Industrial Relations Commission of New South Wales in Court Session CITATION: Ryan v NSW Department of Education and Training [2006] NSWIRComm 178 APPELLANT Terry Ryan PARTIES: RESPONDENT New South Wales Department of Education and Training FILE NUMBER(S): 968 of 2006 CORAM: Staff J CATCHWORDS: Appeal - Apprenticeship and traineeship - Application for leave to appeal and appeal - Extension of time - Application for trade recognition as a motor mechanic - Requirement to undertake trade test - Whether appellant properly and fairly tested - Extension of time granted - Appeal upheld - Orders made LEGISLATION CITED: Apprenticeship and Traineeship Act 2001 Cavacuiti v Toyota Motor Corp Australia (2002) 122 IR 247 Gabrielle Weisser v Spur Group Pty Ltd (unreported, Walton J Vice-President, 2 September 2002, matter No IRC 3744 of 2002) Skelly v Proud Jewellers Pty Ltd (1994) 53 IR 3 CASES CITED: Tadic v Beslic [2001] NSWIRComm 107 Topman v State Rail Authority of New South Wales [2004] NSWIRComm 272 Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 HEARING DATES: 03/05/2006 DATE OF JUDGMENT: 05/26/2006 APPELLANT Terry Ryan In person LEGAL REPRESENTATIVES: RESPONDENT Dr M McFadden of counsel Solicitor: Ms L Watson NSW Department of Education and Training JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 26 May 2006 Matter No IRC 968 of 2006 TERRY RYAN v NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING Application by Terry Ryan pursuant to s 55 of the Apprenticeship and Traineeship Act 2001 to extend time to appeal and for leave to appeal and appeal against a decision of the Vocational Education and Training Appeal Panel given on 14 February 2005 JUDGMENT [2006] NSWIRComm 178 1 Terry Ryan, the appellant, has lodged an application for leave to appeal and appeal against a decision of the Vocational Education and Training Appeal Panel ("the Appeal Panel") given on 14 February 2005. The appeal is brought pursuant to s 55 of the Apprenticeship and Traineeship Act 2001 ("the Act"). Section 55 provides: 55 Appeals to Industrial Relations Commission (1) An appeal from a decision of the Appeal Panel may be made to the Industrial Relations Commission in Court Session (the Commission), but only by leave of the Commission. (2) An application for leave to appeal under this section must be made within 6 months after the appellant is notified of the Appeal Panel's determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission: (a) may exercise any function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal, and (b) is not bound by the rules of evidence, but may inform itself in any manner it thinks fit. (4) The decision of the Commission is final and is to be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made. 2 An application to extend time to lodge the appeal was filed with the application to appeal on 27 February 2006. This application was granted. 3 Mr Ryan, who appeared in person, is illiterate and will turn 50 years of age at his next birthday. Background 4 In January 2004, Mr Ryan submitted an application to the Vocational Training Tribunal of New South Wales ("the Tribunal") for trade recognition as a motor mechanic. The Tribunal met on 7 April 2004 to consider the application for trade recognition. 5 The Tribunal deferred Mr Ryan's application requiring the appellant to undertake a trade test at an appropriate Technical and Further Education New South Wales College ("TAFE"). 6 TAFE performs trade tests in a wide range of trade areas for person who apply to have their previous qualifications and/or work experience recognised for the purpose of a trade certification. A person can make application to the Tribunal for recognition of their previous qualifications and experience. Where the Tribunal makes a decision that insufficient evidence has been presented by the applicant, the Tribunal can request the applicant to undertake a trade test conducted by a qualified teacher at TAFE. The results of the test are provided to the Tribunal to assist in making their final decision. 7 The usual procedure for a trade test is for an applicant to attend a preliminary interview approximately one month prior to the test. The preliminary interview takes approximately one hour. At the interview, the applicant is given a list of the topic areas and a walk around the workshop to familiarise himself/herself with the products and the machinery upon which they will be assessed. 8 On 16 May 2004, Mr Ryan appealed the decision of the Tribunal which refused his application for trade recognition. He also questioned the necessity for a trade test. 9 On 23 June 2004, the Appeal Panel convened to consider Mr Ryan's appeal. 10 The procedure adopted by the Appeal Panel was to interview Mr Ryan and consider any new evidence provided by him. At the conclusion of the proceedings on 23 June 2004, the Appeal Panel informed Mr Ryan that it could not decide his appeal that day. The matter was deferred to allow Mr Ryan to undertake a recommended trade test. 11 It was decided by the Appeal Panel that Mr Ryan should undertake a trade test in the trade of Automotive (Heavy Vehicle Mechanical). On 22 November 2004, Mr Ryan undertook this trade test at TAFE New South Wales - Hunter Institute, Kurri Kurri Campus. 12 On 24 January 2005, the Appeal Panel advised Mr Ryan that the results of his trade test had been received and would be considered at a future appeal hearing. 13 On 14 February 2005, another Appeal Panel convened to review the information obtained as a result of Mr Ryan's trade test. Mr Ryan participated in the second appeal hearing via telephone. 14 The Panel was satisfied upon advice it received from TAFE New South Wales that Mr Ryan had not met the requirements for trade recognition and determined to dismiss the appeal. Mr Ryan was notified of this decision on 21 February 2005. Relevantly, this letter advised: I wish to advise that under s 55 of the Apprenticeship and Traineeship Act 2001 , an appeal may be made to the New South Wales Industrial Relations Commission (IRC) against this decision. Should you wish to lodge an appeal, you should contact the IRC at 50 Phillip Street, Sydney, telephone number 02 9258 0800. 15 Although it was not explained during the proceedings, the New South Wales Department of Education and Training ("the Department") again wrote to Mr Ryan on 1 March 2006 advising him that his appeal had been dismissed. Relevantly, that letter advised: I wish to advise that under Section 55 of the Apprenticeship and Traineeship (A&T) Act 2001, you may seek leave to appeal the Panel's decision in the Industrial Relations Commission (the Commission). The Commission, at 50 Phillip Street, Sydney, can be contacted on telephone number (02) 9258 0866. You should advise the Commission that you wish to lodge an appeal under Section 55 of the A&T Act. Under the A&T Act, your application must be made within six months of being notified of the Panel's determination. This period may be extended at the discretion of the Commission. Details of the A&T Act can be found at www.apprenticeship.det.nsw.edu.au 16 In February 2006, Mr Ryan made contact by telephone with Appeal Panel support staff to discuss the appeal outcome, options for further appeals and concerns about the conduct of the trade test. 17 Section 55(2) of the Act provides that an appeal from a decision of the Appeal Panel may be made to the Industrial Relations Commission in Court Session, now known as the Industrial Court of New South Wales, by leave (s 55(1)) and must be made within six months after the appellant is notified of the Appeal Panel's determination or within such further period as the Commission allows (s 55(2)). 18 Any appeal was therefore required to be filed on or before 20 August 2005. Extension of Time 19 In his application for an extension of time to appeal, Mr Ryan's reasons were as follows: Vocational Training did not supply enough information (sic) the phone numbers suppled (sic) that I ring (sic) had not heard of these claims (sic). The affect (sic) this will have on me if I do not get my mechanic's licence (as) (sic) this is the only way I know how to make a living I have worked with car (sic) & trucks & motors all my life & don't know anything else. 20 Mr Ryan submitted in support of this application as follows: In the defence of not being able to contact, the number I was given, every time I rang they said they knew nothing about it. Until I contacted another person at Vocational Training a few months ago, I think her name is Debbie, (sic) actually went out of her way to get a contact name and phone number for me which is entirely different, I was able to go ahead with it. 21 Mr Ryan contended that he rang, on many occasions, the number contained in the letter from the Department advising him his appeal had been unsuccessful. His evidence was that it was not until he was given the name of a person in the Industrial Registry of the Commission that he was told how to lodge his appeal. 22 The evidence discloses that Mr Ryan spoke to Ms A Ricketts on or about 22 February 2006. Ms Ricketts directed Mr Ryan to an officer in the Industrial Registry. Mr Ryan subsequently filed an application to extend time to appeal and an application for leave to appeal and appeal pursuant to s 55 of the Act on 27 February 2006. 23 Mr Ryan contended that the injustice that would be visited upon him if he was not permitted to proceed with his appeal was that he would suffer a significant financial loss. Mr Ryan has a work factory with a lease which has another two years to run. He also has certain equipment on lease which he requires to do his job. Mr Ryan contended, without his livelihood, he would have no way of living. 24 Dr M McFadden of counsel, who appeared for the Department and the Appeal Panel ("the respondents"), opposed the application to extend time. Counsel submitted in response to Mr Ryan's contention that he would suffer an injustice, that this was largely based on financial issues but that Mr Ryan had not provided any evidence in relation to this issue. It was also submitted that Mr Ryan had not brought any evidence in respect of the number of times he attempted to contact the Department. 25 Counsel relied upon the principles stated in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 and the helpful discussion of the principles and authorities by Walton J, Vice-President in Cavacuiti v Toyota Motor Corp Australia (2002) 122 IR 247. 26 Walton J, in applying the principles set out in WorkCover Authority of New South Wales v Parkes Council noted some particular points of emphasis in his decision in Cavacuiti as follows at [42] - [43]: [42] In applying those principles to this matter I note some particular points of emphasis: 1. The exercise of the Commission's discretion to extend time to appeal is not constrained by the requirement of some court rules that special circumstances be demonstrated: Brady v Kennedy (t/as "Sardines") at 264. 2. There is a wide discretion to extend time where the justice of a particular case requires that outcome: Brady v Kennedy (t/as "Sardines") at 264; Tadic v Beslic at [22]. In exercising the discretion to extend time the Commission may consider a number of factors, such as the length of delay (see Jess v Scott at 195; Gallo v Dawson at 481 and Salter Rex & Co v Ghosh at 601; whether any prejudice would be suffered by the respondent by reason of the granting of the extension of time (see Skelly v Prouds Jewellers Pty Ltd at 6 and LEP International v Caine at 49 [57]; whether there is a reasonable explanation for the failure to file the appeal within time (see LEP International v Caine (at 48 [50]); whether the delay was due to an error or mistake by a legal advisor (see Brady v Kennedy (t/as "Sardines") at 269 and Skelly v Prouds Jewellers at 6 and the prospects of the appellant succeeding in the appeal (see WorkCover Authority (NSW) v Parkes Council at 299. However, the ultimate exercise of discretion is governed by the requirements of justice in a particular case. In Skelly v Prouds Jewellers it was held (at 6): "The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to the circumstances before it." [43] Accordingly, whilst I shall consider the principles agreed to by the parties and referred to earlier in the decision, in determining the application to extend time I shall ultimately be governed by the requirements of justice in this particular case. 27 I respectfully adopt the particular points of emphasis of his Honour and intend to apply these principles in considering the application for an extension of time, recognising that the ultimate determination by the Commission is to ensure that the interests of justice are served. Delay 28 The applicant's case for the extension of time substantially relied on the explanation for the delay, clearly a relevant factor to the exercise of the court's discretion: WorkCover Authority of New South Wales v Parkes Council at 304. This requires a consideration of the extent of the period of lateness in light of the reasons given for the delay: Gabrielle Weisser v Spur Group Pty Ltd (unreported, Walton J Vice-President, 2 September 2002, matter No IRC 3744 of 2002). In this case, the delay in filing the application for leave to appeal and appeal was six months after the period allowed by the statute in which to file an appeal. 29 The applicant is an uneducated man who sought the assistance of officers of the Department to file his appeal. Dr McFadden acknowledged that there was an issue about one of the telephone numbers in the first letter advising Mr Ryan of his rights in respect of an appeal. Although Dr McFadden did not elaborate, he submitted that in respect of one of the telephone numbers in the letter "it would have become blatantly obvious that had that number been tried, that there was a possible dead-end in relation to that number". The letter also included an internet address. Mr Ryan is unable to operate this technology. Although I readily accept it is not the Department's role to help respondents or appellants who may have cases against them any potential appellant is entitled, in my view, to assume that if he or she contacts an officer of the Department, that person will be assisted by the provision of information that will enable a person to exercise their potential rights. 30 It was not until 22 February 2006 that such assistance was provided to Mr Ryan by an officer from the Industrial Registry of this Commission. The matter was addressed with great alacrity as would normally be expected. Within five days of this assistance, an application for leave to appeal and appeal was lodged. 31 The purpose of the Department's letter of 1 March 2006, to which I have earlier referred was never made clear to me. This letter was, of course, written after the applicant had lodged his application for leave to appeal. 32 In my view, there is a satisfactory explanation for the delay. Prejudice 33 Whether the respondent will suffer prejudice by the granting of an extension of time is not determinative, and only one factor to consider in dealing with such an application. The cost of inconvenience of litigation brought outside a prescribed limitation period should also be considered: Skelly v Proud Jewellers Pty Ltd (1994) 53 IR 3 at 6. 34 The respondent did not submit that it would be prejudiced by the granting of an extension of time. The respondent focused on the cost and inconvenience of litigation that is brought six months past the limitation period. The respondent accepted that it was in a position to meet the appellant's case. Prospects of Success of Appeal 35 In the exercise of the Commission's discretion to determine whether to extend time, it is necessary to consider the applicant's prospects of succeeding in the appeal: WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council at 300. In Tadic v Beslic [2001] NSWIRComm 107, Wright J President, found that an application for an extension of time should be refused on the basis that the prospects of the appeal succeeding were extremely limited, and it was unlikely that leave to appeal would be granted. The respondent submitted that, in considering the prospects of success, this required a consideration of the question of whether leave to appeal would be granted. In this regard, the respondent submitted that the applicant's case was one which could be said to be so lacking in merit, that even if an extension of time to seek leave to appeal were granted, leave to appeal should then be refused. 36 In the present case (other than submissions), and the application for leave to appeal and appeal, the applicant has failed to place any material before the court to clarify the grounds of appeal, or assist a determination of the prospects of appeal. 37 The applicant gave the following reason why leave to appeal should be granted: The affect (sic) this will have on me if I do not get my mechanic's licence is this is the only thing I know how to do, (sic) I have worked with car and trucks and motors all my life and don't know anything else. I have got a lot of money invested in my workshop in tools and equipment in which some of the equipment is leased and also the factory bay is lease out for another two years, if I am to break the lease (sic) I will have to pay out more money which I can't afford. As you are probably aware of I am illiterate but I am not stupid and the Vocational Training people are treating (sic) as such and I feel like I am being victimize (sic) which is not at all fair. I am trying to make a living by earning an income (sic) I am not on welfare and I can't do this if I don't have my licence. In addition to this I have to pay maintenance for 2 children at a rate of $150 per week. 38 The grounds of appeal are: I was unfairly tested in the first place, and I need my Licence (sic) in order to survive. And live (sic) 39 The essential complaint that the applicant makes in respect of the Appeal Panel's decision is that he was unfairly tested. 40 In my view, the applicant has raised an issue which may attract leave to appeal. 41 As I have earlier observed, there is a reasonable explanation for the delay in lodging the appeal. There is no relevant prejudice identified by the respondent and there appears to be some prospects of success on appeal. 42 The guiding principle in relation to applications for an extension of time is that the court should do justice between the parties and ensure the proper administration of justice: Tadic v Beslic at [22] applying Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436. I consider that there is a tangible basis for concluding an injustice may arise to the applicant in this matter if an extension of time were not granted. The Court considers that, having regard to the guiding principle, an extension of time should be granted to bring the application for leave to appeal and appeal. 43 I therefore order, pursuant to s 55(2) of the Act, that the time for bringing the application for leave to appeal and appeal in this matter be extended so that the application meets the requirements of that section. Leave to Appeal and Appeal 44 In Topman v State Rail Authority of New South Wales [2004] NSWIRComm 272, I said at [19]: The matter proceeded before me as an appeal by way of re-hearing. A consideration of the following provisions point in favour of the appeal being an appeal by way of re-hearing. Firstly, the Court is empowered to exercise any "function" that could have been exercised by the Appeal Panel: s 55(3)(a). Secondly, the Court "is not bound by the rules of evidence but may inform itself in any matter it thinks fit": s 55(3)(b). Thirdly, an appeal to the "Appeal Panel is to be dealt with by way of a new hearing and fresh evidence or fresh information may be given on appeal": s 54(2). Fourthly, the proceedings before the Tribunal and the Appeal Panel were conducted in an informal manner with no affidavits being filed and no exhibits being formally tendered and no transcript being taken of the proceedings. 45 It was common ground that the question of leave to appeal and the appeal should be heard together. The matter proceeded before me as an appeal by way of rehearing. 46 I have earlier referred to the grounds of appeal. Essentially, Mr Ryan contends that he was unfairly tested by Mr Sinclair-Wadham, a teacher employed at the Hunter Institute of TAFE, Kurri Kurri Campus. Mr Ryan contended that Mr Sinclair-Wadham had not taken into account all the circumstances involved, including that the test was not fully completed, and he was marked on matters on which he was not tested. Mr Ryan's further contention was that the test was supposed to take three to four hours but that he was only tested for 25 minutes. The Appellant's Evidence 47 It is appropriate to set out the appellant's employment history. From 1971 to 1980, Mr Ryan worked as a Yard Hand in a motor wrecking yard. His duties included rebuilding motors, gearboxes and differentials, including work on diesel and petrol motors. From 1980 until 1992, Mr Ryan worked as a Workshop Trade Assistant and Bus/Coach Driver for Leslie's Bus Services at Blacktown. His workshop duties consisted of grease and oil changes, re-lining/bleeding brakes, rebuilding engines, differentials and gearboxes with 90 percent of his work carried out without supervision. From 1992 to 2002, Mr Ryan worked for various employers as a Bus, Coach, Truck Driver and Mechanic. From 2002 to the present, Mr Ryan has owned his own mechanics workshop and has had licensed mechanics working for him. Mr Ryan's evidence was that the only reason that he had not applied for a mechanic's licence earlier was because he is illiterate. 48 The original application made by Mr Ryan was for recognition of his trade qualifications and experience in the trade of Automotive (Light Vehicle Mechanical) under Pt 3 of the Act. 49 Mr Ryan sought to rely on material contained in his application for leave to appeal. Mr Ryan contended that he had not been tested on some of the parts of the trade test. In respect of other parts of the test, Mr Ryan contended that he had answered correctly. 50 The trade test is comprised of 10 components including measurement and measuring instruments; engine operation, diagnosis and repair principles; fuel, electrical, transmission and drive and breaking systems; heavy vehicle suspension, steering and air conditioning systems. The scoring criteria ranges from zero to four. A score of zero reflects inadequate knowledge and skill levels and a score of four reflects a high level of knowledge and skill. Mr Ryan's scores were either zero or one for each component, which reflected minimum knowledge and skill levels. Mr Ryan's case was that it was not open to Mr Sinclair-Wadham to reach the conclusion that Mr Ryan did not possess sufficient knowledge and skills to be of trade person standard. 51 Mr Ryan called Christoper Colin Sheehy. Mr Sheehy's evidence was that he drove Mr Ryan to the Hunter Institute of TAFE at Kurri Kurri to undertake the trade test on 22 November 2004. He then drove back to Kurri Kurri to buy a newspaper and to get a drink. He then returned to the TAFE grounds where he parked his car and by the time Mr Ryan returned to the car, he had read half the Daily Telegraph. Mr Sheehy's evidence was that he estimated the time taken to drive to Kurri Kurri and back to the TAFE, including the reading of the paper, was approximately 20 to 22 minutes. Mr Sheehy's evidence was that he said to Mr Ryan when he returned to the car: "Gee, that was quick". Mr Ryan responded by observing that he did not believe that he had been tested on all of the matters. 52 During cross-examination, Mr Sheehy acknowledged that he had known Mr Ryan for approximately three years and that he took his motor vehicle to Mr Ryan for service. Mr Sheehy also provided a reference for Mr Ryan. Mr Sheehy's evidence was that from the time he dropped Mr Ryan off at TAFE, to when he picked him up would have been approximately half an hour. He conceded that he could not recall time exactly. 53 As part of his case, Mr Ryan tendered four references from customers including Butterfield and King, a coach company. Each of the references referred to Mr Ryan's ability as a motor mechanic and satisfaction with his work. Three of the references deal with servicing of motor vehicles. The fourth reference deals with the regular servicing and preventative maintenance on coaches but does not suggest that Mr Ryan was involving in the overhaul of such vehicles. 54 Mr Ryan was required for cross-examination. Mr Ryan's evidence was that he believed he had been marked on matters on which he had not been tested. Mr Ryan agreed that the trade test was both oral and practicable. Mr Ryan agreed that the difficulties that he had with reading and writing was not a ground of appeal or relevant area of unfairness. Mr Ryan agreed that, prior to the trade test, he had on an earlier occasion, met Mr Sinclair-Wadham at the TAFE and had been provided with a list of topics on which he would be examined. Mr Ryan's evidence was that the trade test took half an hour at the most and that he was not tested on all of the items set out in the trade test. Despite being pressed on this issue, Mr Ryan maintained that the trade test was completed in approximately half an hour. Mr Ryan did not agree with Mr Sinclair-Wadham's results and rejected the proposition that it was fairly scored. 55 Mr Ryan's evidence was he had rebuilt a Detroit two stroke diesel engine. He accepted that this was a 1960 engine, but stated that all engines work on the same basis. However, he agreed that such an engine did not represent the kind of complexity that a mechanic working on a modern day heavy vehicle would deal with, although he stated he also worked on current engines. Mr Ryan stated that 70 percent of his time would be devoted to working on heavy vehicles, being defined as six and a half tonne or larger vehicles. However, only about three percent of Mr Ryan's work on these vehicles involved overhauls with 70 percent relating to the repairing of vehicles with approximately 25 percent being spent on ensuring that the vehicles are roadworthy and acceptable for registration. The Respondent's Evidence 56 Dr McFadden tendered an affidavit of Mr John Skeen, Manager, Business Services, with the Department. Mr Skeen also holds the position of Chair of the Appeals Panel. 57 Mr Skeen outlined the organisational structure in the Department and stated that he had presided over more than 200 appeals. Mr Skeen outlined the matters the Tribunal was required to have regard to in making a determination and the basis upon which an appeal could be brought. 58 Mr Skeen then set out the circumstances surrounding Mr Ryan's application for trade recognition. Mr Ryan's evidence, from the Department's viewpoint and his as the Chair of the Tribunal, was that there was a serious responsibility falling on the Tribunal to decide whether or not to issue a trade certificate. Mr Skeen's evidence was that the Tribunal needed to be assured that the applicant would actually pursue his trade and had all the relevant skills and competencies to pursue the trade. The reasons for this included ensuring safety within the Industry and the general community was maintained and that there are national competency levels that needed to be met across Australia to maintain the credibility of the system and the skills of tradespersons. 59 Mr Skeen stated that in his view, in assessing Mr Ryan's previous experience, there was information that Mr Ryan worked in the Industry and serviced vehicles but this did not appear to include overhauling and rebuilding of vehicles and some aspects in the competencies did not appear to have been covered so as to enable the issuing of a craft certificate. It was for this reason that the Tribunal deferred making a decision in June 2004. Mr Skeen stated that the results of the trade test indicated major deficiencies in Mr Ryan having the full range of skills to pursue the trade. The same decision would have been made if Mr Skeen had been provided with the references that were now before the Court. 60 Mr Skeen stated that the options for Mr Ryan were to undertake appropriate studies at TAFE. This would include enrolling in an appropriate trade course and seeking competencies. Alternatively, Mr Ryan would be able to undertake a trade test at the Institute of Automotive Mechanical Engineers, an independent body, or work under supervision with another mechanic for a period of time, logging all work and then reapplying for recognition with that additional evidence. 61 During cross-examination, Mr Ryan suggested to Mr Skeen that he had never attended any hearing before the Tribunal or the Appeal Panel but had participated by telephone. Mr Skeen conceded that it was possible that his recollection was wrong, although the file recorded that Mr Ryan was in attendance. 62 Mr Sinclair-Wadham, a TAFE teacher, is a member of the Institute of Automotive Mechanical Engineers and also a member of the Educators Division of the same organisation. His evidence was that a student may complete two qualifications from the Automotive Industry, Retail Servicing and Repair Training Package to achieve trade certification for the repair and servicing of road vehicles: certificate III in Automotive (Mechanical-Heavy Vehicle Road Transport) and certificate III in Automotive (Mechanical-Light Vehicle). Such qualifications are usually completed through an apprenticeship which takes approximately four years to complete. The apprentice would be required to attend TAFE for 36 days per year, either one day per week or seven separate weeks of five days duration. The apprentice would also be required to work at a licensed workshop with licensed qualified tradesmen for the remainder of the four years of the apprenticeship to obtain the necessary practical experience. Mr Sinclair-Wadham stated that a student is required to complete 36 competencies from the Training Package at levels 2, 3 and 4 for a Heavy Vehicle Road Transport Certificate. 63 On 12 November 2004, Mr Sinclair-Wadham's conducted a trade test with Mr Ryan. He stated he had conducted this trade test on two previous occasions in the past four years. Previously, such tests were conducted at TAFE Wetherill Park. 64 Mr Sinclair-Wadham's evidence was that it was decided after discussions with Mr Ryan and in conjunction with the Vocational Training Tribunal Unit, that the trade test should assess Mr Ryan in the trade of Automotive (Heavy Vehicle Mechanical) as this appeared to be the area most suited to the work in which he was engaged. 65 Mr Sinclair-Wadham deposed that, depending upon the applicant's level of skill, the trade test takes approximately three hours to test their qualifications. The test is made up of oral and practical components. Mr Sinclair-Wadham stated the time taken for Mr Ryan's assessment was definitely longer than the 25 minutes claimed by Mr Ryan and closer to the usual three hours. 66 Mr Ryan was not provided with literacy support as he indicated at his preliminary interview, prior to the assessment, that he felt confident to proceed without any literacy help. 67 Mr Sinclair-Wadham stated that the test demonstrated that Mr Ryan lacked the underpinning knowledge required to understand how components and systems operate. He could not find sufficient knowledge and skills, to a tradesman's standard, that would allow him to recommend an exemption from competencies in the Heavy Vehicle Trade Course. 68 Mr Sinclair-Wadham stated that in teaching trade apprentices in Heavy Vehicle Road Transport, the course is a three year course which is generally divided up into service, repair and overhaul. Predominantly, first year is accumulating underpinning knowledge required for a student to move on to repair in year two and overhaul in year three. The first year is mostly service-related items and competencies. These include carrying out maintenance and/or servicing operation, auto mechanics, hydraulic and pneumatic operations, service engines and associated engine components, auto electrical principles, auto electrical systems, electrical system minor repairs, automotive batteries, welding, soldering, thermal cutting and thermal heating procedures. 69 Under the heading "Conclusion" of the trade test, Mr Sinclair-Wadham stated "Terry demonstrated minimal knowledge and skills in some areas, whilst I am sure he is a very good serviceman, he lacks the underpinning knowledge required to understand how components and systems operate. This knowledge is essential when performing the diagnosis, repair and overhaul of heavy vehicles. I could not find sufficient knowledge and skills to a tradesman's standard that would allow me to recommend an exemption from competencies in the Heavy Vehicle Trade Course." 70 In an email to Ms A Ricketts on 15 February 2005, Mr Sinclair-Wadham stated "Find attached further info (sic) regarding Terry. As discussed with this cert (sic) 11 he can go to MVRIA and obtain an ongoing licence which allows him to service heavy vehicles and exchange components, but it does not give him authority to repair or overhaul these components. This may be all he is looking for." 71 In an undated letter to Mr Ryan, after he undertook the trade test on 22 November 2004, Mr Sinclair-Wadham stated "Further to my letter of 22 November 2004 Terry was assessed for competencies related to full Trade qualifications, as indicated in my previous correspondence he displayed ability in competencies related to servicing and could be given recognition to a level of Certificate II Servicing Heavy Vehicle. If in the future he wishes to upgrade his qualifications to full trade level he would be required to complete two more years of study." 72 Mr Sinclair-Wadham's evidence is that Certificate II level generally relates to those service items predominantly taught in the first year of the course. Certificate II relates to service items only, not repair or overhaul, so a person would be competent at this level to do services only. The following exchange took place between the Bench and Mr Sinclair-Wadham: Q. Your view was that Mr Ryan had trade competencies in relation to servicing that would enable him to be given recognition to a level of Certificate II? A. That's correct. … Q. If he wished to upgrade his qualifications to a full trade, then he would be required to complete two more years of study? A. Yes, two more years; those competencies which relate particularly to repair and overhaul. 73 Mr Sinclair-Wadham could not recall how long the trade test took. However, he stated having done six of these now, he was sure that it took between two and three hours. 74 Dr McFadden tendered the Heavy Vehicle Road Transport Trade Test document that Mr Sinclair-Wadham used in his assessment of Mr Ryan. This document contained circles with ticks or crosses according to Mr Ryan's response and skill demonstrated to questions and tasks. Mr Sinclair-Wadham's evidence was that in order to be awarded a craft certificate, Mr Ryan would need to increase his competencies in the repair and overhaul areas of the course. 75 During cross-examination, Mr Ryan suggested to Mr Sinclair-Wadham that he had not been examined on various matters during the trade test. This was denied by Mr Sinclair-Wadham, as were the various propositions put to Mr Sinclair-Wadham that he had not asked questions on all of the topics. It was also suggested that on one occasion he said the words "very good" in response to an answer from Mr Ryan. This was also denied by Mr Sinclair-Wadham who stated it would not be something that he would normally say as teachers are advised not to give any indication of how the person being tested is doing. 76 It emerged during cross-examination that Mr Ryan recalled at least two matters that he initially believed he had not been asked by Mr Sinclair-Wadham. Similarly, Mr Sinclair-Wadham seemed to accept that he asked Mr Ryan at least two questions in respect of the foot release valve after initially doubting this proposition. Consideration 77 The issue for determination in this appeal is whether Mr Ryan was properly and fairly tested by Mr Sinclair-Wadham when he undertook the Heavy Vehicle Trade Test. Mr Ryan contended that he was unfairly tested because the test was not fully completed, that he was marked on matters that he was not questioned or tested and that the test took approximately half an hour, rather than close to the two to three hours that Mr Sinclair-Wadham said that the test took. 78 Both Mr Ryan and Mr Sinclair-Wadham have differing recollections of the questions asked during the trade test and its duration. In my view, both persons gave truthful accounts of what they believed to have occurred during the test. Although the evidence is inconclusive, on the balance of probabilities, I find Mr Ryan was not examined on the full range of matters during the examination. This is implicit when regard is had to the evidence surrounding the time taken for the test and relates back to the failure of the Appeal Panel in not defining what it sought. 79 This was the third trade test that Mr Sinclair-Wadham had conducted. The evidence of Mr Sheehy corroborates Mr Ryan's recollection that the test was completed in approximately half an hour. On balance, and I find it is more likely than not, that the test was conducted over a period of approximately half an hour. In such circumstances, it follows that Mr Ryan was not fairly or properly tested. As there remains some doubt, in my mind, in respect of the conduct of the trade test and the marking of Mr Ryan's performance on the trade test, this, in my view, requires the Court to intervene in this matter. 80 The Tribunal, and subsequently, the Appeal Panel, both had difficulty in reaching a decision in respect of Mr Ryan's application. Mr Skeen gave evidence that at one point, the Appeal Panel was unable to reach a decision. However, subsequently given the evidence of the trade test, a decision was reached not to award a craft certificate to Mr Ryan. 81 This aspect of the Appeal Panel's approach is of some concern to me. Section 54(2) of the Act provides that an appeal is to be dealt with by way of a new hearing, and fresh evidence or fresh information may be given on the appeal. I do not read this subsection as permitting the Appeal Panel to require an appellant to undertake a trade test in circumstances where the Appeal Panel is substituting or delegating their decision to another person, in this case, Mr Sinclair-Wadham. The effect of this approach was that the trade test determined the appeal. In my view, this caused the appeal to miscarry. 82 The Tribunal, pursuant to s 37(3), in making a determination must have regard to certain matters including the length of time the applicant has been working in the recognised vocation (s 37(3)(a)), the nature and duration of any instruction or training received by the applicant in the recognised trade vocation (s 37(3)(b)); and the nature of any qualification held by the applicant in relation to a recognised trade (s 37(3)(c)). In addition, the Tribunal may have regard to such other matters (including the appellant's performance in any examination or test set by the Tribunal) as it considers relevant (s 37(3)(d)). 83 It does not seem to me that even assuming the Appeal Panel has the same powers as the Tribunal, it could be said it "set" any examination or test for Mr Ryan. 84 The Appeal Panel directed Mr Ryan to undertake a trade test without, it seems to me, setting any criteria at all. It did not request that the assessor look for any particular skill or deficiency or pose any questions at all for the assessor. The decision to require Mr Ryan to undertake the trade test was also done without obtaining Mr Ryan's views on the matter. 85 In my view, there is a need for proper criteria to be laid down if such a process is to be embarked upon in the future. 86 I should also record that I have significant reservations about Mr Skeen being called to give evidence in this appeal. The Appeal Panel of which Mr Skeen is the Chair is a statutory tribunal. It is most unusual that a tribunal would be the subject of cross-examination about its decision-making process. Although this approach did not affect the determination of this matter (the appellant being unrepresented) the Appeal Tribunal is clearly distinguishable from an internal public sector administrative body. I would discourage this approach in the future. 87 Two years has now elapsed since Mr Ryan's application was initially considered by the Tribunal. During this period, Mr Ryan has continued to operate his business. His contention is that he has sufficient experience which should allow the Appeal Panel to certify him holding trade qualifications. The Appeal Panel should not confuse the requirement for a trade test with exercising their own discretion, particularly bearing in mind what Mr Ryan was seeking, and what the Appeal Panel determined as appropriate to have tested. The Appeal Panel should consider, if it decides it requires further information, defining such information, for example, the particular areas for testing. 88 Any further testing should take place at a TAFE other than Kurri Kurri. As an alternative, an assessor from the Institute of Mechanical Engineers could be requested to assess Mr Ryan. Mr Ryan should be provided with literacy support during such a test. 89 Furthermore, in light of the evidence of Mr Sinclair-Wadham, Mr Ryan should be awarded a Certificate II Servicing Heavy Vehicles. This would enable Mr Ryan to obtain an ongoing licence which allows him to service heavy vehicles and exchange components, but does not give him authority to repair or overhaul those components. Mr Ryan should be assisted in respect of whatever application is required to be made in order for this certificate to be issued. 90 In reaching this decision, I am mindful that the Department has a duty to ensure that standards which are set are maintained so that public safety and the safety of consumers are protected. 91 In respect of the question of leave, the only submission that was put by Dr McFadden on this question was that the matter may be so frivolous or lacking in merit that leave would be refused under s 55. In my view, for the reason given, this is not such a matter. I therefore propose to grant leave to appeal and uphold the appeal. ORDERS 92 I make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. I direct the Vocational Education and Training Appeal Panel to reconsider Mr Ryan's appeal and whether a trade test is appropriate in the circumstances of this matter. 4. Subject to making an appropriate application, Mr Ryan is to be issued with a Certificate II Servicing Heavy Vehicles. 5. No order as to costs. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.