ProGalor Hub Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 304

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ProGalor Hub Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 304 Hearing dates: On the papers Date of orders: 10 December 2020 Decision date: 10 December 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) Under s50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of the jurisdictional issue in this matter. (2) The administrative review application is dismissed for want of jurisdiction. Catchwords: ADMINISTRATIVE LAW - administrative review – administrative review jurisdiction – decision of the Department of Education to cancel funding subsidy under the Smart and Skilled Program with a Registered Training Organisation – no enabling legislation granting administrative review jurisdiction. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Education Act 1990 Cases Cited: Dubow v Mid-Western Regional Council [2019] NSWCATAP 242 Texts Cited: None Category: Procedural and other rulings Parties: ProGalor Hub Pty Ltd (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: Jitendra Verma (Agent) (Applicant) Legal Services, Department of Education (Respondent) File Number(s): 2020/00222289 Publication restriction: None

REASONS FOR DECISION

Introduction. 1. ProGalor Hub Pty Ltd ('ProGalor Hub') is a Registered Training Organisation ('RTO') which provides, among other things, vocational education and training. 2. On 6 May 2019, ProGalor Hub and the Department of Education ('the Department') entered a contract in writing under the Smart and Skilled Program for delivery by ProGalor Hub of government subsidised courses ('the contract'). The terms and conditions were in writing. 3. On 14 May 2020, the Commonwealth Administrative Appeals Tribunal ('the AAT) set aside a decision made by the Australian Skills Quality Authority ('the Authority)' to cancel ProGalor Hub's registration as an RTO. Instead, the AAT removed five qualifications and three units of competency from the scope of ProGalor Hub's registration. It suspended another five qualifications for 12 months, and imposed further conditions in relation to other qualifications, including capping the number of students in some of them. 4. On 26 June 2020, the Department advised ProGalor Hub of its decision to terminate the contract with immediate effect on the basis that the decision of the AAT was an adverse regulatory decision, which affected ProGalor Hub's ability to perform its obligations under the contract. As such it was 'event default' which, under cl 21.2 of the contract, entitled the Department to, among other things, terminate the contract. 5. On 27 July 2020 ProGalor Hub Pty Ltd lodged an application with this Tribunal for an administrative review of the decision by the Department of Education to terminate the contract. 6. At a case conference on 25 August 2020 the Department submitted that the Tribunal did not have an administrative review jurisdiction to review the decision to terminate the contract. The Tribunal made orders for the filing of submissions on the jurisdictional issue by both parties and ordered that the issue of jurisdiction would be determined on the papers. 7. The Department filed its submissions in time. ProGalor Hub has not filed any submissions, despite the time in which it was to do so being extended, at its request, from 22 September 2020 to 16 October 2020. ProGalor Hub has not offered any explanation for not lodging submissions on jurisdiction. 8. The issue of the Tribunal's jurisdiction to hear and the determine ProGalor Hub's application for administrative review has been referred to me for decision.