Smith v State Training Board - [2020] WASC 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SMITH -v- STATE TRAINING BOARD [2020] WASC 394
CORAM:   KENNETH MARTIN J
HEARD:   22 SEPTEMBER 2020
DELIVERED          :   2 NOVEMBER 2020
FILE NO/S:   CIV 3096 of 2019
BETWEEN:   SIMON SMITH
Applicant
AND
STATE TRAINING BOARD
Respondent
THE ATTORNEY GENERAL
Intervenor

Catchwords:

Judicial review - Decision by local Training Accreditation Council of Western Australia to cancel registration of applicant's corporation as registered training provider - Failure to comply with condition of registration - Failure to pay annual fee - Applicant aggrieved - Attempted invocation of appeal rights against Council's cancellation decision to State Training Board as a statutory appeal - State Training Board declines to receive or hear appeal on basis statutory appeal right said not engaged - Guidelines in regulations or issued by Minister by s 13 Vocational Education Training Act 1996 (WA) said to be irrelevant to cancellation decision as training provider registration - Appeal rights to State Training Board limited to cases of their non-application or misapplication by the Council

Legislation:

National Vocational Education and Training Regulator Act 2011 (Cth)
Standards for VET Regulators 2015 (Cth)
Vocational Education and Training (General) Regulations 2009 (WA)
Vocational Education and Training Act 1996 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Submitting appearance
Intervenor	:	Ms R Panetta

Solicitors:

Applicant	:	In person
Respondent	:	Submitting appearance
Intervenor	:	State Solicitor for Western Australia

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

Ashwin v Housing Authority [2019] WASC 144
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 53

KENNETH MARTIN J:

Introduction

Mr Simon Smith, acting in person, seeks judicial review under an amended application to this court of 10 January 2020. He contends for jurisdictional error in the decision of the respondent, the State Training Board (the Board), declining to hear and determine an appeal sought to be pursued by Mr Smith on behalf of his corporation, RPL Central Pty Ltd trading as Advanced Skill Recognition Initiative (RPL) (of which Mr Smith is the sole director). The decision which Mr Smith had sought to appeal to the Board was a decision of the Training Accreditation Council of Western Australia (the Council) of 27 September 2018.
The Council's decision of 27 September (notice of which was given to Mr Smith on 1 October 2018 and which took effect at 23 October 2018) was to cancel the registration of RPL as a registered training provider (RTP). That decision was made under s 58B of the Vocational Education and Training Act 1996 (WA) (the VET Act). Thereafter, Mr Smith, by his email to the Board of 22 October 2018, sought to invoke statutory appeal rights under s 58G of the VET Act against that cancellation decision of the Council against RPL.
By notice filed on 13 February 2020, the Board indicated that it did not intend to…

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: [2020] WASC 394
Decision Date: 2 NOVEMBER 2020

CaseChat Overview and Summary

The case of Smith v State Training Board concerns the cancellation of the registration of RPL Central Pty Ltd, a registered training provider, by the Training Accreditation Council of Western Australia. Mr Smith, the applicant, sought to appeal the decision to the State Training Board, which declined to hear the appeal on the basis that it did not engage any appeal rights under section 58G of the Vocational Education and Training Act 1996 (WA). Mr Smith then sought judicial review of the Board's decision, arguing that it was wrong to conclude that there were no appeal rights in this instance. The central legal issue in the case was whether the Board had the jurisdiction to hear Mr Smith's appeal against the Council's decision to cancel the registration of RPL Central Pty Ltd.

The Court examined the statutory provisions governing the scope of the Board's appeal jurisdiction, particularly section 58G(2) of the VET Act, which sets out the circumstances under which an appeal may be made to the Board. The Court noted that section 58G(2) refers to appeals against decisions made in contravention of 'any guideline' issued by the Minister or under the regulations. The Court found that the Vocational Education and Training (General) Regulations 2009 (WA) did not contain any guidelines that would have applied to the Council's decision in this case. As such, the Court concluded that the Board was correct in its assessment that there were no applicable appeal rights for Mr Smith to invoke. The Court also highlighted that the Council's decision to cancel the registration was based on specific provisions of the regulations, namely the failure to comply with registration conditions and the non-payment of an annual fee, which did not involve the application or misapplication of any guidelines.

Given the Court's findings, it dismissed Mr Smith's application for judicial review. The Court determined that the Board had not erred in concluding that there were no grounds for an appeal under section 58G of the VET Act. Consequently, the Board's decision to decline to hear Mr Smith's appeal was upheld. The Court's decision affirmed the Board's interpretation of its statutory jurisdiction and the limitations imposed by the absence of relevant guidelines in this context.

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

That all came about because on 31 January 2019, the chair of the Board wrote to Mr Smith (and RPL) to advise them in the following terms:APPEAL AGAINST A DECISION OF THE TRAINING ACCREDITATION COUNCIL: MR SIMON SMITH - RPL CENTRAL PTY LTD The State Training Board has sought legal advice for your appeal lodged on 22 October 2018 relating to a decision of the Training Accreditation Council made on 27 September 2018 to cancel the registration of RPL Central Pty Ltd trading as Advanced Skill Recognition Initiative (RPL Central).The legal advice was to determine whether the appeal met the conditions required by section 58G of the Vocational Education and Training Act 1996 (the VET Act).The legal advice states that the Council's decision under section 58B of the VET Act relied on Regulation 19(1)(e) and (g) of the Vocational Education and Training (General) Regulations 2009 as follows:•failure by RPL Central to comply with a condition to which its registration was subject; that is failure to establish with the relevant regulator within 6 months of registration that it meets the current requirements for registration; and•failure by RPL Central to pay the annual fee required under regulation 15.Regulation 19 does not require TAC to apply any guidelines in considering whether or not to cancel a registered provider's registration. As a consequence there can be no appeal under section 58G of the VET Act.The State Training Board is unable to proceed to review your appeal. This letter is found attached as annexure 'SH5' to Ms Stephanie Hiraishi's affidavit affirmed 23 March 2020 on behalf of the intervenor (Ms Hiraishi's affidavit). So, there was no appeal ever heard or determined by the Board. As a result, by his judicial review application filed originally on 9 December 2019, but amended on 10 January 2020, Mr Smith seeks relief by way of certiorari, prohibition and other declaratory relief. Mr Smith contends, in effect, the decision of the Board to not receive, hear and determine the merits of his attempted appeal, was wrongful. He argues that decision was a failure by the Board to exercise its jurisdiction to determine an appeal which Mr Smith's email communication of 22 October 2018 properly sought to pursue against the Council's cancellation decision against his corporation, RPL. Several features of importance emerge from the discussion so far. First, there is a dispute over the scope for an appeal to the Board under s 58G(2) of the VET Act. In substance, there is a clash over whether there is a right of appeal only by reference to errors by the Council in the application or failure to apply criteria or procedures in 'guidelines' significantly confining the parameters of an appeal to the Board against any adverse decision of the Council. By the wording of s 58G(2) the guidelines are: ministerial guidelines issued under s 13(2) of the VET Act; or 'guidelines' under the regulations, relevantly the Vocational Education and Training (General) Regulations 2009 (WA) (the VET General Regulations) - see s 67 of the VET Act.

Ratio Decidendi

Legal Principle Established

Below I set out those VET General Regulations to see the context of some wider aspects of reg 19(1):19.Suspending or cancelling registration(1)Under section 58B of the Act, the Council may suspend or cancel a WA registered provider's registration if it is satisfied as to any of these matters ‑(a)…(b)the provider has requested or consents to the suspension or cancellation; (c)the provider has ceased to exist;(d)the provider does not comply with the registration standards or the AQF;(e)the provider has contravened a condition to which its registration is subject;(f)the provider is not a fit and proper person to be registered having regard to the matters in regulation 12(6);(g)the provider has not paid any annual fee in accordance with regulation 15. (my emphasis) Also potentially relevant is reg 19(2). It says:(2)Under section 58B of the Act, the Council may suspend or cancel a WA registered provider's registration for a reason specified by subregulation (1) even if ‑(a)the Council is no longer satisfied that the provider satisfies the criteria for making an application for registration under regulation 10(1); or(b)the provider has applied to another registering body to be registered as a training provider under a corresponding law or the Commonwealth Act. It is also relevant to see reg 15 within these same regulations, as regard the topic of annual fees. It says:15.Annual fees payable by registered training providersA WA registered provider must pay an annual fee set under regulation 23 on or before each anniversary of the provider's registration or its renewal. As already seen, s 58G(2) of the VET Act makes express reference to 'guidelines' that the Council is required to apply under s 13 (see s 13(2)). Here, it does not appear to be contended that there was ever any relevant ministerial guideline, providing relevantly for 'criteria or procedures' applicable to the Council under current circumstances dealing with RPL's registration as at 27 September 2018. That is not surprising. The authorisation of the Minister under s 13(2) to issue such guidelines relates only to the functioning of the 'State training system' and to the 'policy to be implemented and procedures followed'. By s 13(3)(b) the Minister is specifically prohibited from issuing guidelines to:the Council, with respect to a particular application or matter that is to be determined by the Council. Hence, as regards the Council's cancellation decision by reason of an assessed failure by RPL to comply with reg 19(1)(e) and (g), a lack of any ministerial guideline is unsurprising. Decisions of Council concerning a particular matter determined by the Council are not, by s 13(3), to be the subject of a potential s 13(2) ministerial guideline issuance applicable to the Council. But there is another source of guidelines to engage with under s 58G(2). There remains the question as to other sources of guidelines sourced from the VET General Regulations and by reference to which the Council might possibly be argued by Mr Smith to have erred in their application, or by a failure to apply, 'criteria and procedures' specified in such guidelines.