Commonwealth of Australia v Rose Training Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 01 February 2022
• Neutral Citation: [2022] FCA 36
• Date: 01 February 2022

Federal Court of Australia

Commonwealth of Australia v Rose Training Australia Pty Ltd [2022] FCA 36

File number:	QUD 233 of 2020
Judgment of:	COLLIER J
Date of judgment:	1 February 2022
Catchwords:	EDUCATION – penalties – where multiple contraventions of ss 94 and 96 of the National Vocational Education and Training Regulator Act 2011 (Cth) – where respondent provided, or offered to provide, vocational education and training (VET) courses, and purported to issue VET qualifications in relation to a VET course that was not within the scope of its registration – where respondent admitted contraventions and cooperated in production of statement of agreed facts and joint submissions on appropriate range of penalties.
Legislation:	National Vocational Education and Training Regulator Act 2011 (Cth) ss 94, 96)
Cases cited:	Commonwealth of Australia v Harrison (No. 2) [2020] FCA 786 Commonwealth of Australia v King [2019] FCA 787 Commonwealth of Australia v Wright Solution Qld Pty Ltd [2018] FCA 1575
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	35
Date of last submissions:	14 July 2021
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Ms Claire Schneider
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr Matthew Jones
Solicitor for the Respondent:	Cooper Grace Ward

ORDERS

		QUD 233 of 2020
BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	ROSE TRAINING AUSTRALIA PTY LTD Respondent

order made by:	COLLIER J
DATE OF ORDER:	1 February 2022

UPON HEARING JOINT SUBMISSIONS AND AN AGREED STATEMENT OF FACTS BY THE PARTIES THE COURT DECLARES BY CONSENT THAT:

1. The Respondent contravened s 96 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) on a total of 8 occasions by purporting on each occasion to issue a vocational educational training (VET) qualification in relation to a VET course that was not within the scope of Rose Training’s registration as an NVR registered training organisation, as follows:

   1. on 25 October 2017, purporting to issue to Kimberley Proudlock:

      1. a testamur stating that Ms Proudlock had satisfied the requirements of TAE50111 Diploma of Vocational Education and Training;

      2. a testamur stating that Ms Proudlock had satisfied the requirements of TAE50211 Diploma of Training Design and Development;

   2. On 11 June 2018, purporting to issue to Angela Cush a testamur stating that Ms Cush had satisfied the requirements of TAE50111 Diploma of Vocational Education and Training;

   3. on 27 April 2018, purporting to issue to Paul Norris a testamur stating that Mr Norris had satisfied the requirements of TAE50211 Diploma of Training Design and Development;

   4. on 19 December 2018, purporting to issue to Patricia Saltmer a testamur stating that Ms Saltmer had satisfied the requirements of TAE50111 Diploma of Vocational Education and Training;

   5. in 2018, purporting to issue to Andrew Grafton a testamur stating that Mr Grafton had satisfied the requirements of TAE50211 Diploma of Training Design and Development;

   6. on 11 January 2019, purporting to issue to Peter Wilson a testamur stating that Mr Wilson had satisfied the requirements of TAE50111 Diploma of Vocational Education and Training; and

   7. on 6 February 2019, purporting to issue to Michael Dwyer a testamur stating that Mr Dwyer had satisfied the requirements of TAE50111 Diploma of Vocational Education and Training.

2. The Respondent contravened s 94 of the NVR Act on a total of 3 occasions by providing part of a VET course at a time when that VET course was not within the scope of Rose Training’s registration as an NVR registered training organisation, as follows:

   1. in or after December 2017, receiving and assessing coursework submitted by Patricia Saltmer for TAE50111 Diploma of Vocational Education and Training;

   2. on or after 14 December 2017, receiving and assessing coursework submitted by Peter Wilson for TAE50111 Diploma of Vocational Education and Training; and

   3. in or after March 2018, receiving and assessing coursework submitted by Michael Dwyer for TAE50111 Diploma of Vocational Education and Training.

THE COURT ORDERS BY CONSENT THAT:

3. The Respondent pay to the Commonwealth of Australia, a pecuniary penalty pursuant to s 137 of the NVR Act in the total sum of $23,000 within 30 days of the date of this order.

4. Pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) and r 40.02 of the Federal Court Rules 2011 (Cth), the Respondent pay the Applicant’s costs in the lump sum of $45,000 within 30 days of the date of this order.

THE COURT NOTES THAT:

5. The Respondent has provided an enforceable undertaking, within the meaning of s 146 of the NVR Act, to the Australian Skills and Quality Authority, which is to the effect outlined in the Statement of Agreed Facts and Joint Submissions filed by the parties on 17 February 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1. Before the Court is an amended originating application filed by the Commonwealth of Australia on behalf of the Australian Skills Quality Authority (Authority) on 23 February 2021. The application was made under ss 19 and 21 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and s 137(1) of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act), and seeks declarations of contraventions of the NVR Act, pecuniary penalty orders, and costs.

2. On 17 February 2021, the parties filed a statement of agreed facts and joint submissions. Annexed to the statement of agreed facts and joint submissions were proposed consent orders sought by the parties.

3. The matter was listed for hearing before me on 14 July 2021.

4. On 13 July 2021, my Chambers contacted the parties by email, seeking their views on vacating the hearing listed on 14 July 2021 and having the matter determined on the papers. By reply email that same day, the solicitors for the applicant advised that the parties consented to vacating the hearing, and the matter being determined on the papers. By agreement, the parties attached to the email updated proposed consent orders (proposed orders) for my consideration.

5. Relevantly, those proposed orders were as follows:

UPON HEARING JOINT SUBMISSIONS AND AN AGREED STATEMENT OF FACTS BY THE PARTIES THE COURT DECLARES BY CONSENT THAT:

1. The Respondent contravened s 96 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) on a total of 8 occasions by purporting on each occasion to issue a vocational educational training (VET) qualification in relation to a VET course that was not within the scope of Rose Training’s registration as an NVR registered training organisation, as follows:

1.1. on 25 October 2017, purporting to issue to Kimberley Proudlock:

(i) a testamur stating that Ms Proudlock had satisfied the requirements of TAE50111 Diploma of Vocational Education and Training;

(ii) a testamur stating that Ms Proudlock had satisfied the...