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Site Skills Group Pty Ltd v Administrative Appeals Tribunal [2019] FCA 1970 (22 November 2019)

Last Updated: 26 November 2019

FEDERAL COURT OF AUSTRALIA

Site Skills Group Pty Ltd v Administrative Appeals Tribunal [2019] FCA 1970

Review of:	Administrative Appeals Tribunal (Oral decision, Deputy President Hanger, 13 March 2019)
File number:	QUD 233 of 2019
Judge:	REEVES J
Date of judgment:	22 November 2019
Catchwords:	PRACTICE AND PROCEDURE – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and/or r 26 of the Federal Court Rules 2011 (Cth) – whether the Administrative Appeals Tribunal committed any jurisdictional error in making the procedural ruling – application granted
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) Education Services for Overseas Students Act 2000 (Cth) Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) National Vocational Education and Training Regulator Act 2011 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Annetts v McCann (1990) 170 CLR 596 Australian Trade Commission v South Bank Corporation (2000) 104 FCR 116; [2000] FCA 1322 Barker v Patrick Projects Pty Ltd (2014) 226 FCR 302; [2014] FCAFC 165 Eliezer v University of Sydney (2015) 239 FCR 381; [2015] FCA 1045 EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 218 FCR 316; [2014] FCAFC 8 Esposito v Commonwealth (2015) 235 FCR 1; [2015] FCAFC 160 Geographical Indications Committee v The Honourable Justice O’Connor (2000) 64 ALD 325; [2000] FCA 1877 Kimber v Owners of Strata Plan No 48216 (2017) 258 FCR 575;  [2017] FCAFC 226  Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599; [2019] HCA 3 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Productivity Partners Pty Ltd and Australian Skills Quality Authority [2018] AATA 4878 Riverside Nursing Care Pty Ltd v Administrative Appeals Tribunal [2001] FCA 1410 Standards for Registered Training Organisations (RTOs) 2015
Date of hearing:	26 July 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	47
Counsel for the Applicant:	Mr SA McLeod QC and Mr M Wilkinson
Solicitor for the Applicant:	HopgoodGanim
Counsel for the First Respondent:	The First Respondent filed a Submitting Notice
Counsel for the Second Respondent:	Ms M Brennan QC and Ms S Wright
Solicitor for the Second Respondent:	Australian Government Solicitor

ORDERS

THE COURT ORDERS THAT:

1. The applicant’s originating application filed 9 April 2019 is dismissed.
2. The applicant is to pay the second respondent’s costs to be taxed failing agreement.
3. Should any of the parties wish to seek a different order as to costs to that in Order 2, by close of business on 30 November 2019 that party is to notify the other parties.
4. If no notice is given in accordance with Order 3, Order 2 stands.
5. If notice is given in accordance with Order 3:

(a) by close of business on 5 December 2019, the party seeking the different costs order is to file and serve an outline of submissions, limited to five pages, and any supporting affidavit material;
(b) by close of business on 12 December 2019, the other parties are to file and serve an outline of submissions if they wish, limited to five pages, and any supporting affidavit material; and
(c) the question of costs will then be determined on the papers.

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1. The Australian Skills Quality Authority, the second respondent in this proceeding, has applied for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and/or r 26 of the Federal Court Rules 2011 (Cth) claiming that the applicant, Site Skills Group Pty Ltd, has no reasonable prospects of success. The proceeding itself concerns an interlocutory ruling made by the Administrative Appeals Tribunal on 13 March 2019. That ruling was made in the course of a proceeding relating to an application for merits review of a decision of the Authority made on 18 April 2018. In that decision, the Authority refused Site Skills’ application to renew its registration as a registered training organisation (RTO) under the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVETR Act).
2. For the reasons that follow, I consider the Authority has succeeded in its application and summary judgment will be entered in its favour.

FACTUAL BACKGROUND

3. The factual background to this matter is complicated. Pivotal to it are the activities of two companies that are related to Site Skills: Productivity Partners Pty Ltd, and their common parent company, Site Group International Limited. The latter is a public company which was listed on the Australian Securities Exchange in 2010. It established Site Skills in 2011 and acquired Productivity Partners in 2014. Also pivotal is an event which occurred on or about 28 February 2017. On that date, Mr Ian Cook, who was the serving Chief Executive Officer of Productivity Partners, resigned and was replaced by Mr Vernon Wills. At or about that time, Mr Wills was also the Chief Executive Officer of Site Skills. He remained in that position until March 2019.
4. On 5 May 2017, Productivity Partners applied to the Authority to renew its registration as a RTO. The Authority refused that application on 16 June 2017. At the same time, it cancelled Productivity Partners’ RTO registration under s 36(2)(f) of the NVETR Act and cancelled its registration as a registered provider pursuant to s 83(3)(c) of the Education Services for Overseas Students Act 2000 (Cth) (PP Decision).
5. In response, on 13 July 2017, Productivity Partners filed an application in the Tribunal seeking a review of that decision (the PP Proceeding).
6. As is already mentioned above, on 18 April 2018, Site Skills suffered a similar fate with respect to its registration as a RTO. On 24 April 2018, it also responded to the Authority’s decision by filing a review application in the Tribunal (the Site Skills Proceeding). At the same time, it applied for an order that the Authority’s decision be stayed. Initially the Authority consented to that stay application on the condition that Site Skills provide certain monthly reports to it. Accordingly, on 21 May 2018, the Tribunal ordered that the Authority’s decision be stayed until the Site Skills Proceeding was determined or until further order. Thereafter, during 2018, Site Skills and the Authority filed the affidavits and statements of the witnesses upon which they intended to rely in that proceeding.
7. In the meantime, on 26 April 2018, the Australian Government Solicitor (AGS), the Authority’s lawyer, sent a letter to HopgoodGanim, Site Skills’ lawyers, indicating its intention to ask the Tribunal to make findings in the PP Proceeding that a number of people connected with Productivity Partners, including Mr Ian Cook, Mr Daryl Sommerville, Mr Vernon Wills, Mr Blake Wills and Mr Joe Ganim, were not fit and proper persons to be involved in a RTO.
8. On or about 7 November 2018, the Australian Competition and Consumer Commission commenced proceedings in the Federal Court of Australia against Productivity Partners (the PP Federal Court Proceeding), among others, seeking orders including the following:

(a) a declaration that Productivity Partners had contravened the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)); and
(b) the payment of pecuniary penalties to the Commonwealth of Australia.

9. As a result, on 12 December 2018, Productivity Partners applied to the Tribunal to vacate all outstanding programming orders in the PP Proceeding. The Tribunal heard that application on 21 December 2018 and made the orders sought. The written reasons for that decision, Productivity Partners Pty Ltd and Australian Skills Quality Authority [2018] AATA 4878, were delivered on 18 January 2019. On 20 February 2019, the Authority filed an originating application in this Court seeking, among other relief, a writ of certiorari to quash this decision.
10. In the meantime, on 17 January 2019, the Authority filed the application in the Tribunal which led to the ruling at the centre of this proceeding. That application sought to have the hearing of the Site Skills Proceeding expedited. On the same day, AGS sent a letter to HopgoodGanim giving notice that it intended to put in issue in the Site Skills Proceeding Site Skills’ fitness for registration as a RTO because its Chief Executive Officer, Mr Vernon Wills, was the Chief Executive Officer of Productivity Partners when its registration as a RTO was cancelled (the Suitability Contention). In particular, it gave notice that it proposed to contend that Site Skills did not comply with standard 7.1(b) of the Standards for Registered Training Organisations (RTOs) 2015 (the Standards) and criteria (b) and (i) in Schedule 3 because Mr Wills was not a person in whom the public was likely to have confidence in his suitability to be involved in an organisation that provided, assessed or issued national recognised qualifications.
11. The Standards in question were made under ss 185(1) and 186(1) of the NVETR Act. Standard 7 is headed “The RTO has effective governance and administration arrangements in place”. Standard 7.1 provides as follows:

The RTO ensures that its executive officers or high managerial agent:

1. are vested with sufficient authority to ensure the RTO complies with the RTO Standards at all times; and
2. meet each of the relevant criteria specified in the Fit and Proper Person Requirements in Schedule 3.

12. The “Fit and Proper Person Requirements” in Schedule 3 to the Standards relevantly provide as follows:

Fit and Proper Person Requirements
Criteria for suitability
In assessing whether a person meets the Fit and Proper Person Requirements, the VET Regulator will have regard to the following considerations:
...

2. whether the person has ever been an executive officer or high managerial agent of an [sic – a] RTO at a time that the RTO had its registration on the National Register cancelled or suspended by its VET Regulator for having breached a condition imposed on its Registration;

...

1. whether the public is likely to have confidence in the person’s suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications;

...

13. The Tribunal heard the Authority’s application on 13 March 2019. At the conclusion of that hearing:

(a) it decided to permit the Authority to rely upon the Suitability Contention in the Site Skills Proceeding; and
(b) it made orders directed to undertaking an expedited hearing of the Site Skills Proceeding on or about 13 to 24 May 2019, or as soon as possible thereafter.

14. In his ex tempore reasons for that ruling, the Tribunal member began by outlining the nature of the application before him and some details of the background to it as follows:

This matter arose out of a directions hearing at which the applicant sought to have the matter listed for a speedy trial and the respondent said it would consent to a speedy trial so long as certain evidence was not admitted. The applicant appeals against the decision of the respondent to decline to reissue it’s registration as a registered training organisation.
The initial application was refused on the ground of non-compliance with certain standards. The respondent now seeks to rely as well as on non-compliance with fit and proper person requirements that are set out in [S]chedule 3 of the ... Standards to establish that Mr Willis [sic – Wills] is not a fit and proper person under those standards. The applicant has known about such a proposal for a considerable time.
The respondent points out that this tribunal must be satisfied that persons involved with a RTO are fit and proper persons. The respondent contends that Mr Wills is not a fit and proper person. To establish that the respondent seeks to deal with his behaviour in another company Productivity Partners, another RTO.
The problem is that the Productivity Partners also did not have its registration as an [sic – a] RTO renewed and has appealed. Senior Member Tavoularis of this tribunal granted a stay of the hearing of that appeal because Productivity Partners and its relevant officers are the subject of prosecution by ASIC in the Federal Court and if the AAT appeal was heard before the Federal Court trial the respondents in the Federal Court would be embarrassed in their preparation for the trial by evidence that they might have to give in the AAT. Effectively the Productivity Partners’ AAT hearing would involve substantially the same issues and witnesses as those involved in the Federal Court.

15. The Tribunal member then recorded Site Skills’ response to the Authority’s application and the Authority’s reply to that response as follows:

In the proceedings before me the respondent seeks to lead evidence about Mr Wills’ involvement in the company Productivity Partners but Mr Wills is not a witness there in the Federal Court proceedings and is not a party. The applicant argues that the issues in the proceedings before me will to a large extent involve the same evidence as will be heard in the Federal Court.
The respondent denies that and assures me whereas the Federal Court proceedings involve a great many witnesses to be called by the respondent to the AAT proceedings involve one ...

16. Finally, the Tribunal member briefly outlined his dispositive reasoning in deciding to grant the Authority’s application. Since those reasons are relatively brief, it is appropriate to set them out in full as follows:

... I am concerned with the behaviour of a certain person within another company and will be examining his behaviour and not that of the other respondents of [sic] any of the respondents in that case. I am satisfied that there is a need to have this matter speedily resolved. The company Site Skills Group is still trading because the initial decision was stayed by consent.
Given the controversy that has surrounded the education sector it is important that the public have confidence in it and that the public are likely to have confidence in Mr Wills’ suitability to be involved and whether he is a fit and proper person as set out in schedule 3 of the Standards. The objects of the relevant legislation provide in the [NVETR Act] that the object of the Act includes protecting and enhancing Australia’s reputation for VET nationally and internationally. And in the Education Services for Overseas Students Act 2000 object 4A(b) is to protect and to enhance Australia’s reputation for quality education and the training services.
... The tribunal would [be] derelict in its duty in failing to take account of Mr Wills’ behaviour in another RTO, if the respondent establishes that that behaviour was unacceptable according to the appropriate standards.
The issues in this matter involving both Mr Wills’ behaviour and Site Skills [sic – Skills’] behaviour can and should be determined quite separately from the issues in the Federal Court proceedings, which are against a different company and in which he is not a respondent. I have decided that the respondent in these proceedings is entitled to raise the issue of his conduct in Productivity Partners.
(Emphasis added)

17. It was this ruling that gave rise to the present proceeding. In its originating application filed on 9 April 2019, Site Skills sought a writ of certiorari to quash this ruling, claiming that it was affected by jurisdictional error.
18. On or about 24 March 2019, Mr Wills resigned as the Chief Executive Officer and the sole director of Site Skills.

THE GROUNDS OF REVIEW

19. Site Skills’ four grounds of review are outlined in the affidavit of Mr Brett St Clair Bolton which was filed in support of its originating application. Those four grounds, including their accompanying particulars, are as follows:

Ground 1: The Tribunal did not consider relevant considerations that it was bound to consider under s2A of the Administrative Appeals Tribunal Act 1975 (Cth).
Particulars of ground 1:
(a) On 13 July 2017, [Productivity Partners] applied to the Tribunal to review the [Authority’s] decision made on or about 16 June 2017 to cancel [Productivity Partners’] registration as a [RTO] ([PP Proceeding]).
(b) On 21 December 2018, the Tribunal vacated hearing dates and all outstanding directions in the [PP Proceeding]. The written reasons for that decision, Productivity Partners Pty Ltd and Australian Skills Quality Authority [2018] AATA 4878, were delivered on 18 January 2019 (PP AAT Proceeding Decision).
(c) On 20 February 2019, the [Authority] filed in the Federal Court of Australia an Originating Application (proceeding QUD145/2019) pursuant to s39B of the Judiciary Act 1903 (Cth), which sought, among other relief, a writ of certiorari to quash the PP AAT Proceeding Decision (ASQA Federal Court Application).
(d) As at 13 March 2019, Mr Vern Wills was the chief executive officer of [Site Skills].
(e) At the hearing in the [Site Skills] Proceeding on 13 March 2019, the [Authority] contended that [Site Skills] did not comply with Clause 7.1(b) of the Standards because Mr Vern Wills:

1. had been an executive officer of [Productivity Partners] at the time that it had its registration on the National Register cancelled or suspended (Schedule 3, criteria (b), of the ... Standards) in June 2017 (Cancellation Contention); and
2. was not a person in whom the public is likely to have confidence in his suitability to be involved in an organisation that provides, assesses, or issues national recognised qualifications (Schedule 3, criteria (i), of the ... Standards) (Suitability Contention).

(f) The Cancellation Contention and the Suitability Contention were not originally relied on by the [Authority] as part of its reasons for the Decision.
(g) Until 17 January 2019, the [Authority] had made the deliberate decision to raise the Cancellation Contention and the Suitability Contention in only the [PP Proceeding].
(h) By 17 January 2019, the [Authority] had filed the majority of its evidence in the [Site Skills] Proceeding.
(i) The [Authority] filed an application for directions on 17 January 2019 and sought to introduce the Cancellation Contention and the Suitability Contention in the [Site Skills] Proceeding as a direct result of the PP AAT Proceeding Decision ...
(j) The first occasion on which the [Authority] had sought to introduce the Cancellation Contention and the Suitability Contention in the [Site Skills] Proceeding was in the [Authority’s] application for directions filed on 17 January 2019.
(k) During the course of the hearing on 13 March 2019, the Tribunal:

1. accepted that in the [Site Skills] Proceeding the only conduct of Mr Wills which was complained of was “what he’s done in [Productivity Partners]” ...
2. accepted submissions that Mr Wills’ knowledge (and by extension, the Suitability Contention) was:
   1. “conditional on [the Authority] establishing the truth of the matters” alleged about [Productivity Partners] ... ; and
   2. “completely dependent” on the truth of the matters alleged about [Productivity Partners] ...

(l) In the premises, the Tribunal could not decide the Suitability Contention without first making findings about [Productivity Partners].
(m) On 13 March 2019, the Tribunal decided to:

1. permit the [Authority] to introduce the Cancellation Contention and the Suitability Contention in the [Site Skills] Proceeding; and
2. set down the Site Skills Proceeding for an expedited hearing between 13 and 24 May 2019

(13 March 2019 Decision).

(n) For the Tribunal to decide the Suitability Contention in the [Site Skills] Proceeding, the Tribunal in the [Site Skills] Proceeding is required to make findings about:

1. the operation, conduct, and behaviour of [Productivity Partners]; and
2. Mr Wills’ knowledge of, or involvement in, [Productivity Partners’] operation, conduct, and behaviour.

(o) Neither [Productivity Partners] nor Mr Wills are parties to the [Site Skills] Proceeding.
(p) In making the 13 March 2019 Decision, the Tribunal did not have regard to the following relevant considerations:

1. the prejudice caused to [Site Skills], [Productivity Partners], or Mr Wills by:
   1. the late introduction of the Suitability Contention in the [Site Skills] Proceeding; and
   2. the requirement of two non-parties to the [Site Skills] Proceeding (namely Mr Wills and [Productivity Partners]) to litigate in the [Site Skills] Proceeding the Suitability Contention;
2. that the abovementioned prejudice was unfair to [Site Skills], [Productivity Partners], and Mr Wills;
3. the fact that until 17 January 2019, the [Authority] had decided to raise the Cancellation Contention and the Suitability Contention only in the PP Proceeding;
4. the fact that [Site Skills] consented to an expedited hearing of the [Site Skills] Proceeding which included only the Cancellation Contention so as to alleviate the abovementioned prejudice and unfairness;
5. that the Federal Court of Australia might quash the PP AAT Proceeding Decision because of the [Authority’s] Federal Court Application with the result that the Suitability Contention would be decided by the Tribunal in the [PP Proceeding];
6. that if the Suitability Contention were decided in both the [Site Skills] Proceeding and the [PP Proceeding], it may lead to:
   1. a multiplicity of findings by the Tribunal; and
   2. an inefficient use of the Tribunal’s and the parties’ resources;

(q) The considerations were relevant, and the Tribunal was bound to consider them because of s2A of the Administrative Appeals Tribunal Act 1975 (Cth) and, in particular:

1. the objective of achieving a fair, just, economical, informal, and quick mechanism of review in the [Site Skills] Proceeding; and
2. the objective of promoting public trust and confidence in the decision-making of the Tribunal.

Ground 2: The Tribunal made an erroneous finding (or alternatively, reached a mistaken conclusion) that, in deciding the Suitability Contention in the [Site Skills] Proceeding, the Tribunal would not be examining the behaviour of [Productivity Partners].
Particulars of ground 2:
(a) [Productivity Partners] is a respondent to the proceeding filed by the Australian Competition and Consumer Commission on 7 November 2018 in the Federal Court of Australia (NSD2059/2018) ([PP] Federal Court Proceeding).
(b) In the [PP] Federal Court Proceeding, the Australian Competition and Consumer Commission seeks, among other things:

1. a declaration that [Productivity Partners] has contravened the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)); and
2. the payment of pecuniary penalties by [Productivity Partners] to the Commonwealth.

(c) During the course of the hearing on 13 March 2019, the Tribunal:

1. accepted that in the [Site Skills] Proceeding the only conduct of Mr Wills which was complained of was “what he’s done in [Productivity Partners]” ...
2. accepted submissions that Mr Wills’ knowledge (and by extension, the Suitability Contention) was:
   1. “conditional on [the Authority] establishing the truth of the matters” alleged about [Productivity Partners] ... ; and
   2. “completely dependent” on the truth of the matters alleged about [Productivity Partners] ...

(d) In the premises, the Tribunal could not decide the Suitability Contention without first making findings about [Productivity Partners], and in particular, the matters the subject of the [PP Proceeding] and the [PP] Federal Court Proceeding.
(e) In his reasons for the decision, the Deputy President said ... “I am concerned with the behaviour of a certain person within another company and will be examining his behaviour and not that of other respondents of [sic] any of the respondents in that case”;
(f) In the premises, the Tribunal made the erroneous finding (or alternatively, reached the mistaken conclusion) that, in deciding the Suitability Contention in the [Site Skills] Proceeding, the Tribunal would not be examining the behaviour of [Productivity Partners], which was a respondent to the [PP] Federal Court Proceeding and the [PP Proceeding].
(g) The erroneous finding (or alternatively, the mistaken conclusion) affected the Tribunal’s exercise of power because it was the basis, or alternatively, one of the bases, of the Tribunal’s decision to permit the Suitability Contention to be raised in the [Site Skills] Proceeding and heard on an expedited basis.
Ground 3: The Tribunal took into account an irrelevant consideration, for which there was no evidence, in reaching its decision.
Particulars of ground 3:
(a) In his reasons for Decision, the Deputy President stated ... that: “given the controversy that has surrounded the education sector”.
(b) That statement, for which there was no evidence, was a matter which the Tribunal took into account to justify that “the [T]ribunal would be derelict in its duty in failing to take into account of Mr Wills’ behaviour in another RTO” ...
(c) The taking of this matter into account was irrelevant and erroneous and affected the Tribunal’s exercise of power.
Ground 4: The Tribunal’s finding that the Suitability Contention could be decided in the [Site Skills] Proceeding without examining the behaviour of [Productivity Partners] was unreasonable, or illogical, or irrational.
Particulars of ground 4:
(a) [Productivity Partners] is a respondent to the proceeding filed by the Australian Competition and Consumer Commission on 7 November 2018 in the Federal Court of Australia (NSD2059/2018) ([PP] Federal Court Proceeding).
(b) In the [PP] Federal Court Proceeding, the Australian Competition and Consumer Commission seeks, among other things:

1. a declaration that [Productivity Partners] has contravened the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)); and
2. the payment of pecuniary penalties to the Commonwealth.

(c) During the course of the hearing on 13 March 2019, the Tribunal:

1. accepted that in the [Site Skills] Proceeding the only conduct of Mr Wills which was complained of was “what he’s done in [Productivity Partners]” ...
2. accepted submissions that Mr Wills’ knowledge (and by extension, the Suitability Contention) was:
   1. “conditional on [the Authority] establishing the truth of the matters” alleged about [Productivity Partners] ... ; and
   2. “completely dependent” on the truth of the matters alleged about [Productivity Partners] ...

(d) In the premises, the Tribunal could not decide the Suitability Contention without first making findings about [Productivity Partners], and in particular, the matters the subject of the [PP Proceeding] and the [PP] Federal Court Proceeding.
(e) In his reasons for the decision, the Deputy President stated ... “I am concerned with the behaviour of a certain person within another company and will be examining his behaviour and not that of other respondents of [sic] any of the respondents in that case”;
(f) In the premises, the Tribunal’s finding that the Tribunal would not be examining the behaviour of [Productivity Partners] in determining the Suitability Contention was unreasonable, illogical, or irrational.
(g) The Tribunal’s unreasonable, illogical, or irrational finding affected the Tribunal’s exercise of power because it was the basis, or alternatively, one of the bases, of the Tribunal’s decision to permit the Suitability Contention to be raised in the [Site Skills] Proceeding and heard on an expedited basis.
(Errors in original; emphasis in original)

CONTENTIONS

20. The parties were in broad agreement as to the principles that applied to an application for summary judgment of the present kind. Nonetheless, Site Skills emphasised that, although the threshold for summary judgment was lower in s 31A of the FCA Act, it must still be exercised with caution. For its part, the Authority contended that summary judgment should be entered in its favour under s 31A(2) of the FCA Act because Site Skills’ substantive application in this proceeding had no reasonable prospects of success. It contended that was so because: no jurisdictional error had been disclosed; no error on the face of the record had been identified; the application merely challenged a procedural direction in circumstances where there were adequate avenues of appeal under s 44 of the AAT Act; and the application was founded on the assumption that the Tribunal should conduct a review which was not in compliance with the AAT Act, that is, by ignoring the mandatory conditions in the NVETR Act and, in particular, whether Site Skills was in breach of Standard 7.1 in that its Chief Executive Officer, Mr Wills, failed to satisfy the fit and proper person requirements.
21. In support of these contentions, the Authority emphasised that: it gave notice to Site Skills of its intention to introduce the Suitability Contention in January 2019, before the Site Skills Proceeding had been set down for hearing; Productivity Partners and Mr Wills were not parties to the Site Skills Proceeding and any prejudice they may suffer as a consequence of the Site Skills Proceeding proceeding to a hearing was immaterial to the Tribunal’s ruling; in making the ruling, the Tribunal “clearly understood its task”; and the comments made by the Tribunal member could not be regarded as a finding of fact about how the Tribunal intended to address the issue of Mr Wills’ behaviour and, even if it were, that finding did not constitute jurisdictional error.
22. In the alternative, the Authority contended that Site Skills’ application was vexatious because it was commenced, or continued, for a collateral or improper purpose, namely to delay the Site Skills Proceeding to protect Site Skills’ commercial interests. Because I accept the Authority’s primary ground for this application, it is unnecessary to provide further details of its contentions on this alternative ground, nor to consider that alternate ground further in these reasons. In the further alternative, the Authority contended that, even if Site Skills could establish jurisdictional error in the Tribunal’s ruling, in this instance the Court should deny relief on discretionary grounds because Site Skills was seeking to challenge an interlocutory procedural ruling of the Tribunal. For the same reason as I have given above, it will also be unnecessary to consider this further alternative ground.
23. Site Skills’ position with respect to its four grounds of review in this proceeding are elaborated in some detail in the particulars to those grounds above (see at [19]). That being so, it is only necessary to record the following additional, or supplementary, submissions it made in its opposition to this application. First, it stated that it no longer wished to contend that the matters described in [(p)(iv)], [(p)(v)] and [(p)(vi)] of Ground 1 above were relevant considerations. Secondly, it submitted that the Tribunal committed an abuse of its statutory power under s 2A of the AAT Act by not taking account of the prejudice that may be caused to Productivity Partners and Mr Wills by the late introduction of the Suitability Contention. Thirdly, it submitted that the Tribunal made an error in concluding that it could examine the behaviour of Mr Wills without examining Productivity Partners’ behaviour and that this constituted a jurisdictional error because it was fundamental to the Tribunal’s ruling. Fourthly, or alternatively, it submitted that the Tribunal’s findings in this regard were “unreasonable, illogical, or irrational” because it “was impossible to find that Mr Wills’ [behaviour], knowledge, or involvement could be examined without first examining the [behaviour] of [Productivity Partners]”. Finally, it submitted that the Tribunal also erred in making a reference to “the controversy that has surrounded the education sector” because that was an irrelevant consideration for which there was no evidence.
24. In response to the Authority’s contentions above, Site Skills made the following submissions. First, that it did not seek review of the Tribunal’s decision on the basis that there was an error on the face of the record. Secondly, that a writ of certiorari may be issued to quash a decision vitiated by jurisdictional error even if the error is not an error on the face of the record. Thirdly, that this Court has original jurisdiction to hear this application under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and it has the power to issue a writ of certiorari under s 23 of the FCA Act. Finally, that an erroneous finding, or mistaken conclusion, can amount to jurisdictional error if it affects the Tribunal’s exercise of power.

LEGISLATION

25. The parts of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) that are pertinent to this application are as follows. First, s 2A(b) provides:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
...
(b) is fair, just, economical, informal and quick ...

26. Then s 33 of the AAT Act relevantly provides:

(1) In a proceeding before the Tribunal:

(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

...
Directions hearing
(1A) The President or an authorised member may hold a directions hearing in relation to a proceeding.
Who may give directions
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:

(a) where the hearing of the proceeding has not commenced––by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b) where the hearing of the proceeding has commenced––by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.

Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e) require witnesses to give evidence at the same time; or
(f) limit the time for giving evidence or making oral submissions; or
(g) limit the length of written submissions.

27. Finally, s 44 of the AAT Act relevantly provides:

Appeal on question of law

(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Note 1: This Part does not apply to certain migration proceedings (see section 43C).
Note 2: A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA).

...

28. Apart from the Standards which are already set out above, the sections of the NVETR Act, or parts thereof, that are pertinent to this application are as follows:
    17. Registration

Grant of application for registration
(1) The National VET Regulator may grant an application for registration.
(2) In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:

(a) the VET Quality Framework; and
(b) the applicable conditions of registration set out in Subdivision B of this Division.

(3) When considering the application, the National VET Regulator may conduct an audit of any matter relating to the application.
(4) The National VET Regulator may charge a registration assessment fee for considering the application.
Period of registration
(5) If the National VET Regulator grants an application, the Regulator must also determine the period for which the applicant is registered. The period must not be more than 7 years.

Note: For renewals of registration, see section 31.

Conditions of registration
(6) If the National VET Regulator considers it appropriate to do so, the Regulator may impose one or more conditions under subsection 29(1) to which an organisation’s registration is subject.

Note: An NVR registered training organisation is also subject to statutory conditions, see Subdivision B of this Division.

...

31. Renewal of registration

(1) The National VET Regulator may renew an NVR registered training organisation’s registration under section 17 if the organisation makes an application for renewal:

(a) at least 90 days before the day the organisation’s registration expires; or
(b) within such shorter period as the Regulator allows.

(2) An application must be accompanied by the application fee determined by the Minister, by legislative instrument, under section 232.
(3) An NVR registered training organisation’s registration is taken to continue until the organisation’s application is decided.
(4) An NVR registered training organisation may apply for renewal of registration during a period when all or part of its scope of registration is suspended.

THE PRINCIPLES ON SUMMARY JUDGMENT

29. As is already noted above, there is no dispute between the parties on the principles applicable to an application for summary judgment of the present kind. Those principles were conveniently summarised by Perry J in Eliezer v University of Sydney (2015) 239 FCR 381; [2015] FCA 1045 at [35]–[39] (approved by the Full Court in Kimber v Owners of Strata Plan No 48216 (2017) 258 FCR 575;  [2017] FCAFC 226  at [62]) as follows:
    35. First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J).
    36. Secondly, as the respondents submit, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130”: White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at [54] (Lindgren J); see also Cassimatis at [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [52]-[53]:

... effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. ... [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

37. Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at [50] (Reeves J).
38. In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).
39. Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at [46] that:

... the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

30. Having regard to these principles, and for the reasons that follow, I consider that the Authority has established that Site Skills has no reasonable prospects of success in this proceeding.

THE COURT HAS JURISDICTION AND POWER

31. First, I agree with Site Skills that the Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) to review a procedural or interim decision of the Tribunal (see Australian Trade Commission v South Bank Corporation (2000) 104 FCR 116; [2000] FCA 1322 at [30] per Kiefel J and Geographical Indications Committee v The Honourable Justice O’Connor (2000) 64 ALD 325; [2000] FCA 1877 (GIC) at [21] per von Doussa, O’Loughlin and Mansfield JJ). As well, I agree with Site Skills that, since this matter falls within its original jurisdiction, the Court has the power to order a writ of certiorari under s 23 of the FCA Act as a “stand alone” remedy (see EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 218 FCR 316; [2014] FCAFC 8 at [55] per Dowsett J (with whom North and Bromberg JJ agreed at [22]) and Barker v Patrick Projects Pty Ltd (2014) 226 FCR 302; [2014] FCAFC 165 at [29] per Katzmann J (with whom Dowsett and Tracey JJ agreed)). It necessarily follows that I reject the Authority’s contentions to the contrary on these matters.

GROUND 1 – NO JURISDICTIONAL ERROR IN FAILING TO CONSIDER THE ALLEGED PREJUDICE

32. There is a number of reasons why this ground has no merit and why it, and Site Skills’ contentions in support of it, must be rejected. First, properly characterised, the Tribunal’s ruling was a conclusion on a factual matter drawn in connection with an issue of practice and procedure and it did not therefore involve any jurisdictional error. Secondly, and in any event, the prejudice that may be suffered by Productivity Partners and/or Mr Wills, if the Site Skills Proceeding were to continue, does not constitute a relevant consideration under s 2A of the AAT Act and a failure to consider that consideration could not, therefore, result in jurisdictional error in the Tribunal’s ruling. Thirdly, even accepting that such prejudice could constitute a relevant consideration under that provision of the Act and/or at common law, it is too early in the Site Skills Proceeding to say whether that prejudice may eventuate. Put differently, Site Skills has failed to establish that the Tribunal’s failure to have regard to that consideration was “material” in a jurisdictional error sense. My reasons for these conclusions are as follows.
33. As to the first reason, it is necessary to begin by identifying the gist of the Tribunal’s ruling. That is set out in the final paragraph of its ex tempore reasons above (at [16]), as follows:

The issues in this matter involving both Mr Wills’ behaviour and Site Skills [sic – Skills’] behaviour can and should be determined quite separately from the issues in the Federal Court proceedings, which are against a different company and in which he is not a respondent.

34. Quintessentially, this is a conclusion of fact: whether the behaviour of Mr Wills and Site Skills can be considered separately from the issues involving Productivity Partners in the PP Federal Court Proceeding. It constitutes a clear rejection of Site Skills’ contentions to the contrary with respect to that factual issue (see, for example, at [19], Ground 1(n) above). Moreover, it is a conclusion which is directly connected to ruling on a matter of practice and procedure, namely “the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal” (see s 33(2) of the AAT Act at [26] above). It follows that, absent the sorts of procedural fairness considerations discussed below, even if the Tribunal erred in this conclusion, it could not be characterised as a jurisdictional error.
35. As to the second reason, the relevant consideration advanced by Site Skills is the prejudice that it claims may be suffered by Productivity Partners and/or Mr Wills should the Tribunal proceed to consider the Suitability Contention in the Site Skills Proceeding while the PP Federal Court Proceeding remains on foot. In order for Site Skills to establish that such prejudice constitutes a relevant consideration for the purposes of demonstrating that the Authority committed a jurisdictional error with respect to it, it needs to show that the Tribunal was bound to have regard to that consideration (see Esposito v Commonwealth (2015) 235 FCR 1; [2015] FCAFC 160 at [123] per Allsop CJ, Flick and Perram JJ, referring to Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39–40 per Mason J).
36. To meet this test, Site Skills has relied upon s 2A of the AAT Act. It can be seen from that section above (at [25]) that it is directed to the manner in which the Tribunal carries out its functions as a body conducting merits based reviews of administrative decisions. Among other things, it requires the Tribunal to conduct that review function fairly and justly. However, it is important to note that that requirement does not apply to the world at large. Its text and context plainly indicate that it is confined to the parties to review proceedings before the Tribunal. Hence, the Tribunal’s power under s 33 of the AAT Act to give directions is focused on the parties to a proceeding (see, for example, ss 2A(a) and (c) at [26] above). Similarly, the right of appeal under s 44 is limited to “[a] party to a proceeding” (see s 44(1) at [27] above). Accordingly, since Productivity Partners, and/or Mr Wills, are not parties to the Site Skills Proceeding, they cannot, in my view, rely upon s 2A as a relevant consideration to which the Tribunal was bound to have regard.
37. This is not to deny that the interests of third parties to a proceeding before the Tribunal may attract procedural fairness considerations in certain circumstances. So much is clear from the High Court judgment in Annetts v McCann (1990) 170 CLR 596 at 599 per Mason CJ and Deane and McHugh JJ and at 604, 607 and 609 per Brennan J. Which brings me to the third reason above. When, or if, prejudice of that kind arises in the Site Skills Proceeding will be a matter for the Tribunal to assess as it proceeds to hear and determine that proceeding. However, it is too early at this stage of the Site Skills Proceeding to say whether the hearing and determination of that proceeding may have that effect on Productivity Partners and/or Mr Wills. Or, viewed in a jurisdictional error context, it is too early to say whether a failure to have regard to that prejudice “could realistically have resulted in a different decision” (see Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599; [2019] HCA 3 at [45] per Bell, Gageler and Keane JJ).
38. It is worth noting that it was this factor, along with the reluctance of courts to fragment and delay the trial of proceedings by allowing appeals against interlocutory decisions involving matters of practice and procedure, that persuaded the Full Court in GIC against granting relief (see GIC at [26]–[28]). Similarly, see the decision of Sundberg J in Riverside Nursing Care Pty Ltd v Administrative Appeals Tribunal [2001] FCA 1410 at [6], which dealt with a procedural ruling by the Tribunal as to the order in which the parties to a proceeding should present their cases.
39. For these reasons, I do not consider Site Skills has reasonable prospects of success on ground 1.

GROUNDS 2 AND 4 – NO JURISDICTIONAL ERROR OR LEGAL UNREASONABLENESS IN THE TRIBUNAL’S COMMENTS

40. These two grounds concern the same finding and can therefore be dealt with together. That finding appears in the first paragraph of the Tribunal’s dispositive reasoning above (see at [16]) as follows:

I am concerned with the behaviour of a certain person within another company and will be examining his behaviour and not that of other respondents of [sic] any of the respondents in that case.

41. Site Skills contends that the Tribunal was incorrect in making this finding. It claims that is so because “the [behaviour], knowledge, or involvement of the ‘certain person’ (namely, Mr Wills) could not be examined without first examining the behaviour of [Productivity Partners], which was a respondent in the Federal Court proceeding” (emphasis removed).
42. The short answer to ground 2 has already been provided in dismissing ground 1 above. Quintessentially, this is also a finding of fact. Accordingly, my reasoning with respect to that ground applies equally to this ground. Ground 4 can be disposed of with similar brevity. Under that ground, Site Skills contends that this finding is infected by legal unreasonableness. It claims it was “impossible to find that Mr Wills’ [behaviour], knowledge, or involvement could be examined without first examining the behaviour of [Productivity Partners]”. It also claims that: “[o]n the accepted facts ... there was no logical pathway” to this conclusion. In making these contentions, Site Skills accepted that “the degree of irrationality or illogicality required to amount to jurisdictional error is a demanding and rare standard, namely that a decision is so unreasonable that no reasonable decision maker could have made it”.
43. In my view, Site Skills has not come close to meeting the demanding standard to which it referred. In short, there is no relevant illogicality, or irrationality, in the Tribunal’s conclusion that Mr Wills’ behaviour vis-à-vis Site Skills could be considered and determined in the Site Skills Proceeding separately from his behaviour vis-à-vis Productivity Partners. In reaching this conclusion, I have had regard to the principles relating to legal unreasonableness which are illuminated at some length in the High Court judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and subsequent Full Court decisions, for example, Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [54]–[65].
44. For these reasons, I do not consider Site Skills has reasonable prospects of success on grounds 2 or 4.

GROUND 3 – NO JURISDICTIONAL ERROR IN MAKING PASSING REFERENCE

45. This ground involves an attempt to elevate the Tribunal’s reference to “the controversy that has surrounded the education sector” (emphasised at [16] above) to a finding that was instrumental to the Tribunal’s ruling. Neither of these propositions can be accepted. When it is read in context, this reference was, in my view, merely a passing comment about a matter of public knowledge concerning the circumstances surrounding the proceedings. It was not a finding on an issue of fact raised by the parties and, read in the context of the reasons as a whole, it had no material effect on the reasoning process that underpinned the Tribunal’s ruling. Even if it were such a finding, for the reasons given above, it could not establish jurisdictional error in the Tribunal’s ruling.
46. For these reasons, I also do not consider Site Skills has reasonable prospects of success on ground 3.

CONCLUSION – THE AUTHORITY IS ENTITLED TO SUMMARY JUDGMENT

47. For these reasons, I do not consider Site Skills has reasonable prospects of success in any of its four grounds of review. In coming to this conclusion, I have had due regard to the caution that should attend it (see at [29(38)] above). It follows that I consider the Authority has succeeded in its application to have summary judgment entered in its favour under s 31A(2) of the FCA Act. In practical terms, this means Site Skills’ originating application should be dismissed. As is already noted above, having come to this conclusion it is unnecessary to consider the Authority’s alternative grounds. The orders will be:
    1. The applicant’s originating application filed 9 April 2019 is dismissed.
    2. The applicant is to pay the second respondent’s costs to be taxed failing agreement.

Associate:

Dated: 22 November 2019