Commonwealth of Australia v Harrison

PERRY J: 1 INTRODUCTION [1] 2 EVIDENCE [5] 3 KEY PROVISIONS OF THE ACT [6] 4 PRINCIPLES APPLYING TO THE DISCRETION TO GRANT JUDGMENT IN DEFAULT [15] 5 CONSIDERATION OF THE APPLICATION FOR DEFAULT JUDGMENT [25] 5.1 Background to, and overview of, the alleged contraventions [25] 5.2 Jurisdiction [36] 5.3 Acts of default by the respondent [37] 5.4 Do the pleadings provide a foundation for the declaratory relief sought by the Commonwealth? [39] 5.4.1 Offers to provide VET courses (ss 117(1), Act) [39] 5.4.2 Improper issuing of statements of attainment (ss 129 and 121, Act) [50] 5.4.3 Improper issuing of a qualification (ss 127 and 119, Act) [58] 5.4.4 False or misleading representations in relation to statements and qualifications (s 125, Act) [63] 5.4.5 Using bogus VET qualifications (s 131(1), Act) [66] 5.4.6 False or misleading representations in relation to the bogus VET qualifications (s 125, Act) [70] 5.4.7 False or misleading representations in relation to relationships with RTOs (s 125, Act) [72] 5.5 Discretionary considerations [73] 6 CONCLUSION [81]

INTRODUCTION 1 This is an application for judgment in default under r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) (FCR) by the applicant, the Commonwealth, on behalf of the Australian Skills Quality Authority (ASQA), against the respondent, Ms Donna Amanda Harrison (also known by the name Donna Amanda Hawthorn). The ASQA is the National Vocational Education and Training (VET) Regulator (the Regulator) established by s 155 of the National Vocational Education and Training Regulator Act 2011 (Cth) (the Act) and named by reg 15 of the National Vocational Education and Training Regulator Regulations 2011 (Cth). 2 By an application filed on 12 November 2018, the Commonwealth contends that Ms Harrison breached certain provisions of the Act. Specifically, the Commonwealth contends that between January 2015 and November 2016, Ms Harrison either directly or through her business, Glow Salon, breached the Act in offering to provide VET courses (or parts thereof), issuing documents that purported to be genuine VET statements of attainment or genuine VET qualifications, using and displaying "bogus" VET qualifications, and making false representations relating to VET courses. 3 As I later explain, the respondent has not participated in any way in the proceeding, despite every reasonable opportunity being afforded to her. No steps in compliance with the FCR or Court orders have been taken by Ms Harrison and she has failed to attend any hearing and to defend the proceeding, including the application for default judgment. 4 For the reasons I explain below, I accept on the face of the statement of claim that each of the elements of each alleged contravention of the Act has been properly pleaded, that the Commonwealth is entitled to the relief claimed, and that there is no reason in the exercise of discretion not to grant the declaratory relief sought. I do not, however, at this stage consider whether pecuniary penalties ought to be granted or any order as to costs. The Commonwealth has indicated that it intends to file and serve additional evidence and submissions on these matters in the event that the Court should grant the declaratory relief sought.

EVIDENCE 5 The Commonwealth relies upon the following affidavits in support of the application for default judgment: (1) the affidavits of Ms Nicolette Francine Strauss affirmed on 20 May 2019 (the primary affidavit), 18 December 2018 (the substituted service affidavit) and 6 June 2019 dealing with service of the application for default judgment (the third affidavit of service); and (2) the affidavits of Mr David Anderson, process server at Wise McGrath, sworn on 21 December 2018 and 31 January 2019 (the first and second affidavits of service respectively).

KEY PROVISIONS OF THE ACT 6 It is helpful to begin by briefly summarising key provisions of the Act so as to put the proceeding in its broader context. I note that in the time period in which the alleged contraventions occurred, the Act was amended on several occasions. While I have considered the version of the Act in force at the time of each contravention, the Commonwealth advised the Court by email on 18 June 2019 that "the only material amendment to [the Act] during the period of 23 January 2015 to 8 November 2016 was the insertion of the new civil penalty provision, s 123B". At the hearing, the Commonwealth explained that it no longer pressed the alternative declarations at paragraphs [2.1]-[2.3] of the originating application because s 123B of the Act was not in force at the time of the alleged contraventions. 7 The objects of the Act are set out in s 2A as follows: (a) to provide for national consistency in the regulation of vocational education and training (VET); and (b) to regulate VET using: (i) a standards-based quality framework; and (ii) risk assessments, where appropriate; and (c) to protect and enhance: (i) quality, flexibility and innovation in VET; and (ii) Australia's reputation for VET nationally and internationally; and (d) to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and (e) to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and (f) to facilitate access to accurate information relating to the quality of VET. 8 These objects are sought to be achieved by the highly regulated scheme established by the Act which is to the following effect. 9 Subdivision A of Division 1 of Part 2 of the Act provides for persons and bodies to apply to the National VET Regulator for registration or renewal of registration as a NVR registered training organisation (RTO). In deciding whether or not to grant an application, the Regulator is required to consider whether the applicant complied with the VET Quality Framework and applicable conditions of registration set out in Subdiv B of Div 1 (s 17(2) of the Act). Registration cannot be for a period in excess of 7 years (5 years, prior to 3 April 2015) (s 17(5)) and conditions may be imposed on registration under s 29(1) (see also s 17(6)). A RTO must comply with the conditions set out in ss 22-28 of the Act (s 21), including the standards for RTOs, the Australian Qualifications Framework, and the Data Provision Requirements (s 22), as well as any general directions given by the Regulator (s 28). The Standards for Registered Training Organisations (RTOs) 2015 (the 2015 RTO Standards) were made under ss 185(1) and (2) of the Act and form part of the VET Quality Framework, being "a system which ensures the integrity of nationally recognised qualifications" (2015 RTO Standards at p. 5). The purpose of the 2015 RTO Standards is to: 1. set out the requirements that an organisation must meet in order to be an RTO; 2. ensure that training products delivered by RTOs meet the requirements of training packages or VET accredited courses, and have integrity for employment and further study; and 3. ensure RTOs operate ethically with due consideration of learners' and enterprises' needs. (2015 RTO Standards at p. 5) 10 The Regulator has power to audit a RTO's compliance with the Act and the VET Quality Framework, and to review any aspect of a RTO's operations to determine any systemic issues relating to the quality of vocational education and training (s 35 of the Act). Sanctions may be imposed on non-compliant RTOs (s 36). A RTO's registration may also be suspended or cancelled by the Regulator (ss 38 and 39). Various investigative powers are conferred under Part 5 of the Act including compulsive powers to require the disclosure of information by persons connected with a RTO or former RTO (s 62) and for search and seizure. 11 Provision is made in Div 1 of Part 3 of the Act for applications to the Regulator for accreditation of a VET accredited course. In deciding whether to grant accreditation, the Regulator must consider the Standards for VET Accredited Courses and the Australian Qualifications Framework (s 44). Accreditation of courses is limited to a maximum period of 5 years, and conditions may be imposed with which a person must comply (s 44(3) and (4) of the Act; see also ss 47 and 48(1)). Where the Regulator is satisfied that a VET accredited course does not meet the Standards for VET Accredited Courses or the Australian Qualifications Framework, the accreditation may be cancelled (s 52). 12 Provision is also made for the issue of VET qualifications and statements of attainment by the Regulator. Specifically, s 55(1) provides that the Regulator may issue a VET qualification to a person who is a current or former VET student if the Regulator is satisfied, on reasonable grounds, that the person has successfully completed the requirements of the qualification. Section 55(2) in turn provides that the Regulator may issue a VET statement of attainment to a person in relation to units of competency or modules of a VET course if the Regulator is satisfied, on reasonable grounds, that the person has successfully completed the requirements of the units of competency or modules of the VET course. 13 The seriousness with which the Parliament views departures from the standards imposed by the Act is apparent from the enforcement provisions. For example, a RTO commits an offence or is liable to civil penalties if it provides a VET course outside the scope of its registration (ss 93 and 94 respectively), or if it issues a VET qualification or statement of attainment outside its registration (see ss 95 to 98 of the Act). It is also an offence or civil penalty contravention for a RTO to issue a VET qualification where it did not provide the necessary assessment for a VET student to satisfy the requirements of the qualification (ss 103-104). Similar provision is made in relation to the issue of a VET statement of attainment without adequate assessment (ss 105-106). 14 Furthermore, Subdiv B of Div 1 of Part 6 creates various offences and civil penalty provisions for breaches of provisions proscribing conduct by persons or entities that are not a RTO. The civil penalty provisions relevantly provide for the imposition of civil penalties where: (1) a person provides all or part of a VET course in a referring State or Territory and the person is not a RTO (s 117(1)); (2) a person who is not a RTO: (a) purports to issue a VET qualification (s 119); (b) purports to issue a VET statement of attainment (s 121); (c) makes a representation that relates to a course or part of a course held out as being part of a VET course or purported VET qualification which is false or misleading in a material particular (s 125); (d) purports to issue a qualification as a VET qualification which is not a VET qualification (s 127) (e) purports to issue a statement as a VET statement of attainment which is not a VET statement of attainment (s 129); or (3) a natural person purports to hold out a qualification as a VET qualification which the person knows or ought reasonably to have known is not a VET qualification (s 131).

PRINCIPLES APPLYING TO THE DISCRETION TO GRANT JUDGMENT IN DEFAULT 15 Rule 5.23(2) of the FCR relevantly provides that: If a respondent is in default, an applicant may apply to the Court for: … (c) if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings - an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or (d) an order giving judgment against the respondent for damages to be assessed, or any other order; or ... Note 1: The Court may make any order that the Court considers appropriate in the interests of justice - see rule 1.32. Note 2: An order or judgment under this Division may be set aside or varied. 16 Rule 5.22 sets out the circumstances in which a party is in default, namely: A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 17 First, as the Commonwealth submits, the requirement in r 5.23(2)(c) that the Court be satisfied that the applicant is entitled to relief on the statement of claim before judgment is entered against the respondent does not require proof by way of evidence of the applicant's claim. Rather as I explained in Hipages Group Pty Ltd v Reach Aussie Pty Ltd [2017] FCA 112 (Hipages): 20. … it is necessary to demonstrate that there is a claim for the relief sought on the face of the statement of claim: Australian Competition and Consumer Commission v dataline.net.au Pty Ltd (In Liq) [2007] FCAFC 146; (2007) 161 FCR 513 (Dataline (FCAFC)) at [42] (the Court); Searson v Salmon [2014] FCA 748 (Searson) at [6]; Titan Support Systems Inc v Nguyen [2014] FCA 884 (Titan) at [4]. Accordingly, the Court must be satisfied that the claim falls within its jurisdiction and each element of the relevant civil wrong must be properly and [discretely] pleaded: Titan at [4]. As I explained in Titan: 5. The reason why in general it is not appropriate to lead evidence on a default judgment is that the allegations contained in the statement of claim are taken to be admitted. Therefore considerations of fairness require that the admission of evidence to supplement the statement of claim be, in general, refused: ACCC v Dataline (2006) 236 ALR 665 at 678 [48] Kiefel J. 21 It follows that it would not be appropriate to allow reliance upon evidence that would alter the pleaded case or add to it where the matters which are the subject of evidence ought properly to have been pleaded: Dataline (FCAFC) at [42]; Australian Competition and Consumer Commission v dataline.net.au Pty Ltd [2006] FCA 1427; (2006) 236 ALR 665 (Dataline (FCA)) at [50]-[51] (Kiefel J); Titan at [6]. See also Yeo v Damos Earthmoving Pty Ltd [2011] FCA 1129 (Yeo) at [9] (Gordon J); and Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 (Speedo Holdings) at [18] and [23] (Flick J). 18 Nonetheless, as I explained in Titan Support Systems Inc v Nguyen [2014] FCA 884 (Titan): 6. … Evidence should be led, as here, of service of the originating application and statement of claim, and the amended originating application and amended statement of claim. Evidence was also led to prove service of the notice that the matter had been set down for hearing. … 19 Furthermore, the Court may permit an applicant to lead evidence concerning the appropriateness of the relief sought provided that it does not depart from or supplement the pleaded case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513 (Dataline (FCAFC)) at [42]. As I also explained in Titan at [6] (citing Kiefel J in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; (2006) 236 ALR 665 (Dataline (FCA)) at [49]): There is … some support in the authorities for the view that evidence might be permitted concerning matters which would not ordinarily be the subject of pleading concerning the appropriateness of granting the relief sought where the grant of that relief is discretionary … 20 Secondly, the Court's power to grant declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) extends to cases where a default judgment is sought. Provided that the form of declaration sought is appropriately expressed, circumstances in which the grant of such relief may be appropriate include cases brought, as here, by the regulator in the public interest. In this regard, Kiefel J in Dataline (FCA) held that: 59. … Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: "upon admissions which [the respondent in question] is taken to have made, and upon non-compliance with orders of the court". 21 The approach adopted by her Honour by the inclusion of the preface to the declarations was endorsed by the Full Court on appeal as "entirely appropriate" in Dataline (FCAFC) at [92]. Her Honour's observations have since been cited with approval on many occasions: see e.g. Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3) [2015] FCA 583 at [22]-[23] (Reeves J); Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279 at [2] (Pagone J) (in the context of making declarations by consent on agreed facts). 22 Thirdly, even where the elements of the cause of action have been properly and discretely pleaded and the cause of action would entitle the applicant to relief, the Court has a discretion as to whether to grant the relief claimed by way of a default judgment under r 5.23(2): Speedo Holdings at [20] (Flick J); Hipages at [19] and [25]. In this regard, there are no requirements of intentional default or contumelious conduct, inordinate or inexcusable delay, or prejudice to the respondent although these factors, if present, are likely to be significant: Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 395-396 (Wilcox and Gummow JJ). Furthermore, as the Commonwealth points out, the discretion must be exercised with caution, given the serious implications which the giving of a judgment in default may have for a respondent: Speedo Holdings at [20] (Flick J); Hipages at [25]. 23 While it would be undesirable to endeavour to set out an exhaustive list of the circumstances in which the power to give judgment in default might appropriately be exercised, the Full Court set out a non-exhaustive list of relevant considerations bearing upon the exercise of discretion to dismiss an applicant's claim under r 5.23(1)(a) in Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 (PAS Centres) at [44]. Those considerations, falling "[u]nder the umbrella of [the] overriding consideration" as to whether injustice would flow from the orders, were as follows: (i) the nature of the default involved; (ii) the duration of the default and whether it is continuing; (iii) the circumstances in which the orders, in respect of which default has occurred, were made including whether the orders made accorded with the practice of the court in making orders of that kind; (iv) the circumstances which occurred between the time of making the orders and the order for the dismissal of the proceeding, including whether any attempt was made by the defaulting party to amend or set aside the orders to accommodate or deal with these intervening circumstances; (v) whether the continuing default is occasioning unnecessary delay, expense or other prejudice or unacceptable burden on the respondent; (vi) the attitude of the applicant to the default and the court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period; (vii) the stage that the proceeding has reached - whether they have only recently been commenced; whether it has been commenced for some time but not advanced due, in whole or in part, to the default; or whether the proceeding is in an advanced state ready or nearly ready for hearing; (viii) the likely disruption to hearing dates or, if not fixed, to setting the matter down for hearing at an early date; (ix) the consequences to the applicant of dismissing the proceeding. 24 I agree with the Commonwealth's submission that by analogy, these considerations are relevant also to an application under r 5.23(2)(c) such as that made here.

CONSIDERATION OF THE APPLICATION FOR DEFAULT JUDGMENT

5.1 Background to, and overview of, the alleged contraventions 25 Ms Harrison conducted a business located in South Australia variously known as "Glow", "Glow Salon", "Glow Salon Hair and Beauty Training", "Glow Salon & Academy", and "Glow Salon Hair & Beauty Treatment Academy" (Glow Salon) (statement of claim at [5]-[6]). Ms Harrison operated, and either maintained or caused to be maintained, a Glow Salon email address, together with a Facebook account associated with Glow Salon at facebook.com/glow salon.academy (the Glow Salon Facebook page) and websites associated with Glow Salon at glowsalon.biz (the glowsalon.biz website) and glowacdemy.webs.com (the glowacdemy.webs.com website) (together the Glow Salon websites). 26 At all material times, training packages endorsed by the Ministerial Council (as defined in s 3 of the Act) were: (1) SIH11 - Hairdressing Training Package first endorsed by the Ministerial Council on 23 June 2011; (2) SIB10 - Beauty Training Package first endorsed by the Ministerial Council on 23 September 2010; (3) HLT07 - Health Training Package first endorsed by the Ministerial Council on 30 November 2006; (4) TAE10 - Training and Education Training Package first endorsed by the Ministerial Council on 14 February 2011; and (5) SHB - Hairdressing and Beauty Services Training Package first endorsed by the Ministerial Council on 22 September 2015. (statement of claim at [12]) 27 Schedule 1 to the statement of claim lists the qualifications which were either included in the training packages set out above or a VET accredited course; and were a VET course within the meaning of s 3 of the Act (statement of claim at [13]). Schedule 2 in turn lists each of the units of competency which were, from the date specified in the schedule, included in the training packages set out above and were at all material times a unit of competency and part of at least one VET course (statement of claim at [14]). 28 Against that background, the Commonwealth's primary allegations to found the grant of declaratory and other relief may be summarised as follows. 29 First, the Commonwealth alleges that Ms Harrison contravened s 117(1) of the Act on 134 occasions in the period between 23 January 2015 and 8 November 2016 because she offered to provide all or part of a VET course in South Australia to individuals in South Australia and Queensland, and in and throughout Australia via the Facebook page and Glow Salon websites, despite the fact that neither she nor Glow Salon were a RTO under the Act (originating application at [1]; statement of claim at [15]-[207]). I note in this regard that, as the Commonwealth submitted, each representation on each page within a website constituted a separate contravention of the Act. 30 Secondly, the Commonwealth contends that Ms Harrison issued VET statements of attainment and a VET qualification to individuals between 19 February 2015 and 26 April 2016 when they were not genuine VET statements of attainment or a genuine VET qualification contrary to ss 129 and 127 of the Act respectively (originating application at [3] and [5]; statement of claim at [211]-[258]). 31 Thirdly, the Commonwealth contends that between 19 February 2015 and 29 April 2016, Ms Harrison falsely represented that statements of attainment and qualifications were genuine VET statements of attainment and VET qualifications contrary to s 125 (originating application at [7]; statement of claim at [259]-[289]). 32 Fourthly, the Commonwealth alleges that on 27 July 2016, Ms Harrison contravened ss 131(1) and 125 by obtaining and displaying bogus VET qualifications in her own name concerning hairdressing and training and assessment, and falsely represented that the qualifications were legitimate VET qualifications issued to her by an RTO (originating application at [8]-[9]; statement of claim at [290]-[305]). 33 Finally, the Commonwealth contends that between 29 March 2015 to 27 July 2016, Ms Harrison contravened s 125 of the Act on six occasions because, in providing information to students and members of the public about VET courses or courses held out as such, Ms Harrison falsely represented that she was affiliated, partnered, or otherwise associated with genuine RTOs (originating application at [10]; statement of claim at [306]-[341]). 34 It is important also to note that the some of the alleged contraventions overlap. Specifically, the Commonwealth alleges that the Court should find that, in certain instances, Ms Harrison contravened multiple civil penalty provisions by a single act, and grant declaratory relief accordingly. In this regard, I agree with the Commonwealth's submission that the Court may declare that Ms Harrison's conduct contravened more than one provision, even though she will not be liable to more than one pecuniary penalty for that conduct by virtue of s 137(5) of the Act, which provides that: If conduct contravenes 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person for the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty for the same conduct. 35 I also note that as, for reasons explained below, the application for default judgment should be allowed on the ground that the primary causes of action pleaded have been discretely and properly pleaded and must be taken as admitted in line with the principles earlier referred to, I have not considered the alternative pleadings to certain of these allegations.

5.2 Jurisdiction 36 This Court has undoubted jurisdiction to hear and determine these proceedings and to grant the relief sought, namely, declarations of contraventions of civil penalty provisions of the Act, pecuniary penalties and costs, by reason of s 137 of the Act, ss 19 and 21 of the FCA Act, and s 39B(1A) of the Judiciary Act 1903 (Cth).

5.3 Acts of default by the respondent 37 In its written submissions, the Commonwealth conveniently summarised the respondent's failure to participate in the proceedings and the steps which it has taken to serve the respondent with the instituting and subsequent documents and orders made by the Court as follows (including references to passages in the evidence): 7.1 Between 12 November 2018 and 30 January 2019, the Applicant went to great lengths to serve the Originating Application, Concise Statement and other material on the Respondent, including in accordance with orders for substituted service made on 19 December 2018; substituted service affidavit, [6]; first affidavit of service; second affidavit of service; primary affidavit, [5]-[10]. 7.2 The Respondent was served with (amongst other things) the Originating Application and Concise Statement, pursuant to those orders, as long ago as 19 December 2018: first affidavit of service, [1]. While some pages of the accompanying material were missing, the copies of the Originating Application and Concise Statement served on the Respondent were complete: first affidavit of service, Annexures B and C. 7.3 Further steps were taken to serve the Respondent with complete copies of all material required to be served pursuant to the orders for substituted service: second affidavit of service. By 30 January 2019, all such material had been served: primary affidavit, [10]. 7.4 By reason of the substituted service orders, the Respondent was deemed to have been served by 13 February 2019. 7.5 The Respondent failed to appear at the first case management hearing on 13 February 2019: primary affidavit, [18]. 7.6 The Applicant has sought to contact the Respondent for the purpose of ensuring she is aware of, and giving her every opportunity to participate in, this proceeding. This has included advising the Respondent of listings and other developments in the proceeding: primary affidavit, [13], [17], [19], [24]-[25], [27]-[28], [30] and [33]-[34]. 7.7 The Respondent has not responded to the correspondence from either the Court or the Applicant: primary affidavit, [11], [14], [20], [26], [39] and [42.1]. 7.8 The Respondent has not filed an address for service, as required by r 5.02 of the Rules: primary affidavit, [42.2]. 7.9 The Respondent has not filed a Defence, as required by orders made by the Court on 29 March 2019 and as otherwise required by r 16.32 of the Rules: primary affidavit, [42.3]. 38 It follows, as the Commonwealth submits, that Ms Harrison has committed a number of acts of default, namely: her non-attendance at the first case management hearing; her failure to file an address for service and a defence as required by the FCR and by specific orders of the Court; and her non-attendance at the hearing of the application for judgment in default itself. Ms Harrison has also failed to defend the proceeding with due, or indeed any, diligence.

5.4 Do the pleadings provide a foundation for the declaratory relief sought by the Commonwealth?

5.4.1 Offers to provide VET courses (ss 117(1), Act) 39 As earlier explained, first the Commonwealth seeks a declaration that Ms Harrison contravened s 117(1) of the Act on 134 occasions in offering to provide VET courses, or parts of VET courses, in circumstances where she was not an NVR registered training organisation. 40 Section 117(1) of the Act provides that: (1) A person contravenes this subsection if: (a) the person provides, or offers to provide, all or part of a VET course in a referring State or a Territory; and (b) the person is not an NVR registered training organisation. Civil penalty: 600 penalty units. 41 At all material times, "referring State[s]" for the purposes of the Act included South Australia, Tasmania, New South Wales and Queensland. 42 A "VET course" is defined in s 3 of the Act in the following terms: VET course means: (a) the units of competency of a training package that is endorsed by the Ministerial Council; or (b) the modules of a VET accredited course; or (c) the modules of a course accredited by a VET Regulator of a non-referring State. 43 Relevantly, s 3 also provided that: NVR registered training organisation means a training organisation that is registered by the National VET Regulator as a registered training organisation under this Act. … registered training organisation means a training organisation listed on the National Register as a registered training organisation. Note: VET Regulators list training organisations on the National Register. 44 The "National Register" in turn is defined in s 3 to mean "the register maintained by the Department, or another person prescribed by the regulations, and referred to in section 216". 45 I agree with the Commonwealth's submission that each element of the statutory cause of action in s 117(1) of the Act in respect of each of the 134 alleged contraventions of that provision is satisfied on the pleadings. 46 First, the statement of claim pleads the facts constituting each offer. The offers were in some instances made via electronic and online correspondence to specific individuals in South Australia and Queensland, being referring States (statement of claim at [5.1], [6], [8], [21], [28], [38], [47] and [55]). In other cases, the offer was made throughout Australia and, therefore, including in the referring States and both Territories, via the Glow Salon websites and the Glow Salon Facebook page: see in particular statement of claim at [96]-[98], [153]-[155], [164]-[165], [172]-[173], [180]-[181], [188]-[189], [197]-[198], and [204]-[205]. 47 Secondly, each VET course, or part thereof, which was the subject of each offer, is specifically pleaded and each relates to units of competency of training packages which are endorsed by the Ministerial Council or modules of VET accredited courses: see above at [26]-[27] and the statement of claim generally at [15]-[207]. 48 Thirdly, the statement of claim pleads that neither Ms Harrison nor the entities through which she operated were RTOs at any material time (statement of claim at [10]-[11]). This pleading is repeated in relation to each specific alleged contravention (see e.g. statement of claim at [22], [29], and [48]). 49 It follows that the material facts establishing the elements of each contravention of s 117(1) alleged in the statement of claim have been discretely and properly pleaded.

5.4.2 Improper issuing of statements of attainment (ss 129 and 121, Act) 50 The Commonwealth next alleges that Ms Harrison contravened s 129 or, in the alternative, s 121 of the Act, on five occasions by purporting to issue five statements as VET statements of attainment despite the fact that she was not a RTO. 51 Section 129 of the Act provides that: A person contravenes this section if: (a) the person purports to issue a statement as a VET statement of attainment; and (b) the statement is not a VET statement of attainment. Civil penalty: 600 penalty units. 52 Section 3 provides the following definition: "VET statement of attainment, in relation to units of competency or modules of a VET course, means a statement given to a person confirming that the person has satisfied the requirements of units of competency or modules specified in the statement." 53 I agree with the Commonwealth that the elements of a contravention of s 129 of the Act are satisfied on the pleadings. 54 First, the statement of claim specifically identifies and pleads each statement which purported to be a VET statement: statement of claim at [214], [221], [228], [238], [245] and the certificates reproduced at Annexures B-F to the statement of claim. Furthermore, each statement conveyed to the particular student to whom it relates that she or he had been assessed by Glow Salon and/or Ms Harrison in relation to the units of competency to which it referred and identified "Glow Salon" as the "issuing organisation" and/or was signed by Ms Harrison: statement of claim at [215], [222], [229], [239] and [246]. 55 Secondly, the statement of claim pleads the facts by which it is alleged that Ms Harrison purported to issue each statement as a VET statement of attainment. In particular, as the Commonwealth submits, each statement used a description and/or course code which was either identical, or very similar, to genuine VET units of competency, conveyed that the student to whom the statement related had been assessed as having satisfied the requirements of the particular unit of competency, and bore markings and information similar to that required to be included in VET statements of attainment under the 2015 RTO Standards: statement of claim at [215], [222], [229], [239] and [246]. 56 Thirdly, the statement of claim pleads the material facts on the basis of which it is alleged that each statement was not a VET statement of attainment, namely: neither Ms Harrison nor Glow Salon was a RTO; and no genuine RTO issued, or authorised Ms Harrison to issue, the statement (statement of claim at [217]-[218], [224]-[225], [231]-[232], [241]-[242], and [248]-[249]). As such, as the Commonwealth submits, "while each statement purported to confirm that the relevant student had satisfied the requirements of the VET units of competency specified therein …, each statement did not in fact do so because the Respondent was not competent to assess whether those requirements had been satisfied, nor was she permitted to issue a statement of attainment confirming those matters." 57 It follows that the material facts necessary to establish the elements of each contravention of s 129 have also been discretely and properly pleaded and that there is no need to consider the alternative alleged contraventions of s 121 of the Act in respect of the conduct underlying these contraventions.

5.4.3 Improper issuing of a qualification (ss 127 and 119, Act) 58 The Commonwealth further alleges that Ms Harrison contravened s 127 or, in the alternative, s 119, in that on one occasion she purported to issue a qualification as a VET qualification ("Certificate 11 Nail Technology") in circumstances where she was not a RTO. 59 Section 127 provides that: A person contravenes this section if: (a) the person purports to issue a qualification as a VET qualification; and (b) the qualification is not a VET qualification. Civil penalty: 600 penalty units. 60 The term "VET qualification" is defined in s 3 to mean "a testamur, relating to a VET course, given to a person confirming that the person has achieved learning outcomes and competencies that satisfy the requirements of a qualification." 61 The Commonwealth submits that the elements of s 127 are satisfied on the pleadings. In particular, the Commonwealth submits that: 49.1 The SOC [i.e statement of claim] specifically identifies and pleads the qualification (i.e. the testamur) issued by the Respondent: SOC, [252] and Annexure G. The qualification conveyed that the student to which it relates had been assessed by Glow Salon and the Respondent in relation to the course referred to their: SOC, [254.2]. The qualification also identified 'Glow Salon' as the issuing organisation and was 'signed' by the Respondent: SOC, [254.3]. 49.2 The SOC also pleads the facts by which it is alleged that the Respondent purported to issue the qualification as a VET qualification. Without being exhausted, the qualification bore a description and course code that was identical to a genuine VET course, conveyed that the student to which it relates had been assessed as having achieved the learning outcomes and competencies that satisfy the requirements of the qualification referred to and bore markings on information similar to that required to be included in VET qualification is under the RTO Standards: SOC, [254]. 49.3 The SOC pleads the facts by which it is alleged that the qualification was not a VET qualification. In particular, neither the Respondent nor Glow Salon was an RTO, and no genuine RTO issued, or authorised the Respondent to issue, the qualification: SOC, [256]-[257]. Accordingly, while the qualification purported to confirm that the relevant student had achieved the learning outcomes and competencies that satisfy the requirements of the relevant qualification…, It did not in fact do so because the Respondent was not competent to assess whether those learning outcomes and competencies had been achieved, nor was she permitted to issue a qualification confirming that they had. 62 In my view, the Commonwealth submissions accurately describe the pleadings at [251]-[258] of the statement of claim relating to this alleged contravention and it is plain on the face of those pleadings that each element of the contravention of s 127 has been properly and discretely pleaded. As such, there is again no need for me to consider the alternative alleged contravention of s 119 of the Act.

5.4.4 False or misleading representations in relation to statements and qualifications (s 125, Act) 63 The Commonwealth also alleges that Ms Harrison acted in contravention of s 125 of the Act on six occasions by issuing the statements of attainment and qualification considered also at [50]-[62] above. 64 Section 125 of the Act provides that: A person contravenes this section if: (a) the person makes a representation that relates to: (i) all or part of a VET course; or (ii) a course that is held out as being a VET course; or (iii) part of a course that is held out as being part of a VET course; or (iv) a VET qualification; or (v) a qualification that is held out as being a VET qualification; and (b) the representation is false or misleading in a material particular. Civil penalty: 120 penalty units. 65 I agree with the Commonwealth's submissions that the elements of s 125 in respect of the alleged contraventions of that section are satisfied on the pleadings. Specifically, the statement of claim pleads that: (1) the relevant representations, namely, that in each case the statement of attainment and the qualification issued by Ms Harrison was a genuine VET statement or qualification; (2) the representations related to specific VET courses or parts of VET courses, being the VET courses or parts thereof to which the statement of attainment and qualification related; and (3) the representations were, on each occasion, false or misleading in a material particular because the statements of attainment and the qualification were not genuine and the fact of whether they were genuine was a material particular. (In relation to the representations concerning each of the statements of attainment, see the statement of claim at [259]-[263], [264]-[268], [269]-[273], [274]-[278], and [279]-[283], and concerning the qualification at [284]-[289].)

5.4.5 Using bogus VET qualifications (s 131(1), Act) 66 In addition, the Commonwealth alleges that Ms Harrison contravened s 131(1) of the Act on two occasions by obtaining two bogus VET qualifications and displaying them on the wall of Glow Salon's premises. 67 Section 131(1) of the Act provides that: (1) A natural person contravenes this subsection if: (a) the person obtains a qualification; and (b) the person knows, or a reasonable person in the circumstances could be expected to know, that the qualification is not a VET qualification; and (c) the person purports to hold the qualification as a VET qualification. Civil penalty: 240 penalty units. 68 The statement of claim pleads the material facts necessary to establish each element necessary to establish a contravention of s 131(1) , namely, that: (1) prior to 27 July 2016, Ms Harrison obtained 2 different qualifications in the form of certificates titled, first, "Certificate 111 in Hairdressing" bearing TAFE SA logos and markings and, secondly, "Certificate IV in Training and Assessment" bearing TAFE SA logos and markings, the code TAA40104 and the date 11 May 2007 (the Harrison certificates); (2) each of the certificates conveyed that it had been issued by the RTO marked on the certificate (i.e. TAFE SA), that TAFE SA was satisfied that Ms Harrison had achieved learning outcomes and competencies which satisfied the requirements of the relevant qualification, and that TAFE SA had given Ms Harrison the certificate to confirm those matters; (3) as at 27 July 2016, Ms Harrison displayed the certificates on the wall of Glow Salon's premises in Blair Athol, South Australia, as evidence of her qualifications and, by so doing, purported to hold out each of these certificates as a VET qualification; and (4) in fact each of these certificates was not a VET qualification including because Ms Harrison had not completed the requisite training, had not been assessed by TAFE SA, and knew that TAFE SA had not issued the certificates and, in any event, a reasonable person in Ms Harrison's circumstances could be expected to know that each of these certificates were not VET qualifications. (Statement of claim at [290]-[299]) 69 It follows that each of the elements of the contraventions of s 131(1) alleged in the statement of claim are properly and discretely pleaded.

5.4.6 False or misleading representations in relation to the bogus VET qualifications (s 125, Act) 70 The Commonwealth alleges that Ms Harrison contravened s 125 of the Act on two occasions by using the two bogus VET qualifications referred to at [68] above. Again, I am satisfied that the elements of s 125 with respect to these contentions are satisfied on the pleadings. In particular, the statement of claim pleads that: (1) by displaying each of the Harrison certificates in the circumstances earlier referred to, Ms Harrison represented to clientele and students of Glow Salon that each certificate was a genuine VET qualification; (2) the representations related to VET courses and were held out as being VET qualifications; (3) the genuineness of each certificate was a material particular; and (4) the representations were false or misleading because the qualifications in the form of the certificates were not genuine. (Statement of claim at [300]-[305]) 71 It follows that each element of the contraventions of s 125 alleged in the statement of claim is properly and discretely pleaded.

5.4.7 False or misleading representations in relation to relationships with RTOs (s 125, Act) 72 Finally, the Commonwealth alleges that Ms Harrison contravened s 125 of the Act on six further occasions by making false representations about her relationship with RTOs. Again, the elements of the alleged contraventions of s 125 are properly and discretely pleaded and are satisfied on the pleadings. Specifically, the statement of claim pleads: (1) the relevant representations, variously, that: (a) Ms Harrison was "affiliated" with an RTO; (b) "part of, or otherwise had an arrangement for the provision of training and qualifications through or with the authority of" an RTO; (c) had an arrangement or agreement for the provision of training and qualifications through or with the authority of RTOs; or (d) that RTOs were Glow Salon's "training provider"; (2) that the representations related to specific VET courses; and (3) that the representations were false or misleading in a material particular, specifically: (a) that the representations were false or misleading because Ms Harrison did not have a relationship with the RTOs; and (b) this was a material particular including because only RTOs can provide VET courses and issue genuine VET statements of attainment and VET qualifications. (Statement of claim at [306]-[341])

5.5 Discretionary considerations 73 It follows for the reasons set out above that the elements of each contravention of the civil penalty provisions have been properly pleaded and on the assumption that by reason of Ms Harrison's default she is taken to have admitted the pleadings, the admissions would establish the contraventions. 74 That being so, I consider that it is appropriate to grant judgment in default by way of the declaratory relief sought (leaving aside any further relief at this stage of the proceeding). 75 First, the evidence establishes that Ms Harrison has had every opportunity to participate in the proceeding and for whatever reason has not done so, even by taking the simple step of filing an address for service or responding to correspondence. Ms Harrison's complete failure to participate in the proceeding despite having been served with the proceeding on 19 December 2018 (and deemed to have been served by 13 February 2019) indicates her unwillingness or inability to cooperate in having the matter ready for trial at all, let alone within an acceptable period and, as such, fairness to the applicant would ordinarily require summary dismissal of the proceeding: Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396 (Wilcox and Gummow JJ); see also PAS Centres at [39] and Yeo at [5] and [11]. 76 Secondly, Ms Harrison has been aware of the Commonwealth's intention to seek default judgment since 26 February 2019 (primary affidavit at [19]). 77 Thirdly, this is not a case where any question arises as to the declaratory relief being sought extending beyond that of which Ms Harrison has had notice: Speedo Holdings at [33]. The declaratory relief which the Commonwealth seeks is identical to that sought in its originating application. 78 Finally, the Commonwealth submits that each of the factors identified by Gordon J in Yeo at [17] concerning whether declaratory relief should be granted, weigh in favour of the grant of declaratory relief in this case, namely: (1) whether the declaration will have any utility; (2) whether the proceeding involves a matter of public interest; and (3) whether the circumstances call for the marking of the Court's disapproval of the contravening conduct. 79 I agree that the litigation involves a significant public interest in that the conduct alleged involves a sustained pattern of behaviour undertaken in various ways including by offers to provide VET courses, the improper issuing of VET statements of attainment and qualifications, and false or misleading representations to individual clients and the public via representations on the Glow Salon websites, in contravention of the Act. Such behaviour undermines the protection which the Act is intended to afford to students and the public, and the integrity of the system of providing vocational education and training under the Act. In such cases, as Kiefel J held in Dataline (FCA) at [59]: Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes [sic] a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. 80 That being so, the grant of declaratory relief plainly has utility in that the declarations will mark the Court's disapproval of the contravening conduct and afford both specific deterrence to the respondent and general deterrence for other educational providers.

CONCLUSION 81 For these reasons, I consider that judgment in default should be given insofar as declaratory relief is sought in the originating application. Timetabling orders should be made in order to afford the parties the opportunity to lead any further evidence and submissions as to the pecuniary penalties sought and as to costs. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.