Marrickville Commercial College Ltd, trading as Hurlstone-Marrickville Business College v NSW Vocational Education and Trainjing Accreditation Board

[2001] NSWADT 134

CITATION:	Marrickville Commercial College Ltd, trading as Hurlstone-Marrickville Business College v NSW Vocational Education and Trainjing Accreditation Board [2001] NSWADT 134
DIVISION:	General Division
PARTIES:	APPLICANT Marrickville Commercial College Ltd, trading as Hurlstone Marrickville Business College RESPONDENT NSW Vocational Education and Training Accreditation Board
FILE NUMBER:	003402
HEARING DATES:	23/02/2001
SUBMISSIONS CLOSED:	02/23/2001
DATE OF DECISION:	08/13/2001
BEFORE:	Rice S - Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs Application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Vocational Education and Training Accreditation Act 1990
CASES CITED:	Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR Brooks Maher v Chung [2001] NSWADT18 Christianos v Commissioner of Police [1999] NSWADT 66 Townsend v Chief Executive, State Rail Authority [1999] NSWADT104 66 Minister for Disability Services -v- People with Disabilities (NSW) Inc [2001] NSWADTAP 7
REPRESENTATION:	APPLICANT A Crespo, barrister RESPONDENT P Singleton, barrister
ORDERS:	1. The applicant pay the respondent’s costs in this matter on and from 12 January 2001; 2. If agreement has not been reached between the parties after 60 days from this order, or such further period as the parties agree, costs are to be assessed in accordance with the Legal Profession Act on a party/party basis.

1 The Tribunal can make an order for costs only when warranted by special circumstances. In my view such circumstances exist in this matter, and for the following reasons I intend making a costs order.

Application

2 Marrickville Commercial College Ltd, trading as Hurlstone-Marrickville Business College (‘Marrickville College’) filed with the Tribunal, on 22 December 2000, an Application for Review of a Decision, invoking the Tribunal’s merits review jurisdiction.

3 In answer to the question on the Application form ‘What is the decision you wish to have reviewed?’ the form was completed in this way:
- Refusal to register Marrickville Commercial College Ltd as an RTO i.e. (Registered Training Organisation)
- Refusal to place the approved Course of Diploma of Information technology (Business Analysis) on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) List

4 In answer to the question on the Application form ‘Do you have a copy of the decision?’, the box for ‘No’ was ticked.

5 In answer to the questions on the Application form ‘Date decision was made’ and ‘Date you received notice of the decision’, the date ‘20/12/2000’ was inserted.

6 In answer to the question on the Application form ‘Who made the decision, if known’ the form was completed in this way:
Management of VETAB
Department or other body: NSW Vocational Education and Training Board (VETAB)
Address: Level 12-1 Oxford St, Darlinghurst NSW 2010

7 In answer to the question on the Application form ‘Has the decision been the subject of an internal review?’ the box for ‘No’ was ticked and the form was further completed in this way:
The decision was confirmed by Dr Gary Willmott, Assistant Director General Industry Services, NSW Department of Education

8 Reference in the Application to refusal to register Marrickville College as a registered training organisation is reference to an application Marrickville College had made on 17 February 1999 to the NSW Vocational Education and Training Board (VETAB) for provider registration under s22C of the Vocational Education and Training Accreditation Act 1990 (VETA Act).

9 Reference in the Application to refusal to place a Diploma course on a Commonwealth register is reference to an application Marrickville College had made on 16 December 1999 to the NSW Vocational Education and Training Board (VETAB) for course accreditation under, I had assumed, s12 of the VETA Act. In fact it was in February 2001 treated by VETAB as an application under s22D to vary the scope of Marrickville College’s provider registration. Which was the appropriate provision under which to make the decision does not matter in these proceedings.

10 I did not hear evidence in relation to the circumstances of the purported decision. Marrickville College did however file an affidavit of 22 December 2000 from one of its directors, Mr Michael McCarthy, in which he described the circumstances of the purported decision. I summarise its relevant parts as follows:

• After Marrickville College applied for provider registration, a VETAB compliance assessment took place on 9 July 1999. On 13 January 2000 Marrickville College wrote to VETAB advising that the compliance assessment had been implemented.
• A further VETAB compliance assessment took place on 4 April 2000. On 10 May 2000 Marrickville College wrote to VETAB seeking advice as to their registration application and complaining of financial hardship caused by the delay. Marrickville College wrote again in similar terms, stressing urgency, in July 2000.
• A further VETAB compliance assessment took place on 13 December 2000.
11 Mr McCarthy describes the adverse financial impact on Marrickville College caused by VETAB’s delay in considering both provider registration and course accreditation.

12 Consistently with the terms of the Application to this Tribunal, Mr McCarthy states in his affidavit that on 20 December 2000 VETAB advised of a decision to refuse provider registration and course accreditation.

Dismissal application

13 A necessary preliminary question for the Tribunal in any merits review is whether an application actually activates its jurisdiction. An essential requirement is the existence of a reviewable decision. Usual requirements are that there has been an internal review of the decision, and that a statement of reasons has been lodged.

14 For purposes of the VETA Act, a reviewable decision is one of those listed in s29, including decisions to refuse both registration of a provider and registration of a course.

15 I approached the directions hearing on 11 January 2001 on the basis that, assuming there was a reviewable decision, of which there was no direct evidence filed but which was asserted by Marrickville College, clearly there has been no internal review of that decision, as required by s55(1)(b) of the Administrative Decisions Tribunal Act (ADT Act).

16 On 11 January Marrickville College advised me that an internal review had been requested on 22 December 2000. The 21 day period within which such reasons are to be given (s53(9) ADT Act) would expire therefore on 13 January 2001.

17 VETAB advised me, however, that they disputed that there had been a reviewable decision made, on 20 December 2000 or at all. In written submissions from counsel, VETAB pointed out factual aspects of the events of 20 December which, they submitted, supported their contention that a decision was not made in fact, nor could have been made in law. VETAB applied to have Marrickville College’s Application dismissed (s75 (5)(h) ADT Act).

18 Before being able dismiss the Application I would have had to inquire into and make findings as to events on 20 December 2000. I explored with the parties the possibility of avoiding such a preliminary hearing to resolve a dispute about the existence of a reviewable decision. VETAB were able to indicate that they expected to deal with Marrickville College’s applications at the next scheduled Board meeting on 5 February 2001.

19 Accordingly I adjourned the matter to 6 February for further directions. At the same time I set a hearing date of 15 February in anticipation of there being the need either to decide VETAB’s dismissal application, or to review the merits of whatever decision it might be agreed in the meantime had been made. I took this course as I was impressed by the urgency of the matter from Marrickville College’s point of view, and by what was VETAB’s unexplained delay in considering and deciding Marrickville College’s applications.

20 On 6 February VETAB provided me with a copy of a letter dated 5 February, addressed to Marrickville College, advising of the result of the VETAB Board meeting. The letter advised that the Board had:

• in relation to Marrickville College’s application for provider registration, agreed to “propose to make a decision to refuse” the application, in accordance with s22C(6)(d) of the VETA Act.
• in relation to Marrickville College’s application for course accreditation, agreed to “propose to make a decision to refuse [the application] to vary the scope of [provider] registration, in accordance with s22D(1)(a) of the VETA Act.
• agreed to “propose to make a decision to withdraw” Marrickville College’s registration as a training provider, in accordance with s22D(3)(d) of the VETA Act.
• agreed to “propose to make a decision to refuse” the application, in accordance with s22C(6)(d) of the VETA Act.
• advised Marrickville College of these three proposed decisions, and invited representations within 21 days, in accordance with s22E(1) and (2) of the VETA Act.
21 The letter advised that “A Board decision will be made about the proposed decisions . . . after 21 days”.

22 This course – of proposing to make a decision, and putting Marrickville College on notice before a decision was actually made – was the required course for them to take, as I describe further below.

23 Thus the position VETAB took before me on 6 February 2001 was that there would be no ‘reviewable decision’ until at least 26 February 2001. Marrickville College maintained its position that a reviewable decision had been made on 20 December, and they requested that the hearing on that issue go ahead as scheduled on 15 February 2001.

24 In light of the matters raised in VETAB’s written submissions of 11 January, and of my reading of the terms of the legislation under which Marrickville College had applied to VETAB, I expressed to Marrickville College my concerns that on the material provided so far a reviewable decision could not, as a matter of law, have taken place on 20 December. Through its counsel, Marrickville College maintained its position, and I indicated the type of material which in my view would need to be available to me if I was to be satisfied that a reviewable decision had been made. Accordingly I directed Marrickville College to file and serve affidavits by 9 February and submissions by 14 February, I directed VETAB to file and serve affidavits and submissions by 14 February, and I directed that any summonses issued be returnable before me on 15 February.

25 By letter dated 9 February, the due date for filing its affidavits, Marrickville College withdrew its Application. On 23 February, on the Tribunal formally dismissing the Application, VETAB made an application for costs.

No reviewable decision

26 I agree with the submissions made by VETAB on 11 January 2001 that no reviewable decision was made on 20 December 2000. That is clear from a reading of the relevant legislation and its application to the facts as deposed by a Director of Marrickville College; that is to say, I consider the relevant provisions of the VETA Act are unambiguous, requiring no interpretation, and I take the facts at their highest for Marrickville College.

27 The law in relation to Marrickville College’s application for registration is this.

• The VETAB Board is constituted by the General Manager and 10 Ministerial appointees. The Board may delegate its functions.
• In Part 3A of the VETA Act the VETAB Board is empowered to register a provider, on application (s22C(1)). The Board can require an applicant to provide further information (s22C(3)).
• The application can be refused only on a prescribed ground (s22C(6)). Before the Board refuses an application it must give notice of its proposed decision, and must give the applicant a reasonable opportunity to make representations (s22E(1)).
• It is the decision to refuse registration which is the reviewable decision (s29(g)).
• If, as I had first thought, Part 3 of the VETA Act, relating to accreditation of vocational courses, were relevant to one of Marrickville College’s applications, then the prescribed processes are the same.
28 The facts in relation to Marrickville College’s application for registration are these.
• Marrickville College made applications for provider registration, and for what could be described either as course accreditation of variation of provider registration.
• The Board required further information.
• On 20 December 2000 Marrickville College met with senior managers of VETAB.
  Marrickville College says that these officers advised that the applications had been refused.
29 There is no evidence that at the meeting of 20 December the managers had or were exercising the delegated authority of the Board. There is no evidence of VETAB having given notice of a proposed decision. Such evidence would have been necessary to establish that a legally valid decision had been made, and it was such material that I indicated to Marrickville College I would need to see at a hearing of VETAB’s application for dismissal.

30 A finding, if the hearing had gone ahead, that there was no legally valid decision is not the same as a finding that there was no reviewable decision. An “intended” or “purported” decision that was made can be a reviewable decision even if not legally valid (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR).

31 This argument might have been open to Marrickville College. But it was clear that in reply VETAB would argue more than that the decision was not legally valid. They foreshadowed evidence, which ultimately they were not required to file, that would support their argument that there no decision was made at all. I infer from Marrickville College’s withdrawal of the Application in the face of VETAB’s dismissal application that Marrickville College would not have been able to lead evidence of a decision, legally valid or not.

Marrickville College’s position

32 For Marrickville College to have maintained that there was a reviewable decision made on 20 December 2000 is explicable, and excusable to a point. That point is 11 January 2001.

33 It is explicable in terms of the very long period between Marrickville College having applied for registration and accreditation, and VETAB proposing to make a decision on those applications. VETAB formally proposed to make a decision only on 5 February 2001, almost 2 years after the application for registration, and prompted by the fact of these proceedings.

34 The VETA Act appears not to impose time limits on VETAB’s decision-making in relation to applications to it. VETAB is, it seems, free to take as long as it wants, at whatever cost to an applicant. I can certainly understand Marrickville College’s anxiety, in the face of a long delay and a clear threat to the viability of its business, to have VETAB make a decision on its applications. An applicant’s remedy in these circumstances, to compel the VETAB to act, might lie with Supreme Court; I raised this option in discussion with counsel for Marrickville College at the directions hearings on both 11 January and 6 February.

35 To the extent that the application to this Tribunal was intended to bring the longstanding issues between Marrickville College and VETAB to a head, it appears to have succeeded. That of course, if it were the intention behind the application, would be quite an improper use of the Tribunal’s jurisdiction, and of the public resources which are committed to it.

36 At the time of lodging the Application to this Tribunal Marrickville College was legally represented and, I assume, legally advised. I do not, however, have before me sufficient material to support a finding that the application was lodged with knowledge that it was misconceived in that a reviewable decision had not been made. I accept that, from its knowledge at the time, Marrickville College could reasonably have argued at the time it made the Application that there was a reviewable decision in relation to which they could invoke the Tribunal’s jurisdiction. While I agree with submissions for VETAB that Marrickville College’s Application had the flavour of “booking time” before a real decision was made, I do not agree with the submission that the Application does not even purport to describe a reviewable decision. Nor can I agree, on the available material, that the Application was made frivolously or vexatiously.

Persistence of Marrickville College’s position

37 When the Application was listed before me for directions on 11 January 2001 both parties were legally represented, Marrickville College by counsel. On that day VETAB, in support of its application for dismissal, made written submissions that there was not and could not have been a reviewable decision made on 20 December 2000.

38 On 11 January 2001 Marrickville College was made aware of the VETAB’s submissions, and of my stated reservations as to the existence of a reviewable decision. Marrickville College had access legal advice. It nevertheless determined to maintain its position that there had been a reviewable decision on 20 December 2000. On 6 February I outlined to Marrickville College what material I would have to see if I was to be persuaded that there had been a reviewable decision on 20 December 2000; on 9 February Marrickville College withdrew its Application.

39 Nothing happened on 6 February that gave Marrickville College any greater cause than it had on 11 January to reconsider withdrawing its Application. All VETAB had done was begin, belatedly I must say, the process which Marrickville College had been waiting for it to undertake for nearly 2 years. Legally advised since at least 22 December, Marrickville College cannot reasonably have had any greater awareness of its situation on 9 February than it had on 11 January.

Special circumstances

40 I may award costs in relation to these proceedings only if I am “satisfied that there are special circumstances warranting an award of costs” (s88(1) ADT Act). I respectfully agree with the Tribunal’s analysis in Brooks Maher v Chung [2001] NSWADT 18 to the effect that this is a two stage test: are there special circumstances, and do those special circumstances warrant an award of costs. I note I was referred in argument to two other cases regarding costs in the General Division of this Tribunal: Christianos v Commissioner of Police [1999] NSWADT 66 in which special circumstances did warrant a costs order, and Townsend v Chief Executive, State Rail Authority [1999] NSWADT 104 66 in which special circumstances did not warrant a costs order. In Townsend the President commented on the need to keep in mind the access objectives which the Tribunal is intended to serve.

41 It is “out of the ordinary” (Brooks Maher v Chung at para 140), and therefore a special circumstance that a party will approach the Tribunal to review a decision which is not clearly a reviewable decision. While a special circumstance, it is not, however, extraordinary or exceptional (see eg the facts of Minister for Disability Services -v- People with Disabilities (NSW) Inc [2001] NSWADTAP 7 at paras 19, 20) so would not, alone, warrant the making of an order for costs.

42 It became extraordinary or exceptional in this case when Marrickville College continued to ask the Tribunal to review a decision. Marrickville College did so in the face of the unambiguous words of the relevant Act, which described a necessary decision making process that its own evidence indicated had not happened. After the directions hearing on 11 January 2001 there was a clear basis for Marrickville College to consider withdrawing its application. Despite being given good cause to realise that its application for merits review was misconceived, it maintained the application at a further directions hearing, at which VETAB pressed its application for dismissal and I made my reservations quite clear. It maintained its application for a further period until 5 clear days before the hearing. To have done so is in my view a special circumstance which warrants the making of a costs order.

43 I am unable to say why Marrickville College maintained its application after 11 January. I can only speculate. There is some material that might support an inference that the proceedings became, at least at that point, an abuse of process, maintained solely to put pressure on VETAB to make a long-delayed decision. It is possible too that the misconception as to the existence of a reviewable decision continued, but such a continuing misconception would in the circumstance have been unreasonable.

44 In any event, on and from 12 January 2001 the application was quite apparently misconceived. For Marrickville College to have persisted with the application for a further four weeks, during which time steps were being taken to prepare for an urgent hearing, is a special circumstance warranting the making of a costs order.

Order

45 Accordingly, I order that
1. The applicant pay the respondent’s costs in this matter on and from 12 January 2001;
2. If agreement has not been reached between the parties after 60 days from this order, or such further period as the parties agree, costs are to be assessed in accordance with the Legal Profession Act on a party/party basis.