Institute of Western Australia Pty Ltd t/a National Community Training and Education and Australian Skills and Quality Authority

[2023] AATA 97

Institute of Western Australia Pty Ltd t/a National Community Training and Education and Australian Skills and Quality Authority [2023] AATA 97 (8 February 2023)

Division:GENERAL DIVISION

File Number(s):      2019/5672

2020/1293

Re:Institute of Western Australia Pty Ltd t/a National Community Training and Education

APPLICANT

Australian Skills and Quality AuthorityAnd  

RESPONDENT

Decision

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:8 February 2023

Place:Sydney

The applications is dismissed for a failure to proceed under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

..............................[SGD]..........................................

The Hon. John Pascoe AC CVO, Deputy President

Catchwords

PRACTICE AND PROCEDURE – regulatory – decision to cancel registration as a registered training organisation under the NVR Act – decision to reject an application for renewal of registration as a registered training organisation under the NVR Act – whether the applicant has failed to proceed with the application – where the applicant has continuously failed to comply with directions – no appearance at dismissal hearing – application dismissed.

Legislation

National Vocational Education and Training Regulator Act 2011 (Cth) s 17, 36, 39, 199, 203

Administrative Appeals Tribunal  Act 1975 (Cth) s 41, s42A

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

8 February 2023

1. By applications dated 9 September 2019 and 2 March 2020, and received by the Administrative Appeals Tribunal (the Tribunal) on 11 September 2019 and 10 March 2020, the Applicant, Institute of Western Australia Pty Ltd (IWA), seeks review of two decisions made by the Respondent (Australian Skills Quality Authority) on 19 August 2019 and 26 February 2020 under the National Vocational Education and Training Regulator Act 2011 (the NVR Act):

   (a)a decision to cancel, under sections 36(2)(f) and 39 of the NVR Act, the Applicant’s registration as an NVR registered training organisation (RTO); and

   (b)a decision to reject an application for renewal of registration as an RTO, under section 17 of the NVR Act.

2. The decisions are “reviewable decisions” as defined in section 199 of the NVR Act and are reviewable by the Tribunal under subsection 203(2) of the NVR Act.

   Background

3. On 9 September 2019, the Tribunal received the first application for review, along with an application for a stay under s 41(2) of the Administrative Appeals Tribunal  Act 1975 (Cth) (‘the Act’).

4. With the consent of the parties, the stay was granted on 10 October 2019.

5. The matter was progressed through the normal pathways at the Tribunal, and the matter was listed for substantive hearing in March 2021. Between February 2020 and October 2020, the applicant was listed before the Tribunal on four separate occasions for non-compliance.

6. On 1 February 2021, a directions hearing by telephone in this matter was listed following a request from the applicant’s representative. At the directions hearing, the applicant’s representative noted that they were not ready to proceed to hearing yet and requested that the hearing listed in March be vacated.

7. The hearing dates were vacated, and new timetabling directions were made by the Tribunal with the consent of the Respondent. 

8. The matter appears to have fallen into abeyance until it was listed for a further directions hearing on 27 August 2021. The Tribunal noted at the hearing that there had been non-compliance with directions by both parties. The matter was listed for a conference in early 2022 to discuss how to progress the matter.

9. At conference, the parties agreed to timetable the matter for hearing. Directions to this effect were made, and hearing certificates to be filed to locate an appropriate date to list the matter.

10. On 7 July 2022, the matter was listed for a further non-compliance directions hearing to address the applicant’s failure to comply to with the directions of the Tribunal. On 24 June 2022, the Tribunal received an email from the applicant’s representative stating that he was having significant difficulty obtaining instructions from his client, and apologising for the “unsatisfactory nature of the conduct of the Applicant in the circumstances.”

11. At the directions hearing on 7 July 2022, the applicant’s representative appeared and sought leave of the Tribunal to cease acting for the applicant as he was unable to obtain any further instructions. The Tribunal determined it would be appropriate to list the matter for a dismissal hearing following the applicant’s representative serving notice of their ceasing to act for the applicant.

12. The matter was listed for a interlocutory hearing by videolink on 1 February 2023.

    Issue

13. The sole issue before the Tribunal is whether to dismiss the applications in these proceedings pursuant s 42A of the AAT Act.

    the Law

14. Section 42A of the AAT Act relevantly provides:

    Discontinuance, dismissal, reinstatement etc. of application

    …

    Dismissal if party fails to appear

    (2)  If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

    (a)if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or

    (b)in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.

    …

    Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction

    (5)  If an applicant for a review of a decision fails within a reasonable time:

    (a)to proceed with the application; or

    (b)to comply with a direction by the Tribunal in relation to the application;

    the Tribunal may dismiss the application without proceeding to review the decision.

    Dismissal hearing

15. Despite numerous attempts to contact the applicant by telephone and by email, including on the morning of the hearing, the Tribunal was unable to make contact and the applicant did not make any attempt to contact the Tribunal.

16. The closest this matter got to hearing was at the beginning of 2021

17. There have been numerous non-compliance hearings and several conferences, but the matter has failed to progress despite the parties agreeing to progress the matter to hearing and directions being made to that effect.

18. On 24 June 2022, the applicant’s representative emailed the Tribunal advising that he was having significant difficulties getting instructions from the applicant and requesting leave to cease to act for the applicant, which was granted.

19. The applicant did not advise of the name of any other representative or indeed any changes as to how the Tribunal should contact the applicant.

20. It was suggested and agreed by the Tribunal at the time of the directions hearing on 7 July 2022 that the matter be listed for a dismissal hearing.

21. I note that the respondent has been put to considerable effort and expense over the last two to three years, and that the stay which was granted in October 2019 remains in place so that the applicant is technically still a registered organisation. It is not in the public interest for this to continue as it may mislead third parties who search the register.

22. It is also at a cost of the public to have this remain at the Tribunal.

23. The Tribunal has the power to dismiss the matter under s 42A(2) for a failure to appear before the Tribunal, or alternatively under s 42A(5) for a failure to proceed with an application. In all of the circumstances, I am of the opinion that the matter should be dismissed pursuant to s 42A(5) of the Act. It is important that the matter is concluded. The applicant, particularly in the last year, has failed to take any real action to progress their matters in the Tribunal

24. Itis not necessary for the Tribunal to consider dismissal under s42A(2) as the Tribunal has determined the matter should be dismissed under s42A(5).

    Decision

25. The applications is dismissed for a failure to proceed under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..........................[SGD]..............................................

Associate

Dated: 8 February 2023

Date(s) of hearing:	1 February 2023
Applicant:	No appearance
Solicitors for the Respondent:	Ms M. Schauer, Australian Skills and Quality Authority