Talented Training Pty Ltd and Australian Skills Quality Authority

Talented Training Pty Ltd and Australian Skills Quality Authority [2020] AATA 194 (14 January 2020)
Division:GENERAL DIVISION
File Number: 2019/8122
Re:Talented Training Pty Ltd
APPLICANT

Australian Skills Quality AuthorityAnd
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date of oral decision:            14 January 2020
Date of request
for written reasons:              28 January 2020
Date of written reasons:        18 February 2020
Place:Brisbane

Pursuant to sub-section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the operation of the Respondent’s decision of 13 December 2019 to cancel the Applicant’s registration under section 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) is stayed until determination of the Application for Review filed 6 December 2019 or further order of the Tribunal, with conditions.
…………..….…[sgd]………..………
Senior Member Katter
Catchwords
PRACTICE AND PROCEDURE – application to stay decision – cancellation of registered training organisation registration – principles relevant to the granting of a stay – interest of persons affected by review - prospects of success – public interest – stay application granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
Cases
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
REASONS FOR DECISION
Senior Member Katter
Date of oral decision: 14 January 2020
Date of request
for written reasons: 28 January 2020

Date of written reasons: 18 February 2020
For the reasons given orally at the conclusion of the hearing on 14 January 2020, the Respondent’s decision made on 13 November 2019 to cancel the Applicant’s registration as a registered training organisation is stayed with conditions.
INTRODUCTION

Talented Training Pty Ltd (“the Applicant”) filed a request for a stay of the decision[1] of the Australian Skills Quality Authority (“the Respondent”) cancelling the Applicant’s registration.
[1] Dated 13 November 2019.
BACKGROUND
The Request for a stay was filed on 6 December 2019 by the Applicant, pending the final decision of the Tribunal as to the Applicant’s Application for Review[2].
[2] Filed with the Tribunal also on 6 December 2019.
The Respondent decided to cancel the registration of the Applicant, further to section 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) (“the NVR Act”), by the decision dated 13 November 2019, which decision was to come into effect on 18 December 2019.
The Request for the stay was heard by the Tribunal, on 17 and 18 December 2019. An un-conditional interim stay was ordered on 17 December 2019 until 18 December 2019.
On 18 December 2019 the Tribunal ordered the continuation of that interim stay until further hearing on 14 January 2020. The interim stay ordered on 18 December 2020 had conditions as to the assessment by three individuals only (Mr Kyle Mark Stewart, Mr Steven Franz Murray and Mr Richard Lee): Order 2(c). It was ordered that there be the presentation to the Respondent, on request, of training and assessment records and class rolls signed by each trainer and assessors for all courses: Order 2(b). Further, it was ordered that Mr Samuel Fulcher and Mr Joshua Fisk not assess any students for the duration of the Order: Order 2(d). The stay was listed by that Order for further hearing: Order 2(e).
APPLICABLE LAW
The issue is whether an order under sub-section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) should be made:
“Operation and implementation of a decision that is subject to review …
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division. … ”
The non-exhaustive factors that are relevant to whether or not the interim stay that was ordered on 18 December 2019 should or should not continue are referred to in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4] per President Downes J:
“Application having been made for a stay of proceedings under s 41 of the Administrative Appeals Tribunal Act 1975, it is nevertheless incumbent upon me now to consider whether a stay is appropriate. In considering the application, it is appropriate for me to consider a range of matters, including:
1.The prospects of success.
2.The consequence for the applicant of the refusal of a stay.
3.The public interest.
4.The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
5.Whether the application for review would be rendered nugatory if a stay were not granted.
6.Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application.”
CONSIDERATION
In accordance with sub-paragraph 41(4)(a)[3] of the AAT Act, the Tribunal gave the Respondent a reasonable opportunity to make submissions in relation to the order sought by the Applicant and the Tribunal took into account the interests of the Respondent and any other persons who may be affected by the review of the Respondent’s decision. Both the Applicant and the Respondent were given a reasonable opportunity to make submissions in relation to the stay on 14 January 2020.
[3] “Operation and implementation of a decision that is subject to review …
(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…”
It was not in contention between the parties that the Applicant is a registered training organisation in accordance with the NVR Act[4].
[4] Transcript P-71 at line 6.
As to the prospects of success of the review on the material filed to date, noting that the evidence is preliminary in its nature from both parties, the application does not appear to be ‘fanciful’ or ‘totally hopeless’[5]. There does appear to be real questions[6] that will be in issue as to the Application for Review filed 6 November 2019, having regard to the evidence and the material that has been filed[7] and the submissions made.
[5]           Paragraph 7 of the Request for stay order, Annexure A.
[6]           Reasons for the Application, 1-12, in the Application for Review of the Decision.
[7]           Statement of Samuel Fulcher, with Annexures, dated 16 December 2019.
There are, having regard to the evidence filed, material consequences for the Applicant if there was a total refusal of the stay requested[8]. There is evidence that the financial impact on the Applicant may lead to the insolvency of the Applicant[9], in circumstances where the period of time of enrolments with the Applicant is relatively short[10]. It is submitted therefore by the Applicant that the refusal of the stay may render the application for review nugatory[11].
[8]           Statement of Samuel Fulcher, paragraphs 11-16.
[9]           Statement of Samuel Fulcher, paragraph 12 and Annexure A.
[10]          Statement of Samuel Fulcher, paragraph 7.
[11]          Statement of Samuel Fulcher, paragraphs 12 and 14.
The parties made particular reference in their submissions made and read on 14 January 2020 to the public interests[12] or otherwise of a stay order, with conditions or otherwise[13]. There is a ‘balance’ between the submissions of the Applicant and the public interest, where the courses in question relate to safety[14]. The public interest as to safety is therefore ‘balanced’ with the submissions of the Applicant[15].
[12]          Statement of Samuel Fulcher, paragraphs 17-54; Transcript P-82 at line 21.
[13]          Transcript P-81 lines 35-36 and P-89 line 37.
[14]          Transcript P-82 line 7.
[15]          See Transcript P-84 lines 37-43.
It was submitted by the Applicant that it would be ‘some months’[16] to the substantive hearing of the review.
[16] Transcript P-90 line 13.
CONDITIONS
In all the circumstances submitted by the parties, on balance, a stay order is made, having regard to the public interest as to safety, the prospects of success of the application and the potential that the Review be nugatory if no stay were granted.
The stay orders include conditions that take into account the public interest and seek to ensure by the stay a ‘balance’ between the stay and the safety of the public. The conditions take into account the interests of the Respondent and the interests of persons who may be affected by the review of the Respondent’s decision.
The Applicant must retain and continue to retain and produce on request to the Respondent all training and assessment records for all VET students for all VET courses for the period of the stay.
The Applicant must maintain and produce on request to the Respondent class rolls for each class and/or training containing the name of each student scheduled to attend that class and/or training, signed by each student who did attend that class and/or training, at the commencement and ceasing of each class and/or training and signed by each trainer/assessor training or assessing in that class and/or training for all courses.
Any assessments are only to be made by accredited assessors: Kyle Mark Stewart; Steven Frans Murray; Richard Lee; Robert Ogilvie; Jean Mark Jimmy Vuillemain; Allan Mark Gleeson; Darryl Bauer, for the period of the stay or until further order.
Samuel Fulcher and Joshua Fisk are not to assess any students for the period of the stay or until further order.
DECISION
Pursuant to sub-section 41(2) of the AAT Act, the operation of the Respondent’s decision of 13 December 2019 to cancel the Applicant’s registration under section 39 of the NVR Act is therefore stayed until determination of the application for review filed 6 December 2019 or further order of the Tribunal, with conditions.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

................................[sgd]..............................
Associate
Dated: 18 February 2020

Date of hearing:

Date of oral decision:

Date of request
for written reasons:

Solicitor for the Applicant:

14 January 2020

14 January 2020

28 January 2020

Mr Matthew Lynch
Gorval Lynch Lawyers

Solicitor for the Respondent:
Ms Sasha Edwards-Taylor
Australian Skills Quality Authority

[2020] AATA 194

14 January 2020

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Stay of Proceedings

Standing

Statutory Construction