Tandem College Pty Ltd and Australian Skills Quality Authority

[2018] AATA 3046

Tandem College Pty Ltd and Australian Skills Quality Authority [2018] AATA 3046 (27 August 2018)

Division:GENERAL DIVISION

File Number:           2018/2920; 2018/2921

Re:Tandem College Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Deputy President Rayment QC

Date:27 August 2018

Place:Sydney

Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the operation and implementation of the decision to refuse to renew the registration of the applicant is suspended until further order and that the decision of the respondent to amend the scope of the applicant’s registration is stayed until further order, subject to the applicant providing the following to the respondent by 28 September 2018:

(i)Details of the remedial classes that the Applicant has organised, including the names of the instructors, teaching material and lesson plans;

(ii)Details of the students attending the class; and

(iii)A sample of the completed Student Activity Tasks in respect of each remedial class.

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

Deputy President Rayment QC  

CATCHWORDS

PRACTICE AND PROCEDURE – application for stay orders – reviewable decisions were to refuse applicant’s renewal of registration and amend the scope of applicant’s registration – registration as a national VET regulator registered training organisation – applicant has sufficient prospects of success in the applications for review – refusal of stay would adversely affect applicant and applicant’s students – public interest does not require that stay be refused – stay granted subject to certain conditions

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 41

National Vocational Training Regulator Act 2011

CASES

Civil Aviation Authority v Hotop, Deputy President Administrative Appeals Tribunal [2005] FCA 1023; (2005) 145 FCR 232

Re Anthony Scott and Australian Securities and Investments Commission (2009) 51 AAR 114

REASONS FOR DECISION

Deputy President Rayment

27 August 2018

1. Tandem College Pty Ltd is a registered training organisation under the National Vocational Education and Training Regulator Act2011, and the Australian Skills Quality Authority is the regulator under that Act.

2. Tandem applies to this Tribunal for an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 relating to two of the respondent’s decisions made on 8 May 2018. The first of those decisions involved the refusal of Tandem’s application to renew its registration as a national VET regulator registered training organisation. By letter dated 8 May 2018, the respondent informed the applicant that its registration as a training provider would expire on 12 June 2018, and by subsequent agreement, that decision was not implemented until after the Tribunal had an opportunity to consider whether it is appropriate to make the order now sought. Section 41(2) provides as follows:

   (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.

3. It is important that the power of the Tribunal, in an appropriate case, goes beyond the making of a stay order. A power to make an order “otherwise affecting the operation or implementation of a decision of which review is sought” includes a power to make an order in positive terms, if that is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review: see Civil Aviation Authority v Hotop, Deputy President Administrative Appeals Tribunal [2005] FCA 1023 (Siopis J) at [40]-[47]; (2005) 145 FCR 232.

4. The decision to reject the applicant’s application for renewal of its registration is before this Tribunal for possible redetermination and if the registration of the applicant comes to an end forthwith, the effectiveness and utility of the final hearing will be diminished.

5. The second decision is a decision to amend the scope of the applicant’s registration to remove the courses of Diploma of Business, Diploma of Leadership and Management and Diploma of Community Services.

6. A third decision made by the respondent on 8 May 2018, also the subject of an application to this Tribunal for review, has not involved any application for relief under s 41 and need not be discussed here.

7. The making of an order under s 41(2) is conditioned on such an order appearing to be desirable and by the order being appropriate to secure the relevant purpose. That will ordinarily require consideration of the prospects of success, the consequences including to the applicant and the respondent, of refusal to make an order under the section, the public interest, and any other relevant matter: see Re Anthony Scott and Australian Securities and Investments Commission (2009) 51 AAR 114, 115.

8. I am told that the review will likely require a hearing of one or two days and such a hearing will be able to be had within the next several months, and the relevant decisions have not yet been implemented.

9. The applicant has, on the material before me, sufficient prospects of success in the applications for review to make an order under s 41(2) desirable in my opinion. That sufficiently appears from a consideration of the contents of the affidavit of Anthony Feagan sworn 24 July 2018, notwithstanding the contrary views expressed by Ms Connors, the Principal Regulatory Operations Officer of the respondent. The differences between those two witnesses will need to be explored in evidence on the final hearing. Both are appropriately qualified.

10. There is likely to be a very adverse effect on both students and staff if the registration of the applicant comes to an end before any hearing, in that courses of study will be interrupted and staff will be put off. The applicant is likely to suffer significant financial losses if its registration is cancelled, and its business may be made less valuable or valueless if its registration is not preserved pending the hearing and determination of the application.

11. Mr Feagan’s affidavit also satisfies me that the public interest does not require that the present application be refused, including in light of the conditions which I have in mind to impose.

12. Mr Lloyd has opposed the application altogether on behalf of the respondent and put forward a number of conditions in the alternative, all of which the applicant, by Ms Painter SC, opposed. The applicant has proposed a condition as an appropriate order, that on or before 28 September 2018, the applicant is to provide to the respondent:

    (i)Details of the remedial classes that the Applicant has organised, including the names of the instructors, teaching material and lesson plans;

    (ii)Details of the students attending the class; and

    (iii)A sample of the completed Student Activity Tasks in respect of each remedial class.

13. That condition appears to me to be appropriate having regard to the likelihood of an early hearing date for the proceedings, and I will impose it as a condition of the orders.

14. I will order that the operation and implementation of the decision to refuse to renew the registration of the applicant be suspended until further order and that the decision of the respondent to amend the scope of the applicant’s registration be stayed until further order, conditionally in each case in the terms mentioned in [12] above.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment

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

Associate

Dated: 27 August 2018

Date(s) of hearing:	7 August 2018
Date final submissions received:	16 August 2018
Counsel for the Applicant:	Ms M Painter
Solicitors for the Applicant:	Mr J Hidayat, Piper Alderman Lawyers
Solicitors for the Respondent:	Mr T Lloyd, Australian Skills Quality Authority