Crisp and Secretary, Department of Education and Training

[2019] AATA 5295

Crisp and Secretary, Department of Education and Training [2019] AATA 5295 (9 December 2019)

Division:GENERAL DIVISION

File Number(s):      2016/2272

Re:James Crisp

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

AndBruce Hartwig Flying School

OTHER PARTY

DECISION

Tribunal:Deputy President P Britten-Jones

Date:9 December 2019

Place:Adelaide

The Tribunal sets aside the decision made on 22 April 2016 and substitutes a decision that Bruce Hartwig Flying School, on behalf of the Secretary of the Department of Education and Training, re-credits Mr Crisp’s 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.

.................................[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 applicant’s 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 applicant’s control and made it impracticable for the applicant to complete the course requirements in time –– decision under review set aside and substituted with a decision that the Applicant’s 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)

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

VET Administrative Information for Providers 2013

REASONS FOR DECISION

Deputy President P Britten-Jones

1. In 2013, the applicant, James Crisp (“Crisp”), enrolled in an Advanced Diploma of Aviation (“the Advanced Diploma”) taught by the Other Party, the Bruce Hartwig Flying School (“the School”).  Crisp obtained a loan to assist him to pay the fees charged by the School and he is now indebted to the respondent for the amount of the loan.  It is this loan that is the subject of the application before the Tribunal.  

2. Crisp applied to the School to have his debt remitted under the Higher Education Support Act 2003 (Cth) (“HESA”) on the basis that “special circumstances” applied to him. The School refused the application, and an internal review affirmed the decision. He has applied to the Tribunal for review of the decision.

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

   (a)Legislative framework for financial assistance to students (paragraphs 4 to 16)

   (b)The issues for determination (paragraphs 17 to 29)

   (c)Some uncontroversial events during the Advanced Diploma  (paragraphs 30 to 43)

   (d)What were the requirements for the Advanced Diploma?  (paragraphs 44 to 59)

   (e)Evidence (paragraphs 60 to 113)

   (f)Contentions of the parties (paragraphs 114 to 115) 

   (g)The special circumstances that applied to Crisp (paragraphs 116 to 134)

   (h)Did the special circumstances make it impracticable for Crisp to complete the requirements for the Advanced Diploma and were those circumstances beyond his control? (paragraphs 135 to 146)

   (i)Decision (paragraphs146 to 150).

   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. HESA 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” [1] which extended FEE-HELP assistance to full-fee-paying students in Diploma and Advanced Diploma courses that are accredited as vocational education and training (“VET”) qualifications.

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

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 VET courses.[2]  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.

   [2]   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.[3] Second, if the VET provider is satisfied that special circumstances apply to the student.[4] 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:

    [3]   Clause 51.

    [4]   Clause 46(2).

    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:

    …

    (b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and

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

    …

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.

12. A refusal to re-credit a person’s FEE-HELP balance under clause 46(2) may be reviewed internally under clause 96 and a further review to the Tribunal is available under clause 97.

    VET Administrative Information for Providers (November 2013)

13. The respondent has prepared the VET Administrative Information for Providers 2013 (“VET Information”)[5] 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.[6]

    [5] Ex 1, T30 p118 – 215.

    [6] 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.

14. 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.[7] 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.

    [7] Ex 1, T30 p 132.

15. The VET Information provides that a person may apply to the VET provider for a re-credit of their FEE-HELP balance if they withdraw from their VET unit of study after the census date or the person has not completed the requirements for the VET unit of study.[8]  There is no dispute in this case that Crisp withdrew and did not complete the requirements for the VET unit of study.  There is no dispute that Crisp applied for the re-credit within the 12 month period[9] after he withdrew.

    [8] Ex 1, T30 p 169.

    [9] See clause 49 of HESA Schedule 1A.

16. 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:

    ·…

    ·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

17. For Crisp 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 Crisp arose after the School changed hands on 23 April 2014 which postdates the census date for Crisp.

    Special Circumstances

18. 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[10] and there must be something that distinguishes the case from the ordinary or usual case.[11] 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).

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

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

    Beyond control

19. With respect to the first element contained in clause 48(a), I must be satisfied that the relevant circumstances were beyond the control of Crisp. If Crisp could have exerted some influence so as to reduce the impact of those circumstances then they may not be considered beyond the control of Crisp. 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.[12] 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.

    [12]  Ex 1, T30 p 52.

    Impracticable to complete

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

21. 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. There is no dispute that Crisp did not complete the course.  The issue is what caused him to not complete it.

22. 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 finishing on 4 June 2015.[13]  This was later extended to 23 June 2015. Consequently, the circumstances must have made it impracticable for Crisp to complete the requirements for the Advanced Diploma by on or before 23 June 2015.

    [13]  Ex 1, T11 p 93, Commonwealth Assistance Notice.

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

24. 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[14] 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.

    [14] (1984) 10 Fam LR 56, 64.

25. In the employment context in Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia,[15] 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.

    [15] [2017] WASCA 86 [84].

26. Further, Kenneth Martin J said:[16]

    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.

    [16] Ibid [148].

27. As stated, the issue for determination is whether there were special circumstances that made it impracticable for Crisp 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 Crisp’s participation in the Advanced Diploma. This requires a factual evaluation and assessment with respect to Crisp as to whether those circumstances made it impracticable to successfully complete the course in time. If the School failed to deliver the course in time, then that would be a circumstance which would make it impracticable for Crisp to complete the course. This is reflected by the reference to “course related circumstances” in the VET Information.

    Impracticable and beyond control – a cumulative approach

28. 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.  

29. 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 Crisp to complete the course; and

    (ii)were beyond the control of Crisp.

    SOME UNCONTROVERSIAL EVENTS DURING THE ADVANCED DIPLOMA

30. As at December 2013, about 24 students were enrolled in the Advanced Diploma. Four of those students withdrew before the census date.  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.

1. Crisp enrolled in the Advanced Diploma to be undertaken full-time over 78 weeks commencing on 4 December 2013 and finishing on 4 June 2015.  The course census date was 24 February 2014.[17] Crisp’s schedule of VET tuition fees[18] 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.

   [17] Ex 1, T11 p 93 Commonwealth Assistance Notice.

   [18] Ex 1, T6 p 82.

2. As will be mentioned in more detail below, the course comprised theory and practical components and was delivered in three main blocks comprising the private pilot licence (“PPL”), the commercial pilot licence (“CPL”) and the air transport pilot licence (“ATPL”). A record from the School[19] showed expected completion dates for these blocks.  The course did not include flight training for the ATPL.

   [19] Ex 3, FST17 p 38.

3. On 23 April 2014 the School changed hands from Greg Norris (“Norris”) to a company controlled by David Blake (“Blake”) and David Johnston (“Johnston”), who then took over the management of the School.

4. 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.” [20]

   [20] Ex 2, FST3 p 162.

5. 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 (“Moore”). He commenced a series of structured tutorials to assist students with the theory needed to pass the Civil Aviation Safety Authority (“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.

6. On 9 February 2015 Johnston wrote to the respondent and said: [21]

   [21] Ex 3, FST7 p 11 -12.

   “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. This is due largely to:

   ·students not studying full-time and falling behind in their flying due to other commitments

   ·some students struggling with the difficulty level of the course

   ·most students being unable to fund the gap cost of the VET funding and the course cost of $114,900 that they signed up for.

   … We have devised an alternative that your opinion is sought 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.

7. The respondent replied on 14 April 2015 saying that the approach outlined seemed fair. [22]

   [22] Ex 3, FST7 p 10 - 11.

8. 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.[23] 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”.  Two examples were given, both of students who did not finish the course in time and received no qualification but were liable to pay a funding gap of $12,101 and $14,517 respectively.

   [23] Ex 2, ST139 p 400 - 419.

9. Johnston explained to the students the offer 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 (“the Credits Offer”). Students were provided with a draft agreement (“the Confidential Agreement”) and 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.

10. 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.

11. Crisp met with Johnston and then signed the Confidential Agreement on 17 March 2015 with BHFS Credit Calculation attached.[24]  The calculation showed a net funding gap of $11,920 which was waived under the Confidential Agreement.  Crisp completed the appropriate form[25] to withdraw from the Advanced Diploma on the same day.

    [24] Ex 11.

    [25] Ex 1, T23 p 106 – 107.

12. On 27 March 2015, the Chief Flying Instructor, Mark Bennett wrote to the students referring to the February meeting and saying: [26]

    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.

    [26] Ex 1, T27 p 113.

13. Crisp had no flights between 21 January and 3 March 2015.

    WHAT WERE THE REQUIREMENTS FOR THE ADVANCED DIPLOMA?

14. There is conflicting documentary evidence before the Tribunal as to the subjects (known as modules) taught as part of the Advanced Diploma and in particular whether there were 16 modules or up to 58 modules.  The issue as to course content is relevant because clause 48(c) refers to completing “the requirements for the unit”.  It is therefore necessary to determine what were the requirements for the Advanced Diploma.

    The Accredited Curriculum – the DFEEST Curriculum Document

15. The curriculum for the Advanced Diploma, as accredited by the Department of Further Education, Employment, Science and Technology (South Australia), was contained in the curriculum document (“DFEEST Curriculum Document”).[27] A copy of the DFEEST Curriculum Document was not provided to the students.

    [27] Ex 3, FST23 p 266 – 390.

16. The DFEEST Curriculum Document for the Advanced Diploma listed 15 theory modules and one flight training module. The listed theory modules comprised only ATPL subjects and did not list any PPL, CPL or command instrument rating subjects. The flight training module comprised the command instrument rating and did not list any flight training associated with PPL or CPL. The fact that the accredited curriculum only included ATPL theory subjects and command instrument rating flight training created some confusion as to the content of the course, an issue that was later considered by the regulator, Australian Skills Quality Authority.

17. The DFEEST Curriculum Document provided that the assessment used throughout the course would consist of the continuous appraisal of all students by projects, tests and examinations to demonstrate competency. The students’ level of skills and knowledge would be measured separately of both practical and theoretical work. With respect to the practical component of the course, flying skills would be assessed continually throughout each module to ensure that the essential basic skills have been acquired and safe operation is ensured. Written and oral tests would be used to supplement observation of flying skills. With respect to the theory component of the course, written tests, oral presentations, role plays and research projects would be used as required throughout each module to determine the level of the student’s knowledge and also to provide feedback to them regarding their progress. Each module would have a final examination. Where required, students would undertake CASA examinations.

18. Part C of the DFEEST Curriculum Document provided detailed information with respect to each of the 16 modules including purpose, prerequisites, content, assessment strategy and learning outcome details. Each module listed prerequisites. For example, Meteorology 2 was a prerequisite for Meteorology 3. In the course information section of the DFEEST Curriculum Document it said that the Advanced Diploma was targeted at the ATPL and that the course would be delivered following the Certificate IV in Aviation (Commercial Pilot Airplane Licence) AVI40108 and the Deployment of Aviation (Instrument Flight Operations) AVI50408.

    The Learning and Assessment Strategy Document

19. The content of the course delivered to students was based on an internal document (not provided to students) entitled “Learning and Assessment Strategy 15725SA Advanced Diploma of Aviation” (“Learning and Assessment Strategy Document”).[28] It provides a useful summary of the aims of the course:

    Course Aim

    The Advanced Diploma of Aviation 15725SA is designed to provide students with the skills and knowledge necessary for employment within the aviation industry as aircraft flight crew, including operations under the Instrument Flight Rules (IFR) and with progression to multi crew air transport operations. This qualification has been structured to align with applicable aviation licensing and regulatory requirements however additional requirements in line with current Civil Aviation Regulations apply before a licence can be issued.

    On successful completion of the Advanced Diploma students will be eligible to hold a Commercial Pilot Licence and Instrument Rating. Students will also have completed all examinations required and administered by the Civil Aviation Safety Authority (CASA) for the Air Transport Pilot Licence. Units of study aimed at preparing students for employment within the aviation sector and meeting employer’s expectations are also undertaken.

    [28]  Ex 3, FST21 p 255 – 264.  

20. With respect to the content of the course being delivered by the School, the Learning and Assessment Strategy Document provided:

    The qualification requires a successful outcome for the 58 Core Units, and at least 2 of the 8 Elective Units (equivalent to a nominal 40 hours). Units are clustered into 3 training blocks for delivery and assessment. Elective units may be completed in any block.

    In addition it is a requirement that students pass the theory and practical flight examinations conducted by CASA and are issued with a Private Pilot Licence on completion of block 1, Commercial Pilot Licence on completion of block 2, Instrument Rating and passes in the Airline Transport Pilot Licence theory exams on completion of block 3.

21. With respect to the delivery of training and assessment, the Learning and Assessment Strategy Document provided:

    The 58 core units and 2 elective units of competency will be clustered in 3 blocks for delivery of training and assessment. Theory and practical flight training units will be delivered concurrently.

    …

    Theory requirements of the course will be met using a combination of guided home study, group tutorial sessions, individual support and pre-and post flight briefing.

    …

    Assessment of knowledge units will include written exam results, oral questioning and completion of tasks or exercises related to pre-or post flight planning and activity. External exams conducted by CASA will form part of the required knowledge assessment.

22. With respect to duration and student progress monitoring, the Learning and Assessment Strategy Document provided:

    The course is delivered in a single semester. There are no exit points in the course and partial credit for completion of individual units is not available.

    On completion of each block of training students will undertake the required external theory or practical exams required to obtain CASA industry qualifications.

    Course delivery and scheduling of training and assessment sessions is conducted on an individual basis. Full time and part time delivery is available. Duration for full time students is normally 18 months however delays due to weather, aircraft availability, delays in processing by regulatory bodies and other operational factors may require extensions to be granted.

    Students who fail to complete all units within the specified duration (including extensions granted as above) will receive an overall fail assessment.

    The Chief Flying Instructor/Lead Trainer will approve course schedules and discuss the implications and requirements with students. Of particular concern is the ability of students to dedicate sufficient time and resources to their training to maintain the proposed schedule, and consideration of how the schedule will impact progression and costs.

    …

    The Chief Flying Instructor/Lead Trainer will monitor the progress of each student and may make recommendations in regard to required remedial study or training as required. The progressive nature of the training and the existence of multiple units with prerequisite requirements dictate that the most effective measure of progress will be the rate of progression through the units. …

    Students who are unable to achieve competency in specified prerequisite units will be unable to complete the course and will receive an overall fail assessment. This assessment will be made only after reasonable extensions and remedial training have been made available. Students will receive advice and counselling where performance and progress is not meeting expectations.

23. With respect to the CASA theory exams, there was one exam for PPL, seven exams for CPL, one exam for command instrument rating and seven exams for ATPL.

24. The Block 3 units listed in the Learning and Assessment Strategy Document were the same as the 16 modules listed in the DFEEST Curriculum Document. The majority of the Block 1 and 2 units listed in the Learning and Assessment Strategy document were described in the DFEEST Curriculum Document as prerequisites for the 16 modules listed therein.

25. Block 1 included 23 introductory theory units and three practical flight training units culminating with the PPL. Block 2 included 14 more advanced theory units and 2 practical flight training units culminating with the CPL. Block 3 included 15 theory units (known as ATPL) and one practical flight training unit, namely command instrument rating. There were eight elective units listed with a requirement to complete two of them.

26. The Learning and Assessment Strategy Document listed the resources available for training and assessment including aviation online theory (this was known as the Ron Newman material), Bob Tait training manuals and various other workbooks, guides and publications.

    The requirements for the unit

27. Clause 48(c) refers to the “requirements for the unit” which has broader connotations than merely completing the necessary modules.  I believe that the requirements for the unit are to be found by considering together the information contained in the DFEEST Curriculum Document and the Learning and Assessment Strategy Document. The requirements would include:

    (a)meeting theory requirements of the course by using a combination of guided home study and group tutorial sessions, and participating in tests, oral presentations, role plays and research projects;

    (b)undertaking a final examination and achieving a successful outcome for each of the 58 Core Units, and at least two of the eight Elective Units within the specified duration;

    (c)passing the CASA examinations for PPL, CPL, command instrument rating and ATPL;

    (d)assessment by written exam results, oral questioning and completion of tasks or exercises related to pre- or post-flight planning and activity;

    (e)dedicating sufficient time and resources to training so as to maintain proposed schedules;

    (f)complying with recommendations in regard to required remedial study or training as required.

28. The 15 (ATPL theory) modules and the command instrument rating flight training module (set out in the DFEEST Curriculum Document) are incorporated within the requirements for completion listed in the Learning and Assessment Strategy Document. Students did not require any previous flying experience before being accepted into the course. In order to prepare for the 15 (ATPL theory) modules and the command instrument rating flight training module students needed to and were expected to complete the theory and practical modules associated with the PPL and CPL.  

29. I consider that the Learning and Assessment Strategy Document (when read together with the DFEEST Curriculum Document) sets out the course that the School was obliged to deliver to the students and accurately records the requirements for the Advanced Diploma. In order to complete the requirements for the unit in the sense of clause 48(c) students had to comply with the requirements set out above including passing the 58 modules listed in Blocks 1, 2 and 3 plus a minimum of two elective units within a 78 week period.

    EVIDENCE

    Crisp

30. Crisp gave evidence as follows.

31. Crisp met with the then owner of the School, Norris, in about September 2013. Crisp told Norris that he had recently enlisted in the Australian Army Reserve and would be required to attend training over the next 18 months. Norris said that he used to be in the Army and understood the need to attend training and that the School would make allowances and give extensions on assessment dates if needed. This was confirmed at a further meeting with Norris when Crisp decided to enrol in the Advanced Diploma in November 2013.

32. On 4 December 2013 Crisp commenced the Advanced Diploma. At that time the expected end date for his studies was 4 June 2015 but that was extended later to 23 June 2015.

33. The course began with 10 weeks of online theory study with exams to be completed and submitted via email.  The online study was known as Ron Newman. Group tutorials were scheduled once a week for up to three hours.[29] A course structure was provided for the period 25 November 2013 to 3 March 2014 which set out theory topics and exam subjects.[30]  Students were given a folder which included a study guide for the PPL.[31] During this period there were weekly group tutorials and Crisp successfully completed all exams administered by the School within the scheduled period.

    [29] See letter from Norris to Crisp dated 29 December 2013 Ex 1, T8 p 84.

    [30] Ex 1, T48 p 309.

    [31] Ex 13.

34. There was a change in management of the School in April 2014 after which the quality of the course deteriorated. There were no longer any group tutorials and students were told that they were not required to do the Ron Newman online exams but instead to concentrate on the CASA theory exams which would be sufficient for the purposes of the Advanced Diploma.  Crisp purchased the Bob Tait study guides[32] to assist him to study for the CASA CPL theory exams.

    [32] See for example ex 12.

1. Crisp attended an initial training course for the Army Reserve for four weeks from 16 January 2014 and then training for two weeks from 16 May 2014. Crisp was not entirely absent from the course during these periods and could still attend to some course requirements such as the Ron Newman on line exam[33] completed on Saturday 24 May 2014. There was a further period of Army Reserve training for five weeks from 15 September 2014 which was five days a week from 8am to 5pm and sufficiently flexible to allow him to also do work in this period associated with the School.  The School was given notice of the Army Reserve training sessions and no issue was ever raised with respect to them. In particular, Crisp was never advised that his involvement and training with the Army Reserve was causing him to fall behind in the course.

   [33] Ex 2, ST46 p 89.

2. During 2014 Crisp never suspected that he may be falling behind. He was never counselled with respect to his performance and he believed that it was not an issue.

3. Although the group tutorials ceased at the time of the change in management, Crisp did receive some tutorial assistance from a flying instructor named Kingsley Sharkey (“Sharkey”) and passed his first CASA exam for PPL theory on 23 July 2014. Crisp was not made aware at the time that he was not achieving the expected completion date of 30 April 2014 for the PPL theory modules. By the end of December 2014 Crisp had only completed two out of the seven modules required for the CPL theory but again no issue was raised with respect to his progress.

4. Crisp accepted in cross examination that he received adequate guidance and tuition in theory up to the date of his CASA PPL theory exam on 23 July 2014 but not afterwards.  He said that after Sharkey left in July 2014 there was no tutorial assistance for CPL theory until Moore commenced in late November 2014.

5. After completing a flight on 14 September 2014 Crisp was recommended to carry out his PPL flight test.[34] Crisp carried out his duties with the Army Reserve from 15 September until 17 October 2014 and then he experienced great difficulties in trying to book a time for his flight test.[35]  Eventually, Crisp was able to book his PPL flight test which he passed on 1 December 2014.  No issue was raised with Crisp at this stage with respect to his progress through the course.  Crisp continued to have flight training in December 2014 and January 2015 but after 21 January 2015, despite continuing to request flights, he only had one more flight on 3 March 2015 before withdrawing from the course.

   February 2015 Meeting

   [34] Ex 2, ST66 p 125.

   [35] See email on 27 November 2014 to Des Moore referring to his flight test being rebooked for the 9^th time – ex 4.

6. On 14 February 2015 Crisp received an email from the School that invited all the students to attend a “general information meeting” about the Advanced Diploma.[36]

   [36] Ex 1, T20 p 102.

7. Crisp attended the February meeting. Crisp’s recollections of that meeting were as follows:

   ·Both Johnston and Blake were at the meeting as well as the majority of students and some parents. The meeting was held in the boardroom of the School and Johnston and Blake were going to present a slideshow.

   ·The students were told that either “a number” or “a majority” of them were not likely to complete the Advanced Diploma by 23 June 2015 which was the date that the teach-out period ended.

   ·The students were told that the School could apply for an extension to the 23 June date but that it was unlikely that such an extension would be granted by the Department.

   ·The students were given two options. First, they could continue the Advanced Diploma and most likely fail and be liable for a significant unfunded gap (“the first option”). Second, they could withdraw from the Advanced Diploma and accept the Credits Offer and avoid any liability (“the second option”).

   ·It was explained to the students that they had not progressed far enough through the course and that there was a risk that students would not complete the course in time, and would not receive the qualification they had set out to obtain but would still have a significant debt to the School. A student who took up the second option would not receive a qualification but would be in a better financial position as a result of the credit offer.

   ·Johnston explained that by taking the second option the School would waive the amount that each student was personally liable for and award the student with an amount in credit. The amount of credit a student would receive depended on how far they had already progressed in the course and the Skills for All funding that they received for completed course components. Students then had two years in which they could use the credits. 

   ·Johnston went through two examples to illustrate how the calculations would be done. In both examples the student failed to finish and had a significant debt which could be waived if the Credits Offer was accepted.

   ·The students were given a sample contract and told to go away and consider it.

   ·The School advised the students to consider the two options and to make an appointment with Blake to discuss the best way forward for that particular student.

8. Crisp said that he was shocked to hear that there were students who were not going to pass because there was not enough time to complete the course.  It was the first time that this issue was raised with him. Crisp had had no previous meetings with any staff member to discuss whether he was progressing adequately so as to complete the course in time. Crisp did not know whether he belonged to the group of students who were unlikely to complete the course.

   Post-February Meeting

9. Crisp organised a meeting with Blake on 11 March 2015. At that meeting, Crisp asked Blake about his individual progress and whether he was likely to complete the Advanced Diploma or not. Blake told Crisp that he was not likely to pass the course.

10. Crisp asked Blake for the syllabus so that he could gauge where in the course he was up to. Blake was unable to give him the syllabus and instead provided him with a document titled “Diploma of Aviation (Instrument Flight Operations) AVI50408 Part 2”.[37] Crisp asked Blake where he was up to and Blake indicated that Crisp was at the Solo 5 Alice Springs flight under the Instrument and Navigation Part 2 Advanced section.  Blake gave no estimate of how much longer it would take to complete the course but he said that the likelihood of passing was not good.

    [37] Ex 14.

11. Crisp raised his Army Reserve commitments with Blake and asked whether he would be granted an extension on that basis. Blake stated that this would not be likely. Blake referred Crisp to Johnston to sign the Confidential Agreement.

12. Crisp then carried out his own evaluation as to where he was up to in the course. He was aware that he had passed four out of the seven CASA CPL theory exams and that he was still required to do three CASA CPL exams, a theory exam for command instrument rating and a further seven theory exams for ATPL.  He allowed two weeks to complete each exam which he considered was optimistic.  In addition he needed to complete the flight training for his CPL and his command instrument rating. Crisp decided that he agreed with Blake and that he would not have enough time to finish the course.

13. 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.

14. Crisp’s evidence was that this email caused him great concern and he felt under real pressure to accept the Credits Offer. He was very conscious of the risk that, if he did not withdraw and accept the Credits Offer, he could be liable to pay in excess of $20,000.00. Crisp stated that he did not have that money and felt as though he had no choice but to sign the Confidential Agreement. He made the decision to withdraw after seeing the 16 March 2015 email. Consequently, he arranged the 17 March meeting with Johnston.

15. The meeting on 17 March 2015 was very short. Johnston had already prepared Crisp’s individualised contract (the Confidential Agreement) and provided that in hardcopy at the commencement of the meeting.  Johnston did not discuss with Crisp any alternative options. Crisp signed and dated the Confidentiality Agreement on that day and then formally withdrew from the Advanced Diploma.  He was very stressed at this meeting and felt that he had no other option but to sign the contract.

16. In the period between the February meeting and the date on which Crisp withdrew, Crisp had one flight on 3 March 2015.[38] He said that the School intentionally reduced the workload and flying time after the February meeting to allow students to make up their minds. Crisp referred to an email sent by Bennett to the students on 27 March 2015. In that email, Bennett says: [39]

    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 means the company will resume making bookings for training sessions and flights in accordance with your notified availability.

    [38] Ex 2, ST112 p 354.

    [39] Ex 1, T27 p 113.

17. After withdrawing from the course, Crisp did not use up the credits he was provided under the terms of the Confidential Agreement.

    Blake

18. Blake provided a witness statement and gave oral evidence as follows.

19. The Advanced Diploma was intended to be primarily a flight training course comprising all the aircraft flight training exercises to be delivered by one to one briefings and flight training lessons delivered by qualified instructors in order to achieve CASA flight licences. Ground theory training was set up to be learned through an online learning and self-study provider known as Ron Newman.

20. As the CEO, Blake did not interfere with the flight training that was being delivered by the Chief flying instructor, Bennett.

21. As at late April 2014 Blake was aware that about two or three students were falling behind.

22. With respect to the Ron Newman exams, the School took the view that they had little benefit and therefore did not continue to monitor the tests after the change in management.

23. Blake made the decision to try to find an aviation theory trainer to assist in bridging any identified gaps in the students’ knowledge. After one false start, an excellent theory instructor was found (Moore) towards the end of 2014 and was provided to the students to improve their knowledge in preparation for the ongoing theory examinations.

24. In 2014 he had no discussions with Crisp regarding his progress through the course. Blake accepted in cross-examination that the expected completion dates for modules were not provided to students.

25. With respect to aircraft availability the School encountered some difficulties and there were some issues in 2014. The School made some acquisitions so that there was no problem in 2015.

26. The School became particularly concerned about four or five students who had little to no chance of being able to complete the course on time. Enquiries were made with the respondent. The unusual one semester course structure left both the School and the respondent with few options to assist the students. In February 2015 the School devised its own alternative option that would give each student the opportunity to continue their training in order to achieve a licence outcome and waive their gap fees at the same time. The respondent was consulted to ensure that the option would be allowable and was met with a positive response. The option was offered to all the Advanced Diploma students and was surprisingly taken up by 85% of the students including many that management had assessed were capable of passing the course within its remaining timeframe. For reasons of equity the option was presented to all students, but it was essentially aimed at the lower performing students to free them from the constraints of the single semester course structure.

27. As at the date of the student meeting on 18 February 2015 there were three categories of student: first were those who would clearly not be able to complete the course in time; second were those who might still be able to finish; third, were those who would most likely finish the course in time. Blake said that Crisp fitted into the middle category.

28. Blake gave evidence with respect to the 11 March 2015 meeting with Crisp that he did not have the syllabus in front of him and he had no recollection of any request for an extension. Blake said that they discussed the options available for Crisp at the meeting. Blake said under cross examination that he did not have a clear memory of that meeting.

29. Blake thought that Crisp was above average and that if he applied himself that he could have finished the course in time because he was close to completing his CPL. He was only a bit behind. 

30. Crisp was one of the students who voluntarily withdrew from the course prior to its end date and accepted the Credits Offer. He received $41,323.09 in credits on 27 March 2015 and was able to continue his training for a further two-year period until 31 March 2017. At no time was any undue pressure or any form of coercion placed by the School upon Crisp to withdraw from the course. He was entirely free to complete the course by the end date of 23 June 2015 if he felt that was in his best interests.

    Johnston

31. Johnston gave oral evidence as follows.

32. He took over the management of the School on 23 April 2014 after a period of due diligence. He was aware that the delivery of the course over a single semester was unusual.

33. As at June 2014 he was aware of three students who were struggling to keep up with the course.

34. It was the issue with respect to students falling behind and not being in a position to complete the course that precipitated the meeting with students in February 2015. He came up with a creative way to give the students an out. He engaged with the respondent and got a reply that the solution was fair. At that stage there were three categories of students: first were about four or five students who would most likely not finish the course in time; second were about eight to ten students who were at risk of not being able to finish; third were about six students who would most likely finish the course in time. Crisp was within the second category. During his evidence in chief Johnston said that based on his discussions with senior persons at the School there were 11 out of 20 students who he considered would most likely finish the Advanced Diploma in time.

35. Johnston was worried about how students were going to pay the gap at the end of the course especially if the funding from Skills For All was not available.

36. Some of the students accepted the offer straight away. Those students who accepted the offer felt the pressure was off because they had two years to use up their flying credits.  Only three students did not accept the Credits Offer.

37. Moore did tutorials from November 2014. There was no interruption to tutorials at all after the February 2015 meeting.

38. With respect to what was said at the February 2015 meeting Johnston recalled that he told students that management was concerned that there were “a number of students” who may not finish the course. He took the students through the PowerPoint presentation. He denied strongly encouraging the students to accept the offer. Under cross-examination he agreed that he requested students not continue to fly when they were considering the offer but he denied that this was discouraging them from completing the course.

39. Johnston met Crisp for the first time on or around 17 March 2015. There was very little discussion at the meeting. Johnston gave Crisp a signed and dated offer and asked him to return it if he accepted the terms.

    Bennett

40. Bennett relied on a short written statement dated 6 February 2018 and gave oral evidence as follows.

41. Bennett’s role was chief pilot and chief flying instructor in charge of managing flight training for the students. He has been employed continuously by the School since February 2002.

42. At the beginning of the course students were provided with a study guide[40] for the PPL as an introduction. There was no equivalent guide given by the School for the CPL.

    [40] See ex 13.

43. The Learning and Assessment Strategy Document was an internal company document that described how it was intended to deliver the course. It was not provided to students. Students were not provided with expected completion dates for stages of the course because they were expected to progress at different rates.

44. He conducted some ad hoc tutorials in response to requests from students. Sharkey was a qualified ground instructor who provided support to students with respect to ground theory before Moore was engaged from late in 2014.

45. Bennett said that he had agreed with Crisp that scheduling of flight training would be worked out so that he could be absent for his Army Reserve duty. He believed this absence had no major impact on the ability of Crisp to complete the course. However, Crisp was behind schedule as at the end of 2014 for reasons unknown to him. However, he was not concerned about his progress.

46. The purpose of the February 2015 meeting was because the School was concerned that some students would not be able to complete the course and they wanted to give them options.

47. Crisp was above average in performance and demonstrated an ability which indicated that he could have completed the course in time.

48. There were seven CASA CPL theory exams and seven CASA ATPL theory exams. A student would need between two and four weeks per subject for each CPL and ATPL exam if those theory exams were carried out in conjunction with practical flying lessons. If there was no flight training then only one and ½ weeks would be needed per exam. The command instrument rating takes on average about six weeks.

49. There were three students that did not sign the Credits Offer and none of them finished the course by June 2015.

    CONTENTIONS OF THE PARTIES

50. Crisp contends that the failure of the School to deliver the Advanced Diploma properly and in a timely fashion amounts to special circumstances that apply to him. He refers to the VET Information which provides that course related circumstances may make it impracticable for a person to complete the VET unit of study. Crisp contends further that these course related circumstances were beyond his control, became known only after the census date, and made it impracticable for him to complete the course in time.  He says he withdrew from the course only after being told that he was unlikely to be able to finish the course.

51. The School contends that the Advanced Diploma was delivered in accordance with its requirements and that Crisp failed to complete the course because he voluntarily withdrew from the course on 17 March 2015. The School rejects any criticism of the course and any blame for Crisp not finishing the course.

    THE SPECIAL CIRCUMSTANCES THAT APPLIED TO CRISP

52. For the circumstances to be considered special, they must be unusual, uncommon or exceptional and there must be something that distinguishes them from the ordinary or usual case. The unusual or distinguishing circumstances in this case which are not contentious are as follows:

    (a)the 18 month course was designated as a single VET unit. More commonly, a single VET unit would be taught over a single semester of perhaps five months duration with the census date occurring after about one month;

    (b)the management of the course changed hands mid-way and after the census date for the Advanced Diploma; and

    (c)the offer made to the students in February 2015 to withdraw. Johnston said that it was the exceptional circumstance of students not being in a position to successfully complete the course that required him to be creative and come up with the credits offer to resolve the problem that had arisen.

1. These circumstances are course related circumstances that applied to Crisp. In addition I find that the following circumstances applied to Crisp.

   The extent of the course not delivered

2. The course being delivered by the School can broadly be described as consisting of three blocks being PPL, CPL and ATPL. In addition there was the command instrument rating and miscellaneous other modules being the electives.  The School produced a record of results for Crisp listing all the modules in the course with expected and actual completion dates.[41] The record indicates that for PPL theory the expected completion date was 30 April 2014 and the actual date of completion for Crisp was 23 July 2014, being the date that he sat and passed the CASA PPL theory exam. The record indicates that for CPL theory the expected completion date was 6 August 2014.  Five CPL theory modules are recorded as having been completed by Crisp on 10 December, 22 December 2014, 15 January and 29 January 2015. The record indicates that for ATPL and the other electives the expected completion date was 3 June 2015.  Crisp completed none of the ATPL or other theory modules.

   [41] Ex 3, FST17 p 38.

3. To summarise, in terms of the expected progress through the theory course, PPL theory was to be completed by week 21, CPL theory by week 35, command instrument rating by week 44 and ATPL theory and the elective modules by week 78.  It is apparent that Crisp did not achieve any of these expected completion dates.

4. The School failed to deliver a significant part of the course to Crisp, even taking into account that Crisp withdrew before the completion date. On 9 September 2015 Bennett wrote to Crisp as follows:[42]

   The following information about the Advanced Diploma course is provided in response to your request for further information about your achievements on the course.

   The Advanced Diploma qualification requires a pass in 16 units. These 16 course units are listed below. The majority of units relate to “ATPL” level subjects and require passes in the CASA ATPL examinations. In addition, there is 1 flight unit “Command Instrument Rating”.

   You have not been assessed with a pass/fail result in any one of these 16 course units as you withdrew from the course prior to the final assessments.

   In addition to the 16 units comprising the Advanced Diploma qualification, there are a number of course modules to provide a progressive structure and the opportunity for formative assessment to be conducted throughout the training. Listed below are the course modules that you successfully completed prior to withdrawal. We are not able to provide a formal Statement of Attainment as these modules are internal only, and not recognized under the national qualification framework.

   [42] Ex 1, T29 p 115 – 117.

5. The list attached to the 9 September 2015 letter records Crisp as having completed 27 out of the 58 core modules.  With respect to flight training Crisp still had to complete a module described as Advanced Light Aircraft 2, together with the flight tests for CPL and command instrument rating. With respect to the theory modules Crisp was only part way through the CPL modules and had not commenced modules for command instrument rating, ATPL or “Other” (the electives).

6. The record of results produced by the School records in terms of modules that as at the date of withdrawal on 17 March 2015 more than half of the course had not been delivered to Crisp.  In particular, the 16 “ATPL” level subjects and the flight unit “command instrument rating” had not been delivered to Crisp as at the date of his withdrawal.

   Failure to deliver tutorials and assessments

7. The Advanced Diploma was originally managed and delivered by Norris with the assistance of his wife. The theory component involved study utilising the Ron Newman online materials, weekly group tutorials and regular tests. Tutorials were an important part of the course taught by Norris. Students were taken through the results of the online tests completed beforehand. Crisp received a course structure for the period up to March 2014.[43]  Whilst Norris was managing the course, students studied in accordance with the timetable, attended weekly tutorials and submitted online tests which were marked and returned to them.

   [43] Ex 6.

8. Crisp carried out the online study and participated in the weekly tutorials and sat various School administered exams in the first four months of 2014.  Norris delivered the course in accordance with the Learning and Assessment Strategy Document.

9. After the change in management, the theory component of the course lacked direction and there were no longer regular group tutorials or internal assessments. Crisp was content with the delivery of the course up until July 2014 but thereafter the quality of the course diminished.  There was a period from at least July 2014 during which no formal tutorials were given until the engagement of Moore on or around 20 November 2014 when he commenced tutorials for the CPL theory.  The School no longer administered internal assessments but instead told students that a pass in the CASA theory exams would be sufficient for the purpose of passing the theory modules in the course. The Learning and Assessment Strategy Document was no longer adhered to. 

10. The failure to deliver regular tutorials and internal assessments meant that the requirements for the Advanced Diploma were not being delivered.  There was also a lack of structure and information for students which resulted in Crisp not knowing the theory modules that were part of the course.  He was not provided with a list of those modules[44] until after the course finished so he did not know where he was up to in the course. He was not made aware of his progress or, more to the point, his lack of progress through the course. The engagement of Moore improved the situation but by that stage he and many of the other students had fallen behind, although they did not know it at the time.

    [44] See letter dated 9 September 2015 from the School to the applicant at Ex 1, T29 p 115 – 117.

11. Johnston contended that the theory component of the course was self-learning and did not require group tutorials and that there was nothing stopping students commencing their study of CPL theory earlier than the engagement of Moore. Based on the Learning and Assessment Strategy Document, and what Norris had delivered, I find that students expected and were entitled to receive guided home study, group tutorial sessions and internal assessments as part of the theory component of the course. I consider it was not enough for the School to simply provide material online and to give no further support.

    Failure to adequately progress students

12. The School was aware from as early as June 2014 that students were not progressing as expected through the course and that some students had the potential not to be able to pass the course.[45]

    [45] Ex 3, FST1 p1 letter dated 16 June 2014 to the respondent.

13. The failure to provide tutorials and ongoing internal assessments appears to have caused delays in the progress of the students through the course. In particular, there was an unacceptable delay in the teaching of CPL theory from July until November 2014.

14. The School records show that the expected completion date for the CPL theory modules was 6 August 2014,[46] but Crisp was not notified of this expected completion date. If the School had provided tutorials in CPL theory earlier then Crisp could have commenced the CASA CPL theory exams earlier. In the circumstances of the delay until 20 November 2014 in engaging Moore, Crisp was always going to be well behind in terms of his expected progress through the course. As it was, Crisp attended the tutorials with Moore and then sat and passed CASA CPL theory exams on 10 December, 22 December 2014, 15 January and 29 January 2015.  From Crisp’s perspective, there was no issue with respect to his expected progress through the course at this time.

    [46] Ex 3, FST17, p 38.

15. It was not until the meeting with students in February 2015 that the issue of students’ progress and ability to finish the course in time was raised.  I accept the evidence from Crisp as to what was said at the meeting on 18 February 2015 and I note in particular that students were told that they had not progressed far enough through the course and that they faced a risk of not finishing the course in time if they continued on. Contrary to the evidence of Johnston, I find that the School did encourage students to accept the Credits Offer because the other alternatives offered were so unattractive. 

16. The focus of the February 2015 meeting was the Credits Offer and how much better off students would be if they accepted the offer. The two examples given in the PowerPoint presentation were of students who did not finish the course and were awarded no qualification but remained liable for a debt to the School of in excess of $10,000.  It is not surprising that 17 out of the 20 students in the course accepted the Credits Offer when the only alternative was to continue on and likely fail and be liable for a significant debt to the School.  This is particularly so when the School provided no plan as to how students would be able to finish the course in time. Students understandably felt pressured and that they had no choice but to accept the Credits Offer so as to avoid the risk of a significant liability.

17. The risk for Crisp became more real when he was told by Blake that he was unlikely to finish the course in time.  Crisp has a specific recollection that Blake told him that he was unlikely to finish the course.  As a result he went away and made his own evaluation as to whether there was sufficient time left for him to complete the balance of the course.  Blake said that he did not have a clear memory of the events of the 11 March 2015 meeting which is not surprising given that he had similar meetings with other students at around the same time.  I accept the evidence of Crisp as to the events of the meeting with Blake on 11 March 2015.

18. Blake gave evidence that when he met with Crisp, he thought that Crisp could still finish the course in time.  I consider that to be very improbable given that there was only another 15 weeks available[47] in which Crisp had to complete a further three CASA CPL exams, one CASA command instrument rating exam and seven CASA ATPL exams plus carry out the practical requirements of the CPL flight test and the command instrument rating flight test.  Bennett, who was the chief flying instructor, gave evidence that each CASA ATPL exam would require between two to four weeks when undertaking practical flying lessons. Crisp made the optimistic assessment of needing two weeks for each exam which is not inconsistent with Bennett’s evidence.  Given that there were ten CASA exams left to complete, Crisp needed a further period of at least 20 weeks to finish. With respect to completing the practical component of the course, the School made matters worse by only delivering one flight lesson to Crisp in the period from 21 January to the date of his withdrawal on 17 March 2015. There simply was not enough time for Crisp to complete all the requirements of the course before the completion date of 23 June 2015. 

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

    [47] From 11 March to 23 June 2015.

19. The School does not deny that all the requirements for the Advanced Diploma were not delivered to Crisp. However, the School submits that this circumstance was not due to any failings on the part of the School but was due to Crisp not progressing at the expected rate because of his involvement with the Army Reserve and because he voluntarily withdrew from the course before it ended.  

20. 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. Crisp was not informed in advance, or at all, about the expected completion dates for the PPL and the CPL.  Crisp was not made aware by the School as to his progress through the course. 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 Crisp through the course as required to enable him to complete in time. Further, the School had not informed him of his lack of progress and had not warned him that he was in danger of not completing the course in time.

21. I do not consider that Crisp’s lack of progress was caused in any material way by Crisp attending for his Army Reserve duty.  Crisp had made Norris aware of his expected duties as a member of the Army Reserve and he had said that allowances could be made.  There was no suggestion that Norris thought it may hinder his progress through the course. His first four weeks away at training in early 2014 did not impact his ability to comply with the course structure that Norris had provided for the first three months of the course. During his second period of training, Crisp was able to attend to some of his School duties such as completing an exam on 24 May 2015.  There was similar flexibility during his third period of training in September 2015.  If these absences had caused him to fall behind then I would have expected it to be raised by the School but there was no mention of this at any relevant time.  Further, Bennett gave evidence that it did not impact upon his rate of progress through the course. 

22. The evidence does not establish that Crisp failed to properly apply himself to the requirements of the course.  He attended the tutorials and completed the internal assessments in so far as they were offered.  He worked his way through the CASA theory exams. He was available for the flight training as and when it was offered to him.  Bennett gave evidence that Crisp was above average in performance and his flight records and his exam results support this. For example, there is no evidence that suggests delay caused by Crisp failing exams or not achieving competency in flight training.  Crisp cannot be blamed for the position he found himself in as at February 2015.

23. It is not entirely clear to me why the School failed to deliver the course in a timely fashion.  However, there is no evidence that Crisp was in any way responsible for this failure. The School found itself in a difficult position of not being able to complete delivery of the course by 23 June 2015. The School recognised this problem by well before 9 February 2015 when it wrote to the respondent advising of the problem and seeking approval of its proposal to deal with it. This letter when read together with all the surrounding circumstances provides a strong indication that the School was not in a position to complete the delivery of course by 23 June 2015. The letter seeks to place the blame for this on the students but they should not be blamed for the School’s failure to structure and deliver the course so that it could be completed within the designated 78 week period.

24. It is apparent that the issue with respect to progress would most likely 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. 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 Crisp did not know that he was behind until it was too late. 

25. I find that Crisp’s lack of progress was caused by the School’s failure to deliver the course in a timely fashion.  By February 2015 Crisp was in a position that he was unlikely to be able to finish the course in time. The School was to blame for his lack of progress. 

26. It was not until the February meeting that the School mentioned the lack of progress of students to Crisp.  It was not until the 11 March 2015 meeting with Blake that Crisp was specifically told that he was unlikely to finish the course in time.  There is no justifiable reason why the School waited until the 14^th month of an 18 month course to raise this issue.  Having raised the issue, the School did not attempt to rectify it, except by making the Credits Offer. The School provided no reasonable alternative in the form of a plan or schedule to finish the course in time.  In fact, the School made matters worse because in the period from 21 January up to 17 March 2015 when Crisp withdrew there was only one flight provided by the School to Crisp.  Further, there is no evidence of group tutorials being held after the 18 February 2015 meeting and no evidence of any plan for tuition relating to the outstanding ATPL component of the course.

27. Crisp’s lack of progress was beyond his control because it was the School that controlled the delivery of the course and as at February 2015 it had failed to deliver a significant part of the course; further, there was insufficient time to deliver the balance of the course to Crisp.  It was not the fault of Crisp that so much of the course had not yet been delivered as at the time of the February 2015 meeting.  By that stage it had become impracticable for Crisp to complete the requirements for the course because there was insufficient time for the School to deliver the balance of the course to Crisp and insufficient time for him to complete the balance of the course.

28. As to the assertion that Crisp’s failure to complete the course was due to his voluntary withdrawal, it was the School which put Crisp in the position that he was not going to finish the course in time.  The School put him in a very difficult position.  To adopt the language of the VET Information, a reasonable person would consider that this situation was not due to Crisp’s action or inaction and that Crisp was not responsible for it.  It was entirely reasonable for Crisp to decide to accept the Credits Offer and to withdraw from the course after being put in that position and being told that he was unlikely to finish and that he risked being made liable for a significant sum of money if he did not accept the Credits Offer. 

29. It was not Crisp’s withdrawal from the course that caused him to not finish but rather it was the School’s failure to deliver the course to him in a timely fashion. It was the School’s fault that there was insufficient time for him to complete the course.  If in the period leading up to his withdrawal on 17 March 2015, the School had provided a more structured course with ongoing group tutorials, internal assessments and more flights then there may have been sufficient time to finish the course, but the School failed to do so.  As set out above, the failure of the School to deliver the course cannot be attributed to Crisp.

30. The circumstances of the School not delivering the course in a timely and structured way were special circumstances beyond Crisp’s control that made it impracticable for Crisp to complete the requirements for the course within the 78 week duration.

    DECISION

31. I am satisfied in terms of clause 48 of HESA Schedule 1A that circumstances apply to Crisp that:

    (a)were beyond Crisp’s control,

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

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

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

2. I find that the amount of VET FEE-HELP assistance received by Crisp should be re-credited.

3. I set aside the decision made on 22 April 2016 and substitute a decision that Crisp’s VET FEE-HELP balance be re-credited.

151.     

I certify that the preceding   one hundred and fifty (150) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

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

Administrative Assistant Legal

Dated:  9 December 2019

Dates of hearing:  30 & 31 January 2019;
  14, 15, 18 February 2019;
  28 & 29 March 2019;
  2 & 3 April 2019.

Applicant’s Representative:               Ms. M Pangallo on instructions from JusticeNet SA

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

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