Smith v State Training Board - [2021] WASCA 190

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMITH -v- STATE TRAINING BOARD [2021] WASCA 190
CORAM:   BUSS P
MURPHY JA
MITCHELL JA

HEARD:   15 SEPTEMBER 2021
DELIVERED          :   28 OCTOBER 2021
FILE NO/S:   CACV 113 of 2020
BETWEEN:   SIMON SMITH
Appellant
AND
STATE TRAINING BOARD
First Respondent
THE ATTORNEY GENERAL
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: SMITH -v- STATE TRAINING BOARD [2020] WASC 394
File Number            :   CIV 3096 of 2019

Catchwords:

Appeal - Administrative law - Decision by Training Accreditation Council of Western Australia to cancel registration of appellant's corporation as a registered training provider - Decision by State Training Board declining to hear and determine appellant's attempted appeal against Training Accreditation Council's cancellation decision - Appellant's application for judicial review of State Training Board's decision dismissed at first instance - Whether primary judge erred in dismissing appellant's judicial review application

Statutory interpretation - Proper construction of s 58G(2) of Vocational Education and Training Act 1996 (WA) - Scope of right to appeal to State Training Board

Legislation:

National Vocational Education and Training Regulator Act 2011 (Cth)

Standards for VET Regulators 2015 (Cth)
Vocational Education and Training (General) Regulations 2009 (WA), reg 8, reg 19(1), reg 30(1)(c)

Vocational Education and Training Act 1996 (WA), s 13, s 58B, s 58G, s 67(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	A J Sefton SC

Solicitors:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Erujin Pty Ltd v Jacob [2018] WASCA 212; (2018) 53 WAR 452
Smith v State Training Board [2020] WASC 394

JUDGMENT OF THE COURT:

Introduction

This is an appeal against the orders of Kenneth Martin J dismissing the appellant's (Mr Smith's) amended application for judicial review dated 10 January 2020. Written reasons were published in Smith v State Training Board[1] (primary decision).
[1] Smith v State Training Board [2020] WASC 394.
By his judicial review application, Mr Smith contended that there was jurisdictional error in the decision of the first respondent, the State Training Board (Board), in declining to hear and determine an appeal by Mr Smith in relation to a decision of the Training Accreditation Council of Western Australia (Council).[2] Mr Smith had sought to appeal to the Board the Council's decision of 27 September 2018 to cancel the registration of his corporation, RPL Central Pty Ltd trading as Advanced Skill Recognition Initiative (RPL), as a 'registered training provider' (Cancellation decision).[3] The Council's Cancellation decision was made pursuant to s 58B of the Vocational Education and Training Act 1996 (WA) (VET Act).
[2] Primary decision [1].
[3] Primary decision [2].
By email dated 22 October 2018,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASCA 190
Decision Date

CaseChat Overview and Summary

In Smith v State Training Board, the applicant, Mr Smith, sought a review of decisions made by the State Training Board (the Board) and the State Training Council (the Council), which governed the registration of Registered Training Organisations (RTOs) under the Vocational Education and Training Act 2014 (WA) (VET Act). Mr Smith contested the Council's decisions regarding the scope of registration for RPL, an RTO registered under the VET Act, as well as the Council's decision to impose certain conditions on the registration. The central issues before the court were whether the Council had the authority to limit the scope of registration to only those courses and qualifications currently approved by the relevant regulatory framework, and whether the Council had the power to impose specific conditions on the registration of RPL.

The court examined the provisions of the VET Act and the Vocational Education and Training (General) Regulations 2009 (WA) (VET Regulations) to determine the extent of the Council's authority. It was established that under regulation 7(1) of the VET Regulations, the scope of registration for an RTO was defined as including only those approved Vocational Education and Training (VET) courses and qualifications. Given that some of the courses and qualifications listed in RPL's original application had been superseded, the Council was required to limit the scope of registration to those courses and qualifications that were currently approved. The court further found that the Council had the authority to impose conditions on the registration, including the requirement for an audit within six months of registration, as mandated by the Board. These conditions were not subject to negotiation and the Council was obligated to enforce the Board's decisions.

The court concluded that the Council's decisions were within its statutory authority and, therefore, valid. The Council was correct in limiting the scope of RPL's registration to only those courses and qualifications that were approved under the relevant regulatory framework. Additionally, the Council had the authority to impose conditions on the registration, as required by the Board. The court dismissed Mr Smith's application, affirming the Council's decisions as lawful and justified under the VET Act and the VET Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 6 November 2015, the Council wrote to RPL and advised that many of the qualifications listed in RPL's original application had been 'superseded', in that they had ceased to be approved Vocational Education and Training (VET) courses or qualifications.[15] In the letter, the Council proposed a new 'scope of registration', substituting the superseded qualifications with their closest current equivalents (Reduced Scope decision). By reg 7(1) of the Vocational Education and Training (General) Regulations 2009 (WA) (VET Regulations), the term 'scope of registration' refers to the approved VET courses for which the provider is authorised to provide training and/or assessments by the provider's registration, and the approved VET qualifications and prescribed VET qualifications that the provider is authorised to confer by the provider's registration. [15] GB 107 - 108. The Council's letter of 6 November 2015 also foreshadowed an audit in the first six months of registration in accordance with the condition on RPL's registration. On 1 August 2016, RPL was registered as a registered training provider under the VET Act, subject to a number of conditions.[16] On 2 August 2016, Mr Smith sent an email to (among others) the Council, which included the following:[17][17] GB 134 - 135.LETTER OF DEMANDDEMAND TO REMOVE PURPORTED RTO:52810 ILLEGALLY BEARING MY NAME AND TRADEMARK - AND ILLEGAL SCOPE NOT COVERING MY FEES PAID AND AUDIT OVERTURNED AS REPRESENTED IN OCTOBER 2015LEGAL ACTION PENDING…I AM ALSO ADVISING THAT I GIVE NO PERMISSION TO USE MY REGISTERED TRADEMARK RPL CENTRAL IN THIS PURPORTED RTO AND DEMAND YOU REMOVE ME AS A PURPORTED CEO FROM THIS QUASI RTO……I TAKE NO OWNERSHIP OF THIS RTO. I AM NOT THE CEO. I AM NOT RESPONSIBLE FOR IT. On 11 August 2016, the Council wrote to Mr Smith advising that the email they received on 2 August 2016 appeared to indicate that he wished to cancel the registration of RPL as a registered training provider.[18] In the letter, the Council asked Mr Smith to confirm in writing within seven days whether he wished to cancel the registration of RPL. [18] GB 145 - 146. On 15 September 2016, following an inquiry by Mr Smith, the Chairman of the Council wrote to Mr Smith and RPL, concerning the reduced scope of RPL's registration. The letter relevantly stated:[19][19] Primary decision [57]; GB 154 - 155.The Council was required to give effect to the Board's decision, including the condition that [RPL] be audited within 6 months of registration. The Council had no discretion to remove or alter the condition that was imposed by the Board, or to impose any other condition on the registration. In accordance with the Board's decision, [RPL] was registered as a training provider, with effect from 1 August 2016. [RPL's] scope of registration I note that you have queried why the scope of [RPL's] registration does not include all of the courses or qualifications included on [RPL's] original registration application. Under regulation 7(1) of the Vocational Education and Training (General) Regulations 2009 (WA), a registered training provider's scope of registration is defined to mean: (a)the 'approved VET courses' for which the provider is authorised to provide training or assessments or both by the provider's registration; and (b)the 'approved VET qualifications' and prescribed VET qualifications that the provider is authorised to confer by the provider's registration. A number of the qualifications within [RPL's] original application have been superseded; that is, they are not currently approved VET qualifications or approved VET courses. Therefore, given the requirements of the Vocational Education and Training (General) Regulations 2009 (WA), [RPL's] scope of registration cannot include all of the qualifications and courses in [RPL's] original application.The Council could only include those courses and qualifications which are presently 'approved' for the purposes of the VET Act; that is, those courses set out in the Delivery Profile attached to my letter dated 21 July 2016.The Council has no discretion to register [RPL] to provide courses or qualifications which are not approved VET courses or approved VET qualifications.The scope of registration is, therefore, not a matter which the Council is authorised to negotiate with you.I trust that this clarifies the position of the Council in relation to this matter.Please note that the Council will not be entering into further debate or correspondence with you regarding the issues referred to in your emails.

Ratio Decidendi

Legal Principle Established

On 15 September 2016, following an inquiry by Mr Smith, the Chairman of the Council wrote to Mr Smith and RPL, concerning the reduced scope of RPL's registration. The letter relevantly stated:[19][19] Primary decision [57]; GB 154 - 155.The Council was required to give effect to the Board's decision, including the condition that [RPL] be audited within 6 months of registration. The Council had no discretion to remove or alter the condition that was imposed by the Board, or to impose any other condition on the registration. In accordance with the Board's decision, [RPL] was registered as a training provider, with effect from 1 August 2016. [RPL's] scope of registration I note that you have queried why the scope of [RPL's] registration does not include all of the courses or qualifications included on [RPL's] original registration application. Under regulation 7(1) of the Vocational Education and Training (General) Regulations 2009 (WA), a registered training provider's scope of registration is defined to mean: (a)the 'approved VET courses' for which the provider is authorised to provide training or assessments or both by the provider's registration; and (b)the 'approved VET qualifications' and prescribed VET qualifications that the provider is authorised to confer by the provider's registration. A number of the qualifications within [RPL's] original application have been superseded; that is, they are not currently approved VET qualifications or approved VET courses. Therefore, given the requirements of the Vocational Education and Training (General) Regulations 2009 (WA), [RPL's] scope of registration cannot include all of the qualifications and courses in [RPL's] original application.The Council could only include those courses and qualifications which are presently 'approved' for the purposes of the VET Act; that is, those courses set out in the Delivery Profile attached to my letter dated 21 July 2016.The Council has no discretion to register [RPL] to provide courses or qualifications which are not approved VET courses or approved VET qualifications.The scope of registration is, therefore, not a matter which the Council is authorised to negotiate with you.I trust that this clarifies the position of the Council in relation to this matter.Please note that the Council will not be entering into further debate or correspondence with you regarding the issues referred to in your emails. On 21 March 2017, the Council emailed RPL advising that RPL had not met its obligations to report its 2016 training activity data to the National Centre for Vocational Education Research.[20][20] GB 172. On 12 April 2017, the Council wrote to Mr Smith requesting that he nominate a location in the Perth metropolitan area where an audit may take place.[21][21] Mr Smith's chronology, item 130; Attorney General's reply chronology, item 7; GB 174 - 175. On 30 June 2017, an email was sent to RPL attaching an invoice of the annual fee for registration with the Council.[22] An annual registration fee is required to be paid under reg 15 of the VET Regulations on the first anniversary of the registration.[22] GB 185.