3 Bears Childcare Centre Pty Ltd v Secretary, Department of Education; Apple Bear Pty Ltd v Secretary, Department of Education; Hi5 Childcare Pty Ltd v Secretary, Department of Education

Background Facts

1. On 24 October 2023 the respondent issued the appellants (Hi5 Childcare Pty Ltd, Apple Bear Pty Ltd and 3 Bears Childcare Centre Pty Ltd ) a show cause notice with reasons for the proposed cancellation of the provider approval to operate the childcare centres. On 4 June 2024 the respondent cancelled each of the appellants' approval to operate the childcare centres with effect from 4 July 2024 ("the cancellation decisions").
2. On 14, 17 and 18 of June 2024 the appellants lodged an application for administrative review and an application for a stay of the three cancellation decisions. The applications attached material in support and on 20 June 2024, Mr Trang who is the Director of the appellants also filed and served written submissions.
3. The matter commenced to be heard on 20 June 2024 but was adjourned to give the parties time to file further evidence and submissions. Mr Trang filed further documents and submissions following 20 June 2024.
4. On 2 July 2024, Mr Trang contacted the Registry to seek that the stay application listed for that day be vacated as he had not received a hard copy of the documents from the respondent. He also sought that a stay be granted until 4 July 2024.
5. On 2 July 2024 the Tribunal continued to hear the application for a stay. At the conclusion of the hearing the Tribunal made an order refusing to stay the respondent's decision until the matter was determined by the Tribunal.
6. On 3 July 2024, the appellants filed an application for an appeal and a stay of the order made by the Tribunal on 2 July 2024. The matter was before the Tribunal on 4 July 2024 for directions but the appellants, with the consent of the respondent sought a hearing of the applications for a stay in each appeal. On the same day, the Tribunal made an order dismissing the applications for a stay.
7. The matter came before the Appeal Panel on 13 September 2024. The appellants sought an adjournment. The Appeal Panel granted an adjournment until 25 October 2024 on the basis that the respondent had not served its documents on the appellants in paper form prior to the appeal hearing and because the appellants sought to engage a legal representative.
8. In this appeal, the appellants sought to have the order made by the Tribunal on 2 July 2024 set aside. At the hearing the Appeal Panel gave leave to the appellant to be represented by Ms Tran.

The Notices of Appeal

1. The Notices of Appeal sets out five grounds which we reproduce verbatim below: 1. the short notice to cancel three approved providers will devastate all stakeholders especially children 2. without final hearing it could cause more damage is and harms to children 3. all respondents evidence are history of non- compliance related rather than should be based on current condition 4. there are no evidence of current concerns to risks health and well being 5. evidence in one proceeding is to be treated as evidence in the other does not reflect the true pictures for others.
2. At the hearing, the appellants submitted that leave to appeal should be granted because the Tribunal failed to consider its material and submissions as to how the closure of the childcare centres would impact on its clients and staff, that they did not have an adequate opportunity to present their material at the hearing and that the decision was against the evidence before the Tribunal.
3. There was no appeal against the order made by the Tribunal to join the three applications so that they be heard together and that evidence in one matter could be used as evidence in the other.
4. The appellants sought to rely on eight volumes of material which included an amalgam of new material and material previously before the Tribunal.

Tribunal findings

1. On 2 July 2024, the Tribunal made an order that the respondent's decision was stayed until 6pm on 5 July 2024. The stay was made pursuant to s43(3) of the NCAT Act.
2. During the hearing, the Senior Member inquired on numerous occasions with Mr Trang whether he sought an adjournment. On each occasion Mr Trang stated that he wished to go ahead with the hearing [8].
3. The Tribunal made findings that: 1. The respondent should be taken to be entitled to the benefit of the decision unless the applicant can demonstrate that it is appropriate to grant a stay [42]: 2. That a stay was not reasonably necessary to secure the effectiveness of the appeal, by which we take to mean the final hearing of the matter [44]; 3. That the applicants had failed to lead evidence refuting the allegations made by the respondent and some of the most serious allegations, denied by Mr Trang were contrary to the documentation relied on by the respondent [45]; and 4. That a significant number of families and many children would be adversely impacted by the closure but the unacceptable level of risk to the health and wellbeing and safety of the children could be best protected by refusing a stay [48]-[50].

Consideration

1. As set out in the paragraph above, the Tribunal did consider the impact of closing the childcare centres on the families and children and the nature of the allegations and concerns about health and well-being.
2. The appellants were on notice from October 2023 that there were serious concerns about their compliance with the Children (Education and Care Services) National Law (NSW) when they were issued with a show cause notice.
3. The appellants had filed a significant amount of material before the Tribunal. On appeal the appellants submitted that they did not have an adequate opportunity to respond to the allegations because they did not understand who the person was who made the complaints against them but that having received the respondent's material in paper form they were able to identify the person as a senior employee of the appellants. The appellants pointed to some statements made by this person that were wrong, such as children attending the centre on a Saturday.
4. The appellants made numerous submissions that the allegations made by the respondent were incorrect and that they could prove that was the case.
5. The grounds identified by the appellants do not raise any error in the manner in which the Tribunal exercised its discretion. The Tribunal did consider issues identified by the appellants and the respondent and clearly set out the reasons for the decision. The issues raised by the appellants on appeal go to the merits of their claim which will be considered at the substantive hearing, scheduled to take place in December 2024.
6. The appellants filed no written submissions on appeal but sought to rely on eight volumes of new documents. The appellants submitted that many of the documents were before the Tribunal but that pages had been added to refute the respondent's evidence. The appellants also sought to rely on affidavits from six persons including staff, parents of children enrolled and Ms Ribarovski who is a consultant retained by the appellants.
7. The appellants did not suggest that that the new evidence was not reasonably available at the date of the hearing but rely on it as fresh evidence if it becomes appropriate to redetermine the stay application; s80(3)(b). As the Appeal Panel is not satisfied that the "grounds of appeal" warrant a new hearing, there is no cause to consider it.
8. The appellants failed to grasp that the Tribunal's role in determining whether leave to appeal should be granted is based on a consideration of relevant principles referred to in paragraph [4] above and not on a consideration of the merits of their claim.

Orders

1. For the reasons set out above, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure or publication of the name of any child referred to in the evidence is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 01 November 2024