Daily Update Pty Ltd and Australian Skills Quality Authority Ms G Ettinger, Senior Member 6 March 2014 Sydney
[2014] AATA 118
[2014] AATA 118
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/2249
Re
Daily Update Pty Ltd
APPLICANT
And
Australian Skills Quality Authority
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Ms G Ettinger, Senior Member
Date 6 March 2014 Place Sydney Australian Skills Quality Authority’s application to vary the Stay Order is refused. The Stay Order made by the Tribunal on 28 May 2013 remains in place.
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Ms G Ettinger, Senior Member
Catchwords
PRACTICE AND PROCEDURE – Stay granted – application to vary stay – imposition of condition - prospects of success, public interest, consequences for parties and consequences on application for review considered by Tribunal – variation not granted
Legislation
Administrative Appeals Tribunal Act 1975 s 41(2).
National Vocational Education and Training Regulator Act 2011: s22(1), 36(2)(b), 39Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Shi v Migration Agents Registration Authority [2008] HCA 31
Secondary Materials
REASONS FOR INTERLOCUTORY DECISION
Ms G Ettinger, Senior Member
6 March 2014
The Australian Skills Quality Authority (ASQA) notified Daily-Update Pty Ltd trading as Green Skills Australia, DU English College and APMI, a Registered Training Organsiation (Provider No: 31901), (DU), by letter dated 17 April 2013, of a decision ASQA had made on 28 March 2013. That decision cancelled, pursuant to section 36(2)(f) and section 39 of the National Vocational Education and Training Regulator Act 2011 (the NVR Act), DU’s registration under the NVR Act with effect from a date that was effectively extended to 31 May 2013. ASQA also gave, pursuant to section 36(2)(b) of the NVR Act, a written direction to DU requiring DU to notify its vocational education and training (VET) students, in writing, of the cancellation.
ASQA’s decision was based on what its auditors found to be non-compliance with section 22(1) of the NVR Act, which states:
An NVR registered training organisation [of which DU is one] must comply with the Standards for NVR Registered Training Organisations [the SNR].
On 16 May 2013, DU applied to the Tribunal for a review of the decision of ASQA. On 22 May 2013, DU filed and served a request for an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), to have the decision stayed. ASQA did not oppose the application, which was granted by Deputy President Hack SC of the AAT in Brisbane on 28 May 2013.
The Stay Order directed relevantly:
The further implementation of the respondent’s cancellation decision of 17 April 2013 is stayed until the hearing and determination of the application or further direction.
The application for an order requiring the respondent to remove reference to the cancellation decision from its website is refused.
Following a period of preparation for either hearing or an Alternative Dispute Resolution event, (ADR), and delays in the lodging of documents, the parties attended a Conciliation Conference with me at the Sydney Registry of the Tribunal on 11 December 2013.
During that period, the Applicant was undertaking certain remedial action in order to comply with its undertakings and requirements under the legislation.
On 17 January 2014, ASQA sought to vary the Stay Order, as granted, to impose a further condition. The request was in the following terms:
The proceeding concerns an application for review of a decision made by [ASQA] cancelling the registration of [DU] [under] [the NVR Act].
In view of the current non-compliances of DU, as identified in [RSOFIC 20/12/2013], ASQA seeks the imposition of a condition on the Stay Order of the Tribunal dated 28 May 2013.
That condition being that:
The Applicant neither enrol any student in nor allow any student to commence studies for the qualifications currently on its scope of registration until further order of the Tribunal.
DU was notified of the application to vary the Stay Order, and provided with the opportunity of making a response. Not surprisingly, DU did not agree with the proposal to vary the Stay Order.
An interlocutory hearing convened in Sydney before me to hear the application of ASQA was held on 18 February 2014. At his request, Mr Cameron Russell, Director of DU attended by telephone from Brisbane; Mr Peter Cribb, Legal Officer of ASQA attended in person. Both parties had filed written submissions in advance. I am mindful that DU’s submission was particularly detailed, and addressed many peripheral issues not directly relevant to the consideration of whether the existing Stay Order should be varied by the imposition of the condition applied for by ASQA. Accordingly, whilst not all the points made by each party are addressed in these Reasons for Decision, they have been taken into account in coming to my decision. I am of course guided by section 41 of the AAT Act, and the relevant case law.
For the sake of completeness, I note that the Tribunal’s review of any decision before it is made subject to the principles stated in Shi v Migration Agents Registration Authority [2008] HCA 31, and including the principle stated in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (as set out in paragraph 35 in the judgment in Shi’s case):
... The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal …
The relevant legislative enactment in this matter is, as already mentioned, section 41 of the AAT Act, and in regard to varying or revoking a Stay Order, section 41(3).
Operation and implementation of a decision that is subject to review
…
(3)Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made, as prescribed, by a party to the relevant proceeding, make an order varying or revoking the first‑mentioned order.
(4)Subject to subsection (5), the Tribunal shall not:
(a)make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter; or
(b)make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless:
(i) the person who made the decision to which the relevant proceeding relates;
(ii) the person who requested the making of the order under subsection (2); and
(iii) if the order under subsection (2) has previously been varied by an order or orders under subsection (3)—the person or persons who requested the making of the last‑mentioned order or orders;
have been given a reasonable opportunity to make submissions to the Tribunal, as the case may be, in relation to the matter.
…
(6)An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)):
(a)is subject to such conditions as are specified in the order; and
(b)has effect until:
(i) where a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or
(ii) if no period is so specified—the decision of the Tribunal on the application for review comes into operation.
Both parties have recognised, in their submissions, the main principles to be considered by the Tribunal in matters of a Stay. These have been enunciated many times in the case law, for example in Delkou v Repatriation Commission (1986) 69 ALR 406, in Re Dart and Director-General of Social Services (1982) 4 ALD 553, in Re Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 240 and more recently in cases such as Civil Aviation Safety Authority v Hotop (2005) 145 FCR 232 and in Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747.
Those principles include, in this context, a consideration of:
·the prospects of success of DU’s case on review;
·whether there would be prejudice to the parties or anyone else if a variation to the Stay Order as applied for were to be granted;
·that the review application, if successful, would be rendered nugatory or pointless if the variation to the Stay Order were to be granted; and
·whether it is in the public interest to grant a variation to the Stay Order.
Prospects of success of DU’s case on review
Mr Russell restated the reasons for the non-compliance which ASQA had found when it cancelled DU’s registration. He emphasised that from his point of view, ASQA had taken into account small and/or repeated errors in his documentation, and not provided the final audit report until 10 May 2013, well after the cancellation dated 28 March 2013.
He had earlier outlined five major events which had impacted on the running of DU, and stated that the errors on which ASQA had relied and characterised as breaches, were relatively minor, and that most of them had already been rectified. He stated that DU had now invested in new staff, trainers and assessors and their training, new premises, new equipment, including computers and systems, new course materials and new policies and procedures. He was satisfied that any non-compliance was either already, or would soon be rectified.
Mr Russell expressed confidence that at the further Conciliation Conference listed for 24 March 2014, provided an ASQA auditor and other relevant persons were present, they would find DU to be compliant, and that his prospects of success would be good.
Mr Cribb submitted that in agreeing to the initial Stay Order, ASQA acknowledged that DU had some prospects of success at the Tribunal. However at the time of this application and hearing, ASQA considered that the prospects ought to be viewed as poor. Mr Cribb emphasised that DU had, since the cancellation, submitted material on at least three occasions in an attempt to demonstrate it had rectified errors, but that errors had again been identified, and that DU was not fully compliant as required. He stated that a variation of the Stay Order as sought, would cause DU to give more emphasis and urgency to rectification.
I have given consideration to the evidence with respect to the prospects of success of the application. Whilst I am not required to conduct a mini-trial of the issues, I have had the opportunity of considering the parties’ submissions for this hearing, and reading the files in this matter in preparation for the Conciliation Conference held on 11 December 2013. I have taken into account the rectification DU has undertaken and am satisfied that it will progress to being compliant. I am satisfied that by the time of the resumed Conciliation Conference on 24 March 2014, the parties may be able to settle the matter.
Accordingly I am satisfied that the prospects of success of this matter are favourable.
Whether there would be prejudice to the parties or anyone else if the variation to the Stay Order as applied for were to be granted
Mr Russell submitted that he would suffer great financial loss and prejudice if a variation to the Stay Order as applied for by ASQA were to be granted. He emphasised that if the variation to the Stay Order were to be granted, he could not enrol new students, or commence teaching others who had enrolled. His business, reputation and finances would suffer greatly, he was likely to be forced into closing DU, and forced into bankruptcy. His submission gave details of his monthly costs. Mr Russell also emphasised that DU was substantially compliant, and since cancellation and the Conciliation Conference in December 2013, had been working towards full compliance.
Mr Cribb submitted that ASQA recognised the prejudice to DU if the variation to the Stay Order were to be granted. However, the Stay Order had allowed DU to continue to operate and enrol new students as if the cancellation decision had not been made. He also emphasised there was accordingly no pressure on DU to get it right.
I have considered the submissions of both parties and am satisfied that both parties understand that it would of great prejudice to DU if the variation to the Stay Order were to be granted. I am satisfied from the evidence that DU has made major changes to the way it operates, and made concerted efforts to become compliant.
Whether the review application, if successful, would be rendered nugatory or pointless if the variation to the Stay Order were to be granted
Mr Russell’s submissions in response to the above were in relation to the prejudice he would suffer if the variation to the Stay Order were to be granted. He emphasised that the organisation would suffer severe financial loss if the variation were to be granted, and would in fact have to close down, resulting in the situation where any review application would be rendered nugatory.
Mr Cribb submitted that DU had been provided with at least three opportunities to rectify its situation, and that with the Stay Order in place, there had been no pressure on DU to get it right. He submitted that if the Stay Order were to be varied as requested by ASQA, there would be an incentive for DU to get it right sooner rather than later. Such incentive would, he submitted, fulfil the intended purpose of securing the effectiveness of the hearing and determination of the application for review of an Order made pursuant to section 41(2) of the AAT Act.
I am mindful of both the parties’ submissions, and mindful that DU has had several opportunities to get it right. I also accept Mr Russell’s submissions that if DU cannot enrol new students, or commence teaching students who are already enrolled, then it is likely to have to dismiss staff, seek to change its structure substantially, and more than likely have to close down.
Accordingly I am of the opinion that even if the review application were to be successful, then with a variation to the Stay Order as sought, in place, the application would be rendered nugatory and pointless.
Whether it is in the public interest to grant a variation to the Stay Order
Mr Russell emphasised that he had in the five years since DU commenced operations not had a complaint from a single student. He also said that the business was able to continue operating due to the loyalty of students and partners, notwithstanding the effects of the cancellation notice on the ASQA website which informs students and partners of the proceedings on foot at the AAT. He seemed to me, to understand the balancing of his private interests versus those of the students, public and partners he was serving.
Mr Russell referred to the legislation, acknowledging that it was in place for the protection of the public. He stated however, his view, that in the cancellation decision, ASQA had exercised its power inappropriately and disproportionately to the minor breaches DU had committed.
Mr Cribb submitted that the variation to the Stay Order as requested by ASQA would provide a more appropriate balancing of DU’s interests (in being able to continue operating pending the review of the cancellation decision), and the public interest in there only being education providers operating who complied with the relevant standards.
I am satisfied that the notice on ASQA’s website is pertinent to the protection of the public, and mindful of the submission Mr Russell has made that there have been no student complaints.
I am satisfied also that DU is making efforts to be fully compliant, and that a further Conciliation Conference before me on 24 March 2014 may resolve the entire application for review. I am not satisfied that it is accordingly desirable to allow the application of ASQA for a variation of the Stay Order.
CONCLUSION
In conclusion, I have considered the indicia for the grant of a variation pursuant to section 41(3) of the AAT Act to the Stay Order in place in this application. I have decided for the reasons given above to refuse the application of ASQA to vary the Stay Order in place. The reasons include the fact that:
·I am satisfied that DU is making efforts to become fully compliant;
·Accordingly I am satisfied the prospects of success of this matter for DU, are favourable;
·It would of great prejudice to DU if the variation to the Stay Order were to be granted. My decision does not compromise ASQA in its role as regulator
·If the review application were to be successful, then with a variation to the Stay Order as sought, the application would be rendered nugatory and pointless;
·The notice on ASQA’s website is pertinent to the protection of the public, and that with the apparent activities of DU to become fully compliant, the public interest has been taken into account.
DECISION
ASQA’s application to vary the Stay Order is refused. The Stay Order made by the Tribunal on 28 May 2013 remains in place.
34. I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
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Associate
Dated 6 March 2014
Date of hearing 18 February 2014 Advocate for the Applicant Mr Cameron Russell Solicitors for the Respondent Mr Peter Cribb
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