ASEAN Education and Training Pty Ltd (ACN 083 939 431)

Victorian Registration and Qualifications Authority

ASEAN Education and Training Pty Ltd v Victorian Registration and Qualifications Authority (Occupational and Business Regulation) [2009] VCAT 1926

1. Pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 the proceeding is dismissed.
2. The applicant pay the respondent costs of this proceeding on and from 20 August 2009, such costs to be taxed in default of agreement on County Court Scale A.

Note: These written reasons consist of an edited transcript of reasons given orally at the conclusion of the hearing.

1. In this proceeding the applicant seeks to review a decision of the respondent made on 17 February 2009 which decision refused the applicant permission to have its registration managed by Technical and Vocational Education and Training Australia which is a company which operates National Audit Authority (NARA). In order to achieve registration the applicant relied on Section 4.3.37(1)(b) of the Education and Training Reform Act 2006 which I will refer to as the Act.
2. The proceedings come before me by way of an application by the respondent that this proceeding be dismissed as it is misconceived, lacks substance and is an abuse of process pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998, alternatively that the respondent is suffering a disadvantage within the meaning of Section 78 of the Victorian Civil and Administrative Tribunal Act.
3. Mr Pizer, Counsel for the respondent in his submission has set out the statutory framework of the Education and Training Reform Act 2006. It is convenient that I quote from, his submission, which accurately sets out the framework:

A Victorian-based organisation that wishes to provide vocational education and training must be registered under the Education and Training Reform Act 2006 ("the ETR Act") to do so.

Section 4.7.5 of the ETR Act prohibits a person who is not registered from issuing a qualification or a statement of attainment, and various related conduct.

1. Mr Pizer then draws a distinction between the way organisations are able to become registered pursuant to the Act before and after 29 January 2009 when there was an amendment to the Act, in particular the insertion of Section 4.3.37. Mr Pizer states:

Until 29 January 2009, the only way in which a Victorian-based organisation could become registered was by making an application for registration to the VRQA [the respondent] under Section 4.3.10 and/or 4.3.15 of the ERT Act.

If the VRQA decided to grant that application, it is then required to register the applicant as a training organisation on the "State Register" [and reference is made is 4.3.10(1) and 4.3.10(2) of the Act] and the "National Register", [reference is made to 4.3.16(8) of the Act] with the later being the National Training Information Service maintained by the Commonwealth. The applicant would then be known as a Registered Training Organisation, or an "RTO".

An RTO's registration may be for a term of up to five years, and may be renewed if the application for renewal is made before the registration expires. [Mr Pizer referred to Section 4.3.18 of the Act which section has considerable importance in the conduct of this proceeding and I think it is desirable to be read in full.]

Registration may be for a term up to 5 years and may be renewed, if application for renewal is made before the registration expires.

The VRQA must not grant an application for renewal unless a compliance audit has been conducted that shows that the applicant complies with the relevant standards. [He refers to 4.3.16(3)(c) of the Act.]

Importantly, the VRQA must remove an RTO's details from the National Register if its registration has expired [which is provided for in Section 4.3.20(a) of the Act].

1. Mr Pizer then in his submissions deals with the position of registration after 29 January 2009. He states:

Since 29 January 2009, there has been a second way in which an organisation may be registered if that organisation intends to operate in Victoria and at least one other State or Territory.

That way is this: the organisation may have its registration application managed by a company called Technical and Vocational Education and Training Australia Ltd ("TVET"), which operates the National Audit and Registration Authority ("NARA"). This can only occur, however, if the organisation first applies to the VRQA under section 4.3.37 of the ETR Act for an approval to apply to TVET to be registered, and the VRQA grants that approval.

(a) first, the organisation must apply, under section 4.3.37 of the ETR Act, to the VRQA for approval to apply to TVET; and

(b) secondly, if the VRQA grants that approval, the organisation may then apply to TVET to be registered as an RTO.

1. It is common ground that the applicant known as ASEAN was first registered in Victoria in 1998. That registration was renewed for a further five years in 2003, so that registration expired on 31 August 2008. It seems very clear that the respondent notified the applicant a long time in advance that its registration was about to expire. The respondent also notified the applicant that it should make application for re-registration at least six months before the registration was to expire. This point was brought out very clearly in statutory declarations of Ms Hopkins and Miss Hassan. The applicant's principal, Ms Dayton had apparently made a decision that she did not wish the applicant to apply for re-registration because she was hopeful of selling her business. For reasons which do not matter, that sale did eventuate and so she decided on behalf of the applicant on 27 August 2009, that is before the registration had expired, to apply to be re-registered. It took some time for an audit to be organised. In fact I do not believe the audit has yet been organised but it certainly had not been organised by February or March of this year.
2. On 4 February this year the applicant applied to the respondent pursuant to Section 4.3.37 of the Act to have its registration managed by TVET. The applicant claims that it was relying on Section 4.3.37(b) of the Act which concerns the transfer to TVET of the management of the RTO registration. I think it is important at this stage that I should read the whole of 4.3.37. I do so because the whole of that section becomes important later even if we are only concerned at this stage with 4.3.37(b). Section 4.3.37 reads as follows:

(1) The Authority may, on the application of a training organisation, assess that organisation to determine whether it should be approved -

(i) to be registered on the State Register and the National Register; and

(ii) for TVET to manage the registration of the organisation; or

(b) if the organisation is an RTO, to apply to TVET to transfer the management of the RTO's registration to TVET.

1. It is important to note from sub-section (b) that that is predicated on the organisation being an RTO which is a registered training organisation. It is also important to remember that the registration of the applicant had expired on 31 August 2009, therefore the respondent found that the applicant was not an RTO at the relevant time and its application should be refused. That happened on 17 February 2009. In the respondent's reasons for decision it is stated that the applicant was:

Not eligible to maintain registration in Victoria as evidence of your operations indicated the majority of your training was delivered outside Victoria

1. It was in relation to that decision that the applicant seeks review, however that is not the end of the story. On 12 May 2009 the applicant made a further application to the respondent under Section 4.3.37 of the Act to have the registration managed by TVET.
2. As a result of the second application, on 28 May 2009 the respondent determined that the applicant was eligible to apply to TVET for registration as an RTO. This was pursuant to Section 4.3.37(1)(a). It is now said because of that second decision by the respondent the present application to review is otiose and has been resolved. That is, the substance of the application before the Tribunal is that the applicant wants itself to be managed by TVET and the National Register Organisation and that is in fact what it has achieved.
3. The applicant states that the decision of 28 May 2009 is different from what it was seeking by the February application. Because pursuant to 4.3.37 it means that it would be applying for new registration rather than renewal of registration and it would be more difficult and also the national body TVET has its own rules. However it does appear from the statutory declaration affirmed by Ms Hopkins that the way for a registered organisation to apply for renewal and a new organisation applies for registration are very similar.
4. Mr Pizer in his submission said as the applicant was not an RTO at the time of the decision of 17 February 2009, Section 4.3.37(1)(b) has no application and therefore that part of the decision is inarguably correct. That is, the basis of sub-section (b) is that organisation that is applying to transfer to TVET must be a registered organisation and at the time of the application the applicant was not such a registered organisation as its registration had expired, therefore Section 4.3.37(b) was not applicable.
5. Ms Cooke, solicitor for the applicant said that it is implied by both the Act and the conduct of the respondent that the applicant continued to be registered up to and including the time of the first decision and therefore that decision is arguably wrong. She referred in fact to Section 4.3.18 of the Act to which I have already quoted. That section allows an organisation to renew its registration after five years provided that the application is made before the registration expires. Ms Cooke said that the application in this case was made on 27 August 2008 which is a time of four days prior to the expiry of the registration. There is no doubt that the applicant did make application for registration on 27 August 2008, however I have difficulty understanding why there should be an implication drawn from the Act that a body such as the applicant should continue to be registered. Ms Cooke referred to Section 4.3.20 which requires the respondent to remove a name from the register if that organisation ceased to be registered. In this particular instance it is common ground that the applicant's name was not removed from the register and was still on the register at the time of the decision. That apparently occurred because there was a computer glitch in the respondent organisation, however in my view that is not to the point. Ms Cooke also relied on correspondent received by her friend from the respondent subsequent to 31 August 2008 correspondence gave the impression that the applicant was a registered RTO. It may well be that the respondent disobeyed the Act by not removing the applicant's name from the register and sent misleading correspondence but that does not mean that the applicant was in fact registered. Before a registration can occur or be renewed it is necessary that there should be a compliance audit pursuant to Section 4.3.16. That audit had not taken place, therefore not only had the applicant's registration not been renewed but it could not have been renewed because there was not an audit which took place. Ms Cooke states that the respondent should have acted with greater haste and had the audit conducted prior to the date of the decision. That also may or may not be so but in my view the respondent's conduct even though it may be wrongful, I emphasise here that I am not saying that it is necessarily wrongful, cannot make the applicant's organisation registered when it is in fact not registered.
6. As I have found there can be no implication that the applicant's organisation was registered at the time of the decision, it necessarily follows that the respondent could not re-register the organisation at that time and it was not a registered organisation therefore there was no power pursuant to Section 4.3.37(1)(b) of the Act to give the respondent power to apply to TVET to transfer the management of the respondent through TVET.
7. Under those circumstances it is hard to see how that decision was wrong, in fact I have formed the view that the decision was unarguably correct to use the words of Mr Pizer.
8. As I have previously noted in May of this year the applicant applied to have its affairs managed by TVET pursuant to Section 4.3.37(1)(a) of the Act. On 28 May 2009 permission was given for that to happen, that is the second decision of the respondent allowed the applicant to do what it sought to do under the initial application. It is in these circumstances that Mr Pizer submitted:

That the fundamental issue in the proceeding is whether ASEAN is (now) eligible to apply to TVET to be registered as an RTO.

1. He states: this is no longer in dispute and it is accepted that as ASEAN can rely on the decision of 28 May 2009 so that it is eligible to apply to TVET.
2. I agree with Mr Pizer that the applicant has achieved all that it could achieve from the proceeding. That is to legitimately apply to TVET for registration. I also agree with Mr Pizer that there is nothing further in this proceeding that the applicant can lawfully achieve. I emphasise that it matters not that the respondent sent out letters to the applicant which may have been misleading or that the respondent may have acted improperly. What is important is that the respondent made a decision in May which in my view is quite a proper decision on grounds that it was entitled to make. That decision being that the applicant may apply to TVET to become registered.
3. I note the May decision of course is not being challenged. It was said in passing that I should not take notice of the May decision and other matters that were before the Tribunal because they arose out of a compulsory conference. I do not know what went on in the compulsory conference but giving the applicant the benefit of the doubt I accept that there may have been some discussion about what eventually transpired between the parties in May 2009, however that is not to the point. The fact is these documents originated by making an application outside the conference and a decision being made outside the conference makes them documents which can be tendered into evidence in proceedings and those documents do not have any privilege. Mr Pizer referred me to a judgment of McLelland J in the Equity Division of the Supreme Court of New South Wales, Tenstat Pty Ltd v Permanent Trustee Aust Ltd 28 NSWLR 625, 633. His Honour there stated:

The privilege attached to "without prejudice" communications is "founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish" (Rush & Tompkins Ltd v Greater London Council [1988] UKHL 7; [1989] AC 1280 at 1299), and is "directed against the admissions in evidence of express or implied admissions": Field v Commissioner for Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 285 at 291). It does not however extend to preclude the proof of communications or statements relied on, not as an express or implied admission, but as an objective act having legal consequences.

1. That is in fact what happened in this case.
2. Having made the findings that I have I now must consider whether it is appropriate that the proceeding be dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act. Sub-section (1) of that section reads as follows:

At any time the Tribunal may make an order summarily dismissing or striking out all or any part of a proceeding that in its opinion is frivolous, vexatious, misconceived or lacking in substance or is otherwise cannot be used for process.

1. Mr Pizer is not submitting that these proceedings are frivolous or vexatious, however he does say that they are misconceived, lacking in substance and an abuse of process.
2. At the commencement of the application Mr Pizer quite correctly drew my attention to a decision of Senior Member Walker Martin v Australian Unity [2004] VCAT 2025. In that decision the Senior Member made the point that if Section 75 did not apply at the time of the application to VCAT then the proceeding could not be struck out or dismissed pursuant to that section. However the Senior Member then relied on Section 98 to dispose of the proceeding. At paragraph [15] the Senior Member says:

The decision of 5 May 2004 cannot possibly sit side by side with the original decision. It is an entirely different decision with an entirely different subject matter. It is quite clear that on 5 May 2004 the Insurer was no longer insisting on its decision of 16 February 2004 and had elected to abandon it entirely. It also appears that the Owners were content to rely upon the substituted decision. In those circumstances, there was no reason to continue with this proceeding since the only relief sought was to review the first decision. Since that decision had been abandoned, there was nothing for the Tribunal to determine. The proceeding should have ended there and then. The Tribunal's time ought not to be wasted keeping matters alive when the subject matter of the dispute is gone.

1. Then at paragraph [18] the Senior Member stated:

The insurer asks that the proceeding be struck out as being vexatious under s.75 of the Act but I have considerable doubt that the power conferred by that section ought to be used in a situation where, at the time the proceeding was commenced, it was a valid appeal and not demonstrably frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process. What has happened here is that the subject matter of the proceeding has disappeared in practical terms because the decision appealed from is not only abandoned by the Insurer but another decision quite inconsistent with it has been made in its place. Where as result of settlement, a case of action has been satisfied, the proceeding is struck out under the general power of the Tribunal to regulate its own procedure. The same should occur where the cause of action disappears for any other reason.

1. Thus it is clear that the member was relying on Section 98, however in a case of Martin v Fasham Johnson Pty Ltd [2008] VSC 289 at [36] Kyrou J made it clear that pursuant to Section 98 it was not a proper cause to strike a matter out or dismissal in a situation like the present or that described by the Senior Member. He stated:

During argument, Mr Laird, who appeared for Fasham Johnson, submitted that s 98(3) authorises the Tribunal to bring to an end a proceeding that is before it. I do not accept this submission. While s 98(3) authorises a myriad of procedural orders and actions, it does not authorise the Tribunal to dismiss, strike out or permanently stay the whole of a proceeding before it, or to otherwise dispose of the whole of such a proceeding in a manner akin to a dismissal, striking out or permanent stay except perhaps where this is sought by consent to give effect to a settlement argument.

1. His Honour at paragraph [27] then made it clear that the Tribunal is a creature of statute. He stated:

As the Tribunal is a creature of statute, it has no inherent jurisdiction. Although the Tribunal has some implied powers which are incidental to its express powers and functions, it does not have a general or "at large" power to dispose of a proceeding against the wishes of the applicant in a manner akin to striking out or dismissal without conducting a hearing of the merits. The Tribunal can only take such an action if there is a statutory provision which confers powers on it and the provision is validly invoked. The only provisions conferring such a power are ss 75, 76, 77 and 78 of the VCAT Act, and any applicable provision of the relevant enabling enactment.

1. Mr Pizer submitted that the decision made by Senior Member Walker is not correct. He pointed to the fact that Section 75 itself is couched in the present tense. I also note that it would be an absurdity for a proceeding to go on where there is nothing left to dispute. I find that is the situation in this case. Having looked at Section 75 in some detail I have formed the view that it is a section that allows a proceeding to be struck out or dismissed even though at the time that the substantive application may have been issued there may have been some validity to the proceeding. In that regard I must disagree with the comments of Senior Member Walker. In doing so I place considerable emphasis on the words used in Section 75, At any time. That at any time must not only refer to the time that the application is made but also refers to the nature of the proceedings changing. The nature of the proceedings have changed in this case. That is, the applicant by the decision of 28 May 2009 has achieved what it sought by challenging the decision of 17 February 2009. There is nothing more for the applicant to achieve by this proceeding continuing.
2. I also note that it is a very serious matter to dismiss a proceeding pursuant to Section 75. In dismissing such a proceeding pursuant to that section I must be satisfied that on the proposed evidence of the applicant that the applicant could not possibly succeed. For the reasons I have given I have formed the view that the applicant could not possibly succeed in this proceeding, in other words there is nothing arguable about the applicant's situation. I emphasise again here that it matters not that the respondent may have acted wrongfully in the conduct surrounding the decision. What matters is the decision was made by the respondent was in fact a correct decision and in my view was the only decision which he could have made because at that time the applicant was not an RTO. Under those circumstances the proceeding will be dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act as it has become misconceived, an abuse of process and lacking in substance.
3. Mr Pizer has also made a submission that the proceeding is causing a disadvantage to the respondent pursuant to Section 78 of the Victorian Civil and Administrative Tribunal Act. I note that none of the examples in Section 78(1) of the Act apply in this situation, however Mr Pizer said that as they are not an all inclusive examples, then there may be other applicable situations to which Section 78 applies. However having found that Section 75 of the Act allows me to dismiss this proceeding, I do not need to go on and consider whether Mr Pizer's submission in relation to Section 78 is correct. Therefore the order that I will make is that pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act the proceeding is dismissed.

1. Subsequent to the decision that I gave in this case a short while ago, Mr Pizer on behalf of the respondent has submitted that I should make an order for costs in his client's favour against the applicant and that order should be pursuant to Section 75(2). This proceeding was dismissed pursuant to Section 75. Section 75(2) reads as follows:

If the Tribunal makes an order under sub-section (1) it may order the applicant to pay any other party an amount to compensate that party for any costs expenses lost, inconvenienced or embarrassment resulting from the proceeding.

1. Clearly there has been an order made under sub-section (1) and the use of the word may in section 75(2) gives me a discretion, however that discretion must be exercised properly. It is clear that from the authorities cited this afternoon by Mr Pizer that there is no general rule that costs should follow the event and that was referred to in Taylor, Taylor v Third Szable Holdings Pty Ltd [2001] VCAT 2219. It is also clear that Section 75(2) is an independent cost's provision and see Kishida v Hodgson-Williams (No 2) [2002] VCAT 8.
2. It is clear that when the application was first issued the applicant may not have had the same problems as it had as a result of it making a further application and a further decision of the respondent on 28 May. I also note that the respondent was self represented up until 13 August 2009 and since that time Ms Cooke has been representing her. I have heard that Ms Cooke is semi-retired and she is representing the applicant as a favour for a friend. It is clear from the material that the respondent is a company, and a commercial organisation. However is not flushed with funds but I accept Mr Pizer's submission that that is not a matter that I should take into account. That is I should not take into account the impecuniocity of a litigant in deciding what to do under these circumstances.
3. In my view once the Section 75 application was issued it should have been abundantly clear to the applicant that there was a considerable difficulty for it in this proceeding. The Section 75 application in this proceeding sets out in some very considerable detail the basis on which it is made. In fact to some extent it mirrors a number of the submissions made to me by Mr Pizer during the course of the hearing. Thus, certainly around about the time that the Section 75 proceeding was issued, which seems to be 3 August 2009, alarm bells should have been ringing to the applicant that it would have difficulties resisting that application. I am told that Ms Cooke first came into the matter on 13 August 2009.
4. This is a matter that I would have preferred not to award costs but I am nonetheless bound to apply the law and the law tells me in this circumstance that certainly after the issue of the Section 75 application it would have become blindingly obvious that the applicant's position was untenable.
5. The other matter that I considered was whether a number of the letters that were sent by the respondent to the applicant, and had the effect of misleading the applicant should be taken into account. That is, the letters gave the applicant the impression that it was still a registered training organisation when in fact it was not. The applicant at that time was self represented by its principal. However by the time that the application (Section 75) was issued and the applicant had legal advice, in my view it should have been able to assess its rights properly and accept its position as it was then. Taking the letters into account and the fact that it had legal advice from 13 August I then allow a period of approximately one week for it to have obtained proper advice, which will take us to 20 August. I intend to allow costs on and from the 20th of August 2009.
6. Mr Pizer has asked for costs on Scale B, however bearing in mind the circumstances of this case particularly the fact that the applicant had the wrong impression of the matter, in my view, costs on Scale A are more appropriate.