement Webster said:

    The Advanced Diploma course was running over schedule and there wasn’t enough time left for the Advanced Diploma course to complete my instrument rating training and the Air Transport Pilot ATPL subjects which were originally planned.

33. Blake was asked about this statement and said that he agreed with it.[22]

    [22] Transcript (25 October 2018) p 90.

34. Webster paid to complete his CPL flight training outside of the course. By signing the credits offer he avoided being invoiced for the student contribution gap.

    James Crisp

35. Crisp did not give evidence but the School records show that he withdrew from the Advanced Diploma after the February 2015 students meeting by which time he had completed a total of 27 modules made up of 22 theory modules and five flight training modules (up to but not including CPL). [23]

    [23] Ex 1, ST6 p 11 – 13.

    Mark Bennett

36. Bennett gave the following evidence.

37. He was the chief pilot and chief flying instructor at the School when the Advanced Diploma was being taught. He has been continuously employed by the School since February 2002. He was involved in making the decision to reject the original application for VET FEE HELP re-crediting due to special circumstances.

38. Bennett said that the flight training course was a finite number of hours. There was a limit on the hours of flying available to achieve a certain outcome. The School was not required to continue delivering hours of training until the required outcomes were achieved.

39. Bennett said that they relied on students providing feedback if they were falling behind in the theory components of the course. With respect to flight training the progress of the students was monitored by the instructors.

40. He said that both Applicants failed to achieve the competencies required to complete the course within the available time, flight hours and funding. He accepted that parts of the course were not delivered to the students as they failed to progress to these parts. He said that their failure to progress was not due to a lack of resources at the School or failure to offer parts of the course. He said that lessons are linear and it is not possible for practical, regulatory and safety reasons to continue delivery of training until required competencies have been achieved for each phase.

41. He said that the 16 units accredited as the Advanced Diploma were the advanced end of the training.

42. With respect to Coombs he said that he had demonstrated no ability in solo navigation flights and that he was a long way away from completing the PPL requirements. They discussed with him options of a partial completion of the course but Coombs was of the view that he could finish.

43. On 27 January 2015 Bennett conducted an assessment as the chief flying instructor due to Coombs’ unsatisfactory progress through navigational training to date. Bennett concluded that Coombs was unsafe on solo flights and that a further check flight was required. On 10 February 2015 Bennett conducted a further assessment and recorded:

    My belief that Nigel may not be able to achieve the standard required to obtain a PPL was stated in the debrief. Nigel is determined to continue training and believes he will “get better” with practice. … No solo flights without CFI approval.

44. With respect to Sooaemalelagi her issues were with situational awareness and flight management skills and a lack of confidence. He said that she failed to progress because she had reached a plateau with respect to progress in flight training. He thought she had the potential to complete the Advanced Diploma but only with additional help. He said that she would have been able to finish the qualification but not within the required time and resources.

45. Sooaemalelagi had not commenced training for the command instrument rating as at February 2015.

46. Bennett said that having completed the CASA CPL theory requirements as at 31 March 2015 it was still not impossible for Sooaemalelagi to complete the Advanced Diploma by 23 June 2015.

47. At some stage, Bennett met with Sooaemalelagi and her parents and said that it was unlikely that she would complete the course in time. No more flights were offered because she had completed all the hours allocated to her.

48. Bennett said that by mid-2014 he had became become concerned about the ability of students to finish the course. Consequently, he ran two weeks of tutorials sometime in May or June 2014 and then the School engaged a ground instructor, namely Des Moore but that was not until late November 2014.

49. As at the date of the 18 February 2015 meeting he said that some of the students would have finished in time if they had not accepted the offer. With respect to Coombs, he did not have the capability to finish at all.

50. After the February 2015 meeting the School did reduce the flights and the workload because students wanted time to consider their decision. He said that the slowdown did not impact on a student’s ability to finish the course in time.

51. None of the students enrolled in the Advanced Diploma completed all the requirements of the course. Bennett said that some would have, though they decided to withdraw after the February 2015 meeting.

    David Johnston

52. Johnston gave the following evidence.

53. He and Blake took over the management of the Advanced Diploma from 23 April 2014. There were about 20 students enrolled in the course and the census date for each one of them had passed. He considered that the structure of the course as one VET unit was unusual because it was spread over 18 months instead of a shorter period.

54. By June or July 2014 Johnston became aware that some students were falling behind and had the potential not to be able to pass the course by its end date of June 2015. He was in contact with Chris James from the Respondent with respect to the options available to the School with respect to the students. One option considered was to offer the students a partial re-crediting of the VET FEE HELP debt if they wished to withdraw from the course. In this regard, Duke as the office manager at the School, wrote to the Respondent on 16 June 2014.

55. By November or December 2014 there was a wide spread of students in terms of their progress through the course. Those students at the tail-end were unlikely to finish. Johnston said that he relied upon discussions that he had with Blake and Bennett with respect to those students who had potential problems and that as a result they identified about four or five students who may not finish the course. One option was to fail those students but Johnston felt that it was not ethical to do so nor was it a good business outcome. He said that he had to become creative because he was concerned that the School would not receive the funding gap required to be paid by each student with respect to the Advanced Diploma. He was also concerned about and wanted to avoid students becoming bankrupt as a result of not being able to fund the gap.

1. Johnston spoke to James about the problem of students not being able to pass.  Over Christmas Johnston devised a credits offer. The School had been keeping a running total of the costs being incurred by each student for their flight training. The offer involved a scheme to advise students of their account balance and give them two years to utilise that balance with the School. As part of the scheme students would withdraw from the Advanced Diploma and their liability for the funding gap would be waived.

2. On 9 February 2015 Johnston wrote to James seeking his opinion with respect to the proposed credits offer. James called Johnston and said the proposal looked fine but he was unable to give an answer until later. On 14 April 2015 James wrote and advised that the proposal seemed fair.

3. Johnston gave evidence that as at February 2015 there were 11 students who were considered capable of fully completing the Advanced Diploma in full and 9 who were not.[24] He considered that Sooaemalelagi was amongst the 11 students capable of completing the course.

   [24] Ex 43.

4. Students were invited to attend a meeting on 18 February 2015. Johnston used a PowerPoint presentation to explain the scheme of credits offer to the students. A standard form contract incorporating the terms of the credits offer was provided to each student and they were told to take it away and consider it.

5. Johnston had become aware that the Skills For All subsidy from the state government was based upon progressing through all the modules of the course. If they were not all completed then the maximum subsidy of $14,673 would be reduced. Consequently, Johnston explained to the students at the meeting that depending on their progress through the course students may not be entitled to the maximum subsidy for SFA. The smaller the subsidy, the greater the gap payable by students for the Advanced Diploma. Students were told that if they withdrew from the course then the funding gap would be waived and they would receive credits for flight training that could be utilised with the School over a two-year period.

6. Johnston gave evidence that they continued to offer the course but that he was surprised that so many wanted to accept the offer. He said that some of those who accepted the offer made up their mind to do so pretty quickly after the February 2015 meeting and that about half of the students had accepted the credits offer by 14 April 2015.

7. Johnston accepted in evidence in chief that Coombs telephoned him to complain about not getting flights. Johnston said that he raised it with Bennett and Blake and was satisfied that there were good reasons for him not being allowed to fly.

8. Coombs wrote to Johnston on 29 March 2015 referring to the fact that he had not flown for a month again and that he was really angry about the delivery of the course. [25]

   [25] Ex 2, FFST93 p 161-163.

9. Johnston said in his responding email:[26] “If you accept the BHFS Credits offer … just ring Nat for your next booking.”  

   [26] Ex 2, FFST93 p 161.

10. Johnston met with Sooaemalelagi on 26 May 2015 and then sent an email dated 30 May 2015 confirming that at that meeting Sooaemalelagi agreed that she would advise her decision to either:

    Accept the BHFS Credits offer, and withdraw from the Advanced Diploma course which incorporates waiving your $17,400 gap cost; or

    Be subject to a formal assessment process by our Chief Flying Instructor, which in all likelihood will result in a course failure determination and trigger an invoice to be issued for $17,400 to you, that will be payable within 14 days.

11. Johnston explained in evidence that if Sooaemalelagi wished to continue and not accept the offer then it was time for her to pay the gap.

12. On 1 June 2015, Johnston sent an email to Sooaemalelagi advising that:

    I received an email from you earlier today, relating to 22 June 15 being the previously communicated deadline for all Advanced Diploma students to accept the BHFS Credits offer or otherwise.

    In your particular case however, the amount of training you have undertaken has now placed the School into a financial loss position should any further training take place, in the absence of accepting the BHFS Credits offer. Your offer acceptance date was thus changed to Friday, 29 May 2015 …

    As previously advised, if you have not accepted the BHFS Credits offer by 5pm today, you will be issued with a formal failure notification with regard to the Advanced Diploma of Aviation.

13. Johnston explained in evidence that Sooaemalelagi had reached the limit of her training available under the course and that if she wanted more training then she would have to pay.

14. On 3 June 2015, Johnston sent an email to Sooaemalelagi advising that “as you are technically still enrolled on the Advanced Diploma as at today, further flights or training will not be possible (including pay-as-you-go training).”

15. On 25 June 2015 Johnston wrote to Coombs advising that the Advanced Diploma course completed on 23 June 2015 and that an invoice for the gap cost of $26,340 would be issued. [27] Attached to the email was a report from Skills for All.

    [27] Ex 2, ST16 p 180.

16. On 13 July 2015 Johnston wrote to Coombs advising that the gap payment of $26,340 was now overdue and that if not paid it would be transferred to a debt recovery firm and then legal proceedings would be commenced. [28]

    [28] Ex 2, ST16 p 222.

    David Blake

17. Blake gave the following evidence.

18. Blake is the Chief Executive Officer of the School. He conducted due diligence before purchasing and taking over the operations of the School in April 2014. He was aware that the Advanced Diploma had a further 15 months in which to finish but he considered that was a reasonable period at that stage. After taking over, some students started falling behind. On 16 June 2014 the School sent a letter to the Respondent advising that there were students who had potential not to be able to pass the course.

19. When asked about this letter, Blake said that, as at June 2014, the School had identified that there were about five students including Coombs who were falling behind and who had the potential of not finishing the Advanced Diploma. Blake also gave evidence that he agreed with the statement in the letter that students had been identified that had the potential to not pass.[29] As a result, the School recruited a ground theory instructor but he was not successful and only remained at the School for a few weeks in June or July 2014. It was not until November 2014 that Des Moore began as the ground theory instructor and he commenced a series of tutorials for students.

    [29] Transcript (12 December 2018) p 383, line 35.

20. By the end of 2014, Blake said that the situation with students falling behind had gotten worse and that there were approximately 10 students who had the potential to not finish the course at that stage. Blake said in evidence: [30]

    …we started to consider what other options we had regarding either extending the course or seeking another option… The options open to us were trying to extend the course to give us longer time finding an alternative which was eventually one of the options we presented to the students which was the option to withdraw from the course and take credits and try to get an outcome without those restrictions.

    [30] Transcript (25 October 2018) p 41, lines 11 to 26.

21. Blake was asked how many students were not going to be able to finish the course as at February 2015 and he responded:[31]

    Blake: It was getting close to all.

    Deputy President: So it had gone up again?

    Blake: Yes.

    Deputy President: And was that the primary reason for you to offer the credits?

    Blake: It was – it was a big influence because the other course of action would be to go for a bigger extension…

    [31] Ibid p 46, lines 5 - 15.

22. Blake gave evidence later that, as at the date of the meeting on 15 February 2015: [32]

    Blake: … So, at that point, nobody would have graduated it.

    Deputy President: So, you couldn’t see anyone potentially graduating as at the date of the meeting?

    Blake: No, not with the – not with the Advanced Diploma. I could see people getting licence outcomes but not the Advanced Diploma.

    [32] Ibid p 54.

23. The following day, under cross-examination by the Respondent, Blake qualified his evidence as to whether the students would not be able to finish the course by saying “it was certainly my opinion that was likely because of previous events but I didn’t base that on a lot of research.”[33] When asked if he wanted to change his evidence he said “I don’t want to change it particularly” and went on to say: [34]  

    …my personal belief was that it would be a struggle for anybody to get finished. However, the meeting occurred and the recommendations were clearly different when they looked at the evidence in some detail.

    [33] Transcript (26 October 2018) p132, line 41.

    [34] Ibid pp 132 –133.

24. Blake then said: [35]

    …I have my own personal opinion based on my experience and the way the students have gone and I didn’t think that any of them had a realistic chance of completing. That’s why we were looking at options to do other things.

    [35] Ibid  p 133, line 16.

25. Further relevant evidence is as follows:[36]

    Deputy President: Do you as CEO of the flying school take any responsibility for the fact that not one of your students was effectively able to finish the course as at February 2015?

    Blake: It would be – in hindsight, it would have been better to have a residential theory section which we have introduced subsequently. No help to these ladies and gentleman but something we learned.

    Deputy President: What does that mean? A more – – –

    Blake: Structured theory course – – –

    Deputy President: – – – structured theory component.

    Blake: – – – where you go to actual lessons. From my own experience, it’s a better learning environment. It suited me better for instance.

    Deputy President: That has been introduced after this course?

    Blake: It has but we weren’t able to introduce that because the course was underway so it – you know, it’s easy looking back and seeing what you could have done differently.

    [36] Transcript (25 October 2018) p 83, lines 5 – 25.

26. With respect to the difficulties that Coombs was having with navigational training and the view expressed by Bennett after the 10 February 2015 flight that he may not be able to achieve a PPL, Blake said that failing Coombs was not in the interest of him as a student. Blake went on to say: [37]

    We didn’t believe we had a safety issue or anything like that, so we felt we would be best served by trying to progress as far as we can to deliver as much training as we could. That was the decision at the time.

    [37] Ibid p 114.

27. Blake said that in the meeting with Sooaemalelagi and her parents after the student February 2015 meeting that he has no recollection of saying that he would fast-track Sooaemalelagi but instead the issue was that she was running low on funding[38] and that the only way forward was for money to be put in.[39] He did recall that Sooaemalelagi complained she had never been notified before February that she was at risk of not being able to complete the course because of time or reaching her allocated level of flying.[40]

    [38] Transcript (26 October 2018) p 152.

    [39] Ibid p 154.

    [40] Ibid p 215.

28. Blake confirmed in evidence that the total flight training offered by the course was about 198 hours.[41]

    [41] Ibid p 187.

29. With respect to ATPL tutorials Blake said:[42]

    We actually never got to that point, the tutorials, and the plan was, at the time, Mr. Bennett would deliver the ATPL tutorials but we never actually started to deliver them.

    [42] Ibid p 199.

30. Blake accepted that there was nothing in writing from the School informing Sooaemalelagi that she was tracking over her allocated hours and that she may not finish in time.[43]

    [43] Ibid p 208.

31. Blake said that it was up to the flying instructors and Bennett as Chief Flying Instructor to monitor where students were up to in the course.[44]

    [44] Ibid p 210.

    SOME UNCONTROVERSIAL EVENTS DURING THE ADVANCED DIPLOMA

32. As at December 2013, about 23 students were enrolled in the Advanced Diploma. Students were provided with various documents including a schedule of VET tuition fees, a VET FEE-HELP Student Handbook, a student study guide and briefing notes for the private pilot licence, an enrolment form and a policy and procedure document. The schedule of VET tuition fees for the Advanced Diploma set out that the tuition fees for that unit of study were $114,900.00 and that the VET FEE-HELP assistance was a maximum of $93,204.00. The schedule also referred to a Skills For All subsidy of up to $14,673.00.

33. The Commonwealth Assistance Notice sent by the School to Coombs on 3 January 2014 confirmed his enrolment in the Advanced Diploma commencing on 2 September 2013 and finishing on 2 March 2015. [45] The course census date was 18 November 2013. The tuition fee for the course was $114,900. The amount deferred through VET FEE-HELP was $87,060. The original course completion date applicable to Coombs was later extended to 23 June 2015.

    [45] Ex 2, T7 p 18.

34. The Commonwealth Assistance Notice sent by the School to Sooaemalelagi on 7 April 2014 confirmed her enrolment in the Advanced Diploma to be undertaken full-time over 78 weeks commencing on 30 December 2013 and finishing on 23 June 2015. [46] The course census date was 24 March 2014. The tuition fee for the course was $114,900. The amount deferred through VET FEE-HELP was $93,204.

    [46] Ex 1, T40 p 100.

35. On 23 April 2014 the School changed hands from Greg Norris to a company controlled by Blake and Johnston, who then took over the management of the School.

36. As early as June 2014, the School had identified some students who had the potential not to be able to pass the Advanced Diploma. On 16 June 2014, the School wrote to the Respondent advising that they had had a management meeting regarding these students’ progress and that “we can foresee that they will not be able to pass and as a consequence, not be able to gain the required licensing to allow them to work in Aviation as pilots.” [47]

    [47] Ex 2, FST3 p 162.

37. The School then decided to engage a ground theory instructor who could provide tutorials so as to assist the students who were falling behind. The first instructor started in about June or July 2014 but he turned out to be unsuitable and his engagement was terminated soon after he started. It was not until late November 2014 that an appropriate instructor was engaged by the name of Des Moore. He commenced a series of structured tutorials to assist students with the theory needed to pass the CASA CPL exams and the theory component of the command instrument rating. The School offered no tutorials with respect to the ATPL component of the course.

38. On 9 February 2015 Johnston wrote to the Respondent and said:

    “As discussed, we have a problem to resolve with respect to our Advanced Diploma Course…

    The issue we face is that there are a number of students who are clearly going to fail the course. …

    We have devised an alternative that your opinion is sort on. In short:

    ·the student voluntarily withdraws from the course

    ·we convert their remaining internally calculated VET balance School Credits that can be used for further flight training

    ·the students are free to continue studying for their CASA licenses, and to top up the Credit funding if need be. For example, we have one student who would have enough Credits to complete their instrument rating and CPL, but not their ATPL. The student would greatly prefer to take this path than to fail the Advanced Diploma course and still owe the $20,000 gap.

    Fortunately, we track any “drawing down” of the VET funds on a student-by-student basis, using our standard pricing. Although it is a fixed-price course we internally invoice the prepaid amount for each student in our balance sheet, so we can calculate a funds balance (whether received from VET or other sources such as the Skills For All state subsidy, or prepayments made in cash). It is this balance we are proposing to convert to Credits. We are also proposing to relieve the students of the gap that they currently owe if they choose to withdraw and take the School Credit path.

    I have attached an example draft of the agreement we would be seeking to use should any of our Advanced Diploma students wish to avail themselves of this option.

39. The Respondent replied on 14 April 2015 saying that the approach outlined seemed fair.

40. On 14 February 2015, students were invited to a meeting to discuss their options given that the end date of the Advanced Diploma was approaching. The meeting was held on 18 February 2015. There was a PowerPoint presentation at the meeting.[48] Johnston explained to the students that the VET FEE-HELP assistance of $93,204.00 had been paid to the School and was allocated towards the total course fee of $114,900.00 leaving a gap of $21,696.00. Potentially, there would be a Skills For All payment of $14,673.00 leaving a final gap for the student to pay of $7,023.00. However, that was a best case scenario. Johnston explained that the gap could be up to $21,696.00 if no Skills For All was paid. The students were shown a slide headed “current state” which said “if 5 students pass and 15 fail, BHFS makes a $968,347 profit for doing nothing”.

    [48] Ex 2, FFST174 p 730 – 749.

41. Johnston explained an offer to the students which involved the student withdrawing from the Advanced Diploma, the gap amount being totally waived, credits being received which were valid at the School for two years, and the student receiving 50% of the Skills For All funding received for units completed. Students were told that they had until 22 June 2015 to work out how they wished to proceed. If they were interested in the offer then they were told to book a meeting with Blake. Students were under no obligation to take any course of action and were told to take their time and do what works for them.

42. On 16 March 2015, Johnston wrote to students reminding them of the offer. The email said:

    If you intend on taking up the BHFS credits offer but do not complete the paperwork by COB 22 June 2015, the offer lapses. You will then receive a pass or fail on the Advanced Diploma of Management, and you will be liable for the funding gap as per your individual calculation.

43. On 27 March 2015, the Chief Flying Instructor, Mark Bennett wrote to the students referring to the February meeting and saying:

    In the time since the meeting we have intentionally reduced the workload/flying time to allow time to consider the options and make a decision. We are now reaching a time where we will need to assume that you are continuing on the course unless you have informed us otherwise. This will mean the company will resume making bookings for training sessions and flights in accordance with your notified availability. This will also mean that by the completion date in late June, you will become liable for outstanding course fees.

44. On 11 May 2015, Johnston wrote to the remaining Advanced Diploma students advising that this was a second reminder in regard to the offer and that all paperwork must be completed by 22 June 2015 as the course formally completes on 23 June 2015. He said:

    If you intend on taking up the BHFS Credits offer but do not complete the paperwork by COB 22 June 2015, the BHFS Credits offer lapses. You will then receive a pass or fail on the Advanced Diploma of Management, and you will be personally liable for the funding gap as per your individual calculation.

45. Of the 20 students remaining in the course as at the February 2015 meeting, 17 accepted the credits offer. Coombs, Sooaemalelagi and Mr Hayden Cutts were the only three students who did not accept the offer.

46. On 25 June 2015, Johnston advised Coombs that the course had finished on 23 June 2015 and issued him with an invoice for his funding gap of $26,340.00.

47. Sooaemalelagi was also issued with an invoice on 25 June 2015 for her funding gap of $14,482.

48. On or around 13 July 2015 the School sent to the Applicants a results notice listing 15 theory units and 1 flight training unit and recording “competency not achieved/fail” against each unit. In October 2016 the School re-issued notices to the Applicants “with all internal units listed.”[49]

    [49] Ex 2, ST16 p 503.

    WHAT WERE THE REQUIREMENTS FOR THE ADVANCED DIPLOMA?

1. With respect to the progress issue, I consider that it was the responsibility of the School to progress students through the course at the rate required to complete the Advanced Diploma before the end date. If a student was not advancing at the required rate then the student should have been informed so that any available steps could be taken to remedy the situation. As at the date of the February meeting it was apparent that the School had not progressed her through the course as required to enable her to complete in time. Further, the School had not informed her of her lack of progress and had not warned her that she was in danger of not completing the course in time. If she had been warned before the February meeting then she could have made arrangements for remedial lessons to be purchased to enable her to complete her flight training for the CPL and command instrument rating, if that was what was required.

2. In this case, Sooaemalelagi was not told that she was not progressing as required until the February 2015 meeting which was held in the 14^th month of the 18 month course. She was then given no plan or timetable for the balance of the course and very little was done to progress her through to completion. In other words, having finally notified her of the problem, nothing was done to remedy it. If anything, things got worse because her flights were restricted to a period from 2 April to 22 May 2015 and no tutorials or assistance was provided to enable her to progress with ATPL. I find that the School was to blame for her lack of progress and I reject the School’s assertion that she fell behind due to her own incompetency.

   Was the School entitled to cease offering flights?

3. Next I consider whether the School was entitled to cease offering flights once allocated hours had been exhausted. I find that it was not. The first issue in this regard is whether there was a cap on the number of hours allocated to each student. I find that there was no cap because Norris said that if a student needed more than the 200 hours allocated then the School had to “wear that” because it was a fixed price course, unless a decision was made to fail the student which did not happen here. Further, there is nothing in the DFEEST Curriculum Document or the Learning and Assessment Strategy Document that suggests that the flight training in the Advanced Diploma was limited to a number of hours.

4. If the School had some internal policy of limiting students to 200 hours of flight training then students should have been informed of this when enrolling. This is the second issue in this regard. Sooaemalelagi was told for the first time in May 2015 that she had exhausted her allocated hours because she had failed to progress through her flight training at the expected rate. It was entirely unreasonable to apply a cap to students without any warning that flying hours were limited. It was particularly unreasonable for the School to cease offering flights to Sooaemalelagi when there was four weeks left of the course to run and she was close to achieving her CPL.

   Failure to properly structure the course

5. The issues with respect to progress and allocated hours would not have arisen if the course had been properly structured and delivered with students being made aware of what was being offered and when. For example, one would expect students to be informed that they had to pass a PPL flight test and then a CPL flight test on or before certain dates and after having been delivered a maximum amount of flight training hours. The same would apply for the delivery of the theory modules. Students should have been informed that in order to complete the ATPL theory component of the course then they should have completed the PPL and CPL components by certain dates. Students would then have been aware of how they were progressing and what they needed to do to achieve benchmarks during the course. There was no such structure and as a result Sooaemalelagi did not know that she was behind or that she had exhausted her flight training hours until it was too late.

   Was Sooaemalelagi’s failure to complete the course beyond her control?  

6. As to the assertion of incompetence and whether this was the cause of Sooaemalelagi not being able to complete the course in time, I do not consider that the School has established on the balance of probabilities that she was incompetent although, I acknowledge that it is difficult to make any finding on this topic on the material provided. Suffice it to say that she managed to complete all her training so as to become a commercial pilot in a reasonable time after the Advanced Diploma and her later instructor, Ken Howlett, gave evidence that she was an astute and intelligent pilot. Further, the evidence from Bennett was that Sooaemalelagi had the capability to finish the qualification but not within the required time and resources. This suggests that if the School had delivered the course without the mentioned delays then Sooaemalelagi could have finished in time.

7. It was not the fault of Sooaemalelagi that she did not finish the course; to the contrary, the fault lies with the School and the new owners who took over management from April 2014 but who failed to maintain the standard of tuition of the previous owner. The School failed to comply with its own guidelines found within the Learning and Assessment Strategy Document and failed to deliver the requirements for the course based on the DFEEST Curriculum Document or the Learning and Assessment Strategy Document. Students were entitled to expect regular group tutorials, internal assessments and flying lessons, but they were not delivered. As a consequence of this conduct of the School, students fell behind in terms of their progress through the course and it became impracticable for Sooaemalelagi to complete the course in time. The fact that the majority of students had fallen behind as at the February 2015 meeting such that they were unlikely to be able to finish the course in time provides a very strong indication that the lack of progress was not due to the students but was rather due to a failure by the School to deliver the requirements for the course.

8. Because the School failed to deliver the requirements of the Advanced Diploma, it became impracticable for Sooaemalelagi to complete those requirements. Sooaemalelagi’s failure to complete the course was beyond her control because it was the School which failed to deliver the course to her thereby causing her to not complete the course.

   Conclusion for Sooaemalelagi

9. In summary, the circumstances that together made it impracticable for Sooaemalelagi to complete the course in time were:

   (a)the general lack of structure and poor delivery of the course following the change in ownership and management in April 2014 which included:

   (iii)the delay in providing Sooaemalelagi appropriate tutorials for CPL theory until 20 November 2014;

   (iv)the failure of the School to provide Sooaemalelagi with appropriate details of her progress or to give appropriate and timely warnings regarding any lack of progress.

   (b)the failure of the School to provide any flights to Sooaemalelagi from 15 February to 2 April 2015;

   (c)the failure of the School to provide any theory tuition after the February 2015 meeting including tutorials or assessments with respect to ATPL theory and the balance of the “Other” modules;

   (d)the decision of the School to cease providing flight training as part of the Advanced Diploma from on or around 22 May 2015.

10. The above circumstances considered as a whole constitute special circumstances that applied to Sooaemalelagi and were beyond her control and made it impracticable for her to finish the requirements for the Advanced Diploma. The circumstances up to 20 November 2014 on their own did not make it impracticable for Sooaemalelagi to finish the course in time but when added to the circumstances after the February 2015 meeting the circumstances had the requisite causative effect.

    FURTHER SPECIAL CIRCUMSTANCES THAT APPLIED TO COOMBS

11. From February 2014 Coombs experienced difficulties in the area of flight navigation. Coombs was grounded from 25 March 2014 until his flight lessons recommenced on 25 August 2014. The reason for this break in flight lessons was that Coombs had attempted his first CASA theory exam for his PPL on 11 April and 24 April 2014 and had failed both times. The School decided, based upon its policy, that Coombs should not undertake any further solo flights until he had passed the CASA PPL exam. Coombs eventually passed the CASA PPL theory exam on 11 August 2014. In a letter from the School to Coombs dated 18 November 2014 Blake explained:

    It is a requirement of BHFS Operations Manual that before a trainee pilot can undertake solo cross country flying they are required to have passed the CASA PPL written exam. This is a benchmark test is to ensure that the student has adequate knowledge to operate independently and safely during their flight training. On two occasions you attempted the test and failed. The situation faced is that a third failed attempt would result in a 3-month delay before being able to re-test for a fourth time. If a fourth attempt is needed and the student fails then they are no further chances. This made it essential to avoid delay that the third attempt was to result in a pass. BHFS’s policy in this situation is to ground the pilot from any further flight training. The flight training phase only to resume after successful completion of the PPL written examination. This grounding is designed to give the student every opportunity to ensure they pass.

12. When Coombs resumed his flight lessons on 25 August 2014 he continued experiencing difficulty with his navigation exercises. On 22 September 2014, Coombs was issued with a formal note written by Bennett as the chief flying instructor at the School, which recorded that after a series of remedial flights he was failing to make satisfactory progress with his PPL navigation exercises and the flight instructor expressed concerns about his ability to safely conduct any solo flight. On 3 October 2014 Blake wrote to Coombs advising that he was not meeting the requirement of satisfactory completion of the course. A further formal note was issued by Bennett on 8 October 2014 recording that Coombs acknowledged that his progress with navigation training was poor however he felt that this was largely attributable to the way some of his recent lessons were conducted by one of his instructors.

    Request by Coombs for flights and a timetable in November 2014

13. On 15 November 2014, Coombs wrote by email to Blake expressing his concern that he was only flying once a week and his course finishes in June 2015 and that he will not finish in time at this rate. He asked for some sort of timeline and schedule. Blake responded by letter dated 18 November 2014 advising that the School had become increasingly concerned that there may be insufficient time remaining to complete all the modules and units in the Advanced Diploma and that:

    Since the resumption of flight training there have been two modules of remedial training conducted. These have not progressed to a fully satisfactory standard, however some improvement is evident but there is still need for further consolidation training and remedial flying. Also, it was discussed that flight training continuity is important and could be a factor in the slow improvement. In order to try to improve this BHFS will endeavour to try to provide a suitable flight instructor and to try to achieve a minimum of 2 flights per week (subject to weather and other operational requirements). I will ask Mark Bennett to organise this series of flights culminating with a further progress report. This he will send to you directly.

14. Coombs accepted that he had difficulty with his navigation exercises which meant that he needed more practice before flying solo. Bennett confirmed by email to Coombs dated 20 November 2014 that he had scheduled five remedial PPL navigation exercises and that he had determined that all the exercises should be conducted by a senior flight instructor and should be scheduled at a rate of at least two per week. Coombs responded by email on 22 November 2014 advising that “the schedule is great thank you”.

    Failure by the School to deliver flights or a timetable

15. The flight records for Coombs show that he received three flights in December, three flights in January, two flights in February and one flight in May 2015. This fell significantly short of the promised two flights per week. Blake was asked in evidence why Coombs was not given 2 flights per week and he said: [68]

    Mr Bennett was in charge of scheduling this training and I believe at the time it was limited to who could be used to train Mr Coombs. We were trying to get either Mr Bennett to try to fly with him or Mr Craig Nairn. So their availability would have limited the times and I can’t see what weather impact on the days Mr Coombs was available may or may not have had.

    [68] Transcript (25 October 2018) p 76.

16. Despite his request, Coombs received no further timeline or schedule with respect to flights or theory tuition.

    Coombs’ difficulties with navigational training and theory

17. Bennett gave evidence that Coombs had demonstrated no ability to do solo navigation flights and that he was a long way away from completing the PPL requirements. They discussed with him options of a partial completion of the course but Coombs was of the view that he could finish.

18. On 27 January 2015 Bennett conducted an assessment as the chief flying instructor due to Coombs’ unsatisfactory progress through navigational training to date. Bennett concluded that Coombs was unsafe on solo flights and that a further check flight was required. Bennett made an assessment of Coombs on 10 February 2015 and said:

    My belief that Nigel may not be able to achieve the standard required to obtain a PPL was stated in the debrief. Nigel is determined to continue training and believes he will get better with practice.

19. With respect to the difficulties that Coombs was having with navigational training and the view expressed by Bennett after the 10 February 2015 flight that he may not be able to achieve a PPL, Blake gave evidence that failing Coombs was not in the interest of him as a student. Blake went on to say: [69]

    We didn’t believe we had a safety issue or anything like that, so we felt we would be best served by trying to progress as far as we can to deliver as much training as we could. That was the decision at the time.

    [69] Transcript (25 October 2018) p 114.

20. With respect to theory, Coombs had completed the CPL theory subjects that were offered  online through Ron Newman. In November 2014 he attended tutorials with Moore. He passed a CASA CPL theory exam in General Aircraft Knowledge in November 2014. He then failed the CASA CPL theory exam in Meteorology.

    Coombs’ part time job

21. Coombs had a part time job driving a truck but he said that did not impact his availability to fly. Bennett said that it was a factor that made it difficult to schedule flights. Coombs started working one day a week as a truck driver in March 2014 and then after October 2014 he increased it to three or four days per week because the course was not being delivered. He did not let it affect his studies. The School provided no probative evidence that Coombs’ work commitments had a negative impact on his availability for flight training.

    Further requests by Coombs for flights and a timetable in February and March 2015

22. Coombs attended the student meeting on 18 February 2015 but never expressed any interest in the credits offer and continued to ask for flights after the meeting. He was only provided with two further flights – the first on 25 February and the second on 18 May 2015.

23. As at the date of the February 2015 meeting Johnston considered that Coombs was not in a position to finish the course in time. On 25 February 2015 Coombs met with Bennett and Blake to discuss his progress with the object of moving him forward. Bennett told Coombs again that he did not think he would obtain his licence. Coombs felt under pressure to withdraw from the course and accept the credits offer.

24. Coombs continued to ask for flights to be scheduled in March 2015. Johnston told him that flights were not available due to plane maintenance issues. Johnston accepted in evidence in chief that Coombs telephoned him to complain about not getting flights. 

25. On 27 March 2015, Bennett wrote to the students including Coombs saying: [70]

    In the time since the meeting we have intentionally reduced the workload/flying time to allow time to consider the options and make a decision. We are now reaching a time where we will need to assume that you are continuing on the course unless you have informed us otherwise. This will mean the company will resume making bookings for training sessions and flights in accordance with your notified availability. This will also mean that by the completion date in late June, you will become liable for outstanding course fees.

    [70] Ex 2, FFST90 p 158.

26. Coombs was not happy. He wrote to Johnston on 29 March 2015 referring to the fact that he had not flown for a month again and that he was really angry about the delivery of the course. [71] He confirmed his request for a schedule and timeline with regard to his flying. He said:

    I want a clear written plan and schedule to achieving this outcome as discussed over the telephone. … I just want to achieve what I came down here to do and that’s to become a commercial pilot.

    [71] Ex 2, FFST93 p 161-163.

    Further failure by the School to deliver flights and a timetable

27. The response from Johnston was to continue to press Coombs to accept the offer to withdraw from the course. Johnston said in his responding email: “if you accept the BHFS Credits offer … just ring Nat for your next booking.” Coombs felt that no flights were being given until the offer was accepted. Despite making his intention clear that he did not wish to accept the offer and withdraw from the course, Coombs was provided with agreements to sign dated 22 April 2015 and 26 April 2015 together with a printout recording the cost of all his flight training up until 23 April 2015. He was told that the net funding gap as at 26 April 2015 was $21,084.

28. On 11 May 2015 Johnston wrote again to the remaining students providing a second reminder in regard to the credits offer which had to be accepted by 22 June 2015.  Coombs continued to ask for flights by approaching Blake, Johnston, Bennett and Natalie McAllister. Finally he was able to schedule one flight on 18 May 2015.

29. Shortly after this final flight, Coombs had his last meeting at the School with Blake who said “Sign the bloody contract. You are not going to win.” Coombs left and never came back.

    13 out of 58 core modules delivered to Coombs

30. The results produced by the School record that Coombs completed 13 modules in total being two modules in the flight training phase (completed on 16 December 2013 and 16 February 2014) and 11 PPL theory modules (completed on 11 August 2014 when the CASA exam for the PPL theory was passed). [72] With respect to flight training, Coombs is recorded as having not advanced beyond the requirements for navigation in the PPL stage and he never attempted the PPL flight test, the CPL flight test or the command instrument rating flight test. In summary, Coombs was delivered and successfully completed 13 out of the total of 58 core modules which made up the Advanced Diploma syllabus. None of the Block 3 modules were delivered to him.

    DID THE CIRCUMSTANCES THAT APPLY TO COOMBS MAKE IT IMPRACTICABLE FOR HIM TO COMPLETE THE REQUIREMENTS FOR THE ADVANCED DIPLOMA AND WERE THOSE CIRCUMSTANCES BEYOND HIS CONTROL?

    [72] Ex 2, FFST168 p 588.

31. Circumstances that make it impracticable for a person to complete the requirements for a VET unit of study may include course related circumstances, for example, where the VET provider has changed the unit of study it had offered and the person is disadvantaged by not being able to complete the VET unit of study.[73]

    [73] Ex 2, FFST171 p 646 VET Information p  54.

1. The example of course related circumstances in the VET Information is apposite because the School after the change in management changed the course offered by no longer providing to Coombs timely tutorials and assessments in the theory component of the course and sufficiently regular flights in the practical component of the course. Coombs was thereby disadvantaged by falling behind and not being able to complete the Advanced Diploma. These course related circumstances would be considered beyond the control of Coombs because they are not his responsibility and are not due to his action or inaction. I will expand on this below.

2. There was a marked change in the way the theory component of the course was delivered after the new owners took over in April 2014. There were no longer any regular group tutorials or feedback sessions except for some administered by Bennett in May or June and by Moore from 20 November 2014 until in or around early February 2015. The process of submitting online assessments was discontinued and students were told that a pass in the CASA theory exams would satisfy the requirements of the theory components of the Advanced Diploma.

   Early circumstances not beyond control

3. As at the date of the change in management in April 2014 Coombs was experiencing difficulty with both the theoretical and practical components of the course. He had problems with flight navigation and he had failed the CASA PPL theory exam on 11 April and 24 April 2014. These difficulties cannot be blamed on the new owners who had not taken over at this stage. Coombs makes no complaint with respect to how the course was delivered by the previous owner. It follows that these early circumstances would not be considered beyond his control.

4. Coombs was not given any further flights whilst he studied for his CASA PPL theory exam which he eventually passed on 11 August 2014. This was a further circumstance that was not beyond his control. Coombs’ difficulties with flight navigation continued when he resumed flying on 24 August 2014 and the School issued him with formal notes in September and again in October 2014. Coombs acknowledged the difficulties he was having at this stage and they would not be considered beyond his control.

   Delay in providing tutorials

5. The School delayed in providing a ground theory instructor until Moore commenced his tutorials from 20 November 2014. This represented an unnecessary three month delay for Coombs from the date he passed the CASA CPL theory exam until the tutorials for the CPL began. This delay of three months was beyond Coombs’ control.

   Failure of the School to deliver flights

6. On 15 November 2014, Coombs wrote by email to Blake expressing his concern that he was only flying once a week and his course finishes in June 2015 and that he will not finish in time at this rate. He asked for some sort of timeline and schedule. The School responded by advising him that he would receive at least two flights per week. Through no fault of Coombs, these promised flights did not eventuate. Coombs pleaded for further flights and a timetable for the balance of the course on numerous occasions in February and March 2015. Coombs only received a further nine flights in total from 15 November 2014 which included a 12 week period from 25 February until 17 May 2015 when no flight training was delivered.

7. The School took the view with some students including, Sooaemalelagi, that they had exhausted their allocated flying hours by reaching a cap of approximately 200 hours. However, this did not apply to Coombs who only received a total of approximately 90 hours. Blake’s evidence was that there was no safety issue with respect to Coombs and that after the February 2015 meeting with the students, the School decided to deliver as much as possible of the course to him. I find that the School made no effort to deliver as much of the course as possible. I find that there was no valid reason for not delivering more flight lessons or to continue with tutorials and assessments in the period after the February meeting.

   Was Coombs’ failure to complete the course beyond his control?

8. The Department (and the School) took the view that the cause of Coombs not completing the requirements for the Advanced Diploma was his inability to navigate during the flying lessons and the difficulties he faced in the technical examinations. The Department also took the view that Coombs’ inherent characteristics are something that he was responsible for and are not circumstances that are ‘unusual, uncommon or abnormal’.

9. There is no doubt that Coombs struggled with the theory and practical components of the course. However, one would assume that these struggles could have been addressed, at least partially, if he had been receiving regular tutorials, feedback, assessments and flight training. The School has not established on the balance of probabilities that Coombs was incapable of completing the Advanced Diploma. Coombs believed that with appropriate and timely training that he could have finished the course. Bennett disagreed. The evidence is insufficient to conclude one way or the other and I can only speculate as to whether Coombs could have completed the requirements for the Advanced Diploma.

10. However, the evidence does establish that the School failed to deliver flight training and theory tutorials and assessments as regularly as promised or expected. This failure by the School is particularly apparent in the four month period after the February 2015 meeting when Coombs only received two flights and no tutorial assistance or assessments. Because the School failed to deliver the requirements of the Advanced Diploma, it became impracticable for Coombs to complete those requirements. Coombs’ failure to complete the course was beyond his control because it was the School which failed to deliver the course to him thereby causing him to not complete the course.

11. If the School had acted in accordance with its obligations and its alleged intention then Coombs would have been offered flights at least up to its internal cap of 200 hours and Coombs would have been offered regular tutorials and internal assessments in the period following the February 2015 meeting.

12. It was not the fault of Coombs that he did not finish the course; to the contrary, the fault lies with the School and the new owners who took over management from April 2014 but who failed to maintain the standard of tuition of the previous owner. The School failed to comply with its own guidelines found within the Learning and Assessment Strategy Document and failed to deliver the requirements for the course based on the DFEEST Curriculum Document or the Learning and Assessment Strategy Document. Students were entitled to expect regular group tutorials, internal assessments and flying lessons, but they were not delivered. As a consequence of this conduct of the School, students fell behind in terms of their progress through the course and it became impracticable for Coombs to complete the course in time. The fact that the majority of students had fallen behind as at the February 2015 meeting such that they were unlikely to be able to finish the course in time provides a very strong indication that the lack of progress was not due to the students but was rather due to a failure by the School to deliver the requirements for the course.

    The extent of the School’s failure to deliver the course

13. The results produced by the School record that Coombs only completed 13 modules out of the 58 core modules.[74] I note that the School made no arrangements for the delivery to Coombs of any of the modules described as “Other”. The evidence as a whole establishes a failure by the School to deliver a significant amount of the course components. I find that this failure was a course related circumstance which was beyond Coombs’ control and which made it impracticable for him to complete the requirements for the Advanced Diploma.

    [74] Ex 2, FFST168 p 588.

    Conclusion for Coombs

14. In summary, the circumstances that together made it impracticable for Coombs to complete the course in time were:

    (a)the general lack of structure and poor delivery of the course following the change in ownership and management in April 2014 which included:

    (i)the delay in providing Coombs appropriate tutorials for CPL theory from the end of August 2014 until 20 November 2014;

    (ii)the failure of the School to provide Coombs with appropriate details of his progress or to give appropriate and timely warnings regarding any lack of progress with respect to the theory component of the course; and

    (iii)the failure of the School to provide Coombs with any appropriate timetable or schedule for flight training or theory components of the course.

    (b)the failure to provide regular or sufficient flights to Coombs from November 2014 despite the promise of at least two flights per week and despite the School’s internal allocation of 200 hours of flights for each student; and

    (c)the failure of the School to provide any theory tuition after the February 2015 meeting including tutorials or assessments with respect to ATPL theory and the balance of the “Other” modules.

15. The above circumstances considered as a whole constitute special circumstances that applied to Coombs and were beyond his control and made it impracticable for him to finish the requirements for the Advanced Diploma. The circumstances up to 20 November 2014 on their own did not make it impracticable for Coombs to finish the course in time but when considered with the irregular flights from December 2014 and the failure to continue to deliver the course after the February 2015 meeting the circumstances had the requisite causative effect.

    DECISION

16. I am satisfied in terms of clause 48 of HESA Schedule 1A that circumstances apply to each Applicant that:

    (a)were beyond each Applicant’s control,

    (b)did not make their full impact on each Applicant until after the census date for each Applicant; and

    (c)made it impracticable for each applicant to complete the requirements for the Advanced Diploma in the period during which each Applicant undertook the course.

17. I am satisfied that special circumstances as referred to in clause 46(2)(c) of HESA Schedule 1A apply to each of the Applicants.

18. I find that the amount of VET FEE-HELP assistance received by each Applicant should be re-credited.

19. I set aside the decision made on 13 December 2016 with respect to Sooaemalelagi and substitute a decision that her VET FEE-HELP balance be re-credited.

20. I set aside the decision made on 28 May 2016 with respect to Coombs and substitute a decision that his VET FEE-HELP balance be re-credited.

I certify that the preceding   two hundred and ninety-two (292) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

..................[sgnd]..............................

Administrative Assistant Legal

Dated:  19 November 2019    

Dates of hearing (19):  2 – 6 July 2018
  9 – 12 July 2018
  3 – 5 September 2018
  25, 26 & 29 September 2018

30 October 2018

12 – 14 December 2018.

Applications 2016/2847 & 2016/6186

Applicants’ Representative:               Dr. S Brown with Ms F Sooaemalelagi and Mr N Coombs

Respondent’s Representative:          Mr L Holcombe, HWL Ebsworth Lawyers

Other Party’s Representative:           Mr D Johnston and Mr D Blake