Gabriel's Family Day Care Pty Ltd v Secretary Department of Education

Introduction

1. On 19 December 2019 the delegate of the Secretary, Department of Education determined to cancel the applicant's provider approval pursuant to section 33 of the Children (Education and Care Services) National Law 2010 (NSW) (referred to as "the National Law"). The decision to cancel the provider approval took effect from 8 January 2020.
2. The applicant ultimately seeks to overturn or review the decision to cancel the provider approval and now seeks a stay of that cancellation decision pending determination of the application.
3. The Tribunal urgently heard the stay application in the Community Services list on 30 January 2020. Due to time limitations because of other matters in the Community Services list the Tribunal made orders preparing the matter for hearing on 27 May 2020 for 3 days and granted the stay for that relatively short period of time until the matter can be fully heard. Reasons for the decision to grant the stay were reserved and these are those reasons. The stay was granted on the terms and conditions recorded in these reasons. This procedure was considered to give effect to the guiding principle to be applied to practice and procedure in the Tribunal "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
4. The decision to cancel the provider approval is a reviewable decision for external review under section 192 (b) (ii) of the National Law.
5. A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision: section 193 of the National Law. The Tribunal (NCAT) is the relevant venue by reason of section 5 of the National Law and section 8 (b) of the Children (Education and Care Services National Law Application) Act 2010 (NSW) ("the National Law Act Application Act").
6. The Tribunal exercises jurisdiction under section 29 of the Civil and Administrative Tribunal Act 2013 (NSW): see DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [20]-[22]; Transcon Holding Pty Ltd t/as Sydney Multicultural Child Care Services v Secretary, Department of Education [2017] NSWCATAD 333 at [9], [24] and [68]-[69]; Joy Child Care Ltd v Secretary, Department of Education [2017] NSWCATAD 340 at [9]; Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 at [28]-[29].
7. In Secretary, Department of Education v Joys Child Care Ltd [2017] NSWSC 749, Justice Parker acknowledged that there were two views about the statutory basis for the Tribunal's review power. The court in that matter did not need to reach any conclusion as to whether the Tribunal was exercising its jurisdiction under section 43 of the Civil and Administrative Tribunal Act or section 60 of the Administrative Decisions Review Act 1997 (NSW). Section 43 of the Civil and Administrative Tribunal Act is the equivalent stay provision to section 60 of the Administrative Decisions Review Act.
8. This is an application for stay of the cancellation decision relying upon section 43 of the Civil and Administrative Tribunal Act 2013 (NSW) (referred to as the "CAT Act"): see Transcon Holding Pty Ltd t/as Sydney Multicultural Child Care Services v Secretary, Department of Education [2017] NSWCATAD 333 at [24]. This is sought to allow the applicant to continue to provide child care services.
9. The provisions of section 43 of the CAT Act are as follows: 43 EFFECT OF PENDING GENERAL APPLICATIONS AND APPEALS (1) This section applies to the making or lodgment of any of the following (a "pending general application or appeal" ): (a) a general application for the review or other re-examination of a decision made by an external decision-maker, (b) an external appeal, (c) an internal appeal. Note : See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
10. In other words, the application for review does not act as a stay of the decision under review. The respondent opposed the application for a stay.
11. The Tribunal may therefore grant a stay with or without conditions, or otherwise make orders affecting the operation of a decision to which a pending general application relates as it considers appropriate to secure the effectiveness of the determination of the application.
12. In Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13, at [11], J Millbank, Senior Member summarised the principles applicable to the stay provision in the CAT Act as follows: "There is a wealth of general guidance on principles to be considered in exercising a stay power: Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84. In the context of this Tribunal, Wright J on behalf of the Appeal Panel summarised such principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 as including: (1) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. (2) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. (3) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. (4) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies." (5) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (6) The overriding principle in an application for a stay is to ask what the interests of justice require."
13. These general principles are to be applied having regard to the specific statutory context of the application.

Legislative background

1. The objectives and guiding principles of the National Law are in section 3: 3 Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (2) The objectives of the national education and care services quality framework are- (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows- (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
2. Section 4 provides how the functions under the National Law are to be exercised as follows: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.
3. Person is defined in section 5 the National Law as: "person" means- (a) an individual; or (b) a body corporate; or (c) an eligible association; or (d) a partnership; or (e) a prescribed entity;
4. The National Law provides that the Regulatory Authority is defined in section 5 to be: "Regulatory Authority" means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction...
5. Pursuant to section 24 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) references to Regulatory Authority in the National Law is a reference to the Regulatory Authority for this jurisdiction. Under section 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), the Regulatory Authority for this jurisdiction (NSW) is the Secretary of the Department of Education.
6. In Joys Child Care Limited v Secretary, Department of Education [2017] NSWCATAD 340 at [19]-[22], Dr J Lucy Senior Member identified that the practice of anonymisation by use of a pseudonym of the applicant in a matter such as this is not routinely undertaken because section 65 of the CAT Act does not apply to these applications for review. There does not appear to be any reason in this matter for an order under section 64 of the CAT Act and it is not desirable having regard to the nature of the evidence in this matter to make such an order. Other applications under the National Law are now not routinely given a pseudonym nor have they routinely been granted a non-publication order. It is an exceptional step to take in this matter and at this point in time not indicated as desirable.
7. The National Law implements a uniform national scheme for the regulation of education and care services, including family day care services. A family day care service is defined in section 5 of the National Law as an "education and care service That… is delivered through the use of 2 or more educators… and operates from 2 or more residences."
8. In order to operate an education and care service a person must be granted provider approval and service approval under the National Law. The conditions of a provider approval are set out in section 19 of the National Law.
9. The National Law imposes a large number of regulatory requirements and requires strict compliance by those who are required to apply those conditions: 3 Angels Family Day Care Pty Ltd v Secretary Department of Education [2017] NSWCATAD 265 at [22]; DPW v Secretary Department of Education [2018] NSWCATAD 257 at [29]; Faaea v Secretary Department of Education [2018] NSWCATAD 85 at [25]; Jump Start Family Day Care Pty Ltd v Department of Education and Training (Review and Regulation) [2019] VCAT 1631 at [37]. This responsibility for compliance extends responsibility to comply with the regulatory requirements to providers to oversight the educators they use to operate family day care services.
10. The Regulatory Authority may cancel provider approval in accordance with the grounds specified in section 31 of the National Law. To provide procedural fairness, if the Regulatory Authority is considering cancelling such an approval a show cause notice must be issued and any written response provided by the provider is required to be taken into account. Specifically, section 31 (e) of the National Law allows the cancellation of the provider approval if there has been a breach of a condition of the provider approval. It is a condition of the grant of provider approval that the approval is subject to the condition that the approved provider must comply with the National Law.

The documents relied upon in the interim hearing

1. The documents relied upon for the interim application before the Tribunal are: 1. Application for stay or interim order and Administrative Review application both filed 16 January 2020. Attached to this application are a copy of the Notice of Decision to Cancel Provider Approval, the Show Cause Notice issued for June 2019 together with Attachment A. 2. Affidavit of Meskerem Tesifaye sworn 30 January 2020. 3. Statement by Solange Loki Samba made 29 January 2020. 4. Submissions on behalf of the respondent filed 30 January 2020. Attached to the submissions are a copy of the provider approval dated 13 October 2014 which record the date of approval as 12 February 2014, Service Approval issued 30 September 2014, Notice Of Breaches contained in a letter dated 20 July 2017, an email dated 6 January 2020 to the applicant's solicitor advising that the Notice of Decision to Cancel Provider Approval which was sent on 20 December 2019 by registered post and was delivered by surface mail on 24 December 2019 and had been sent by email on 19 December 2019.

Other Legislative Provisions relevant to the interim decision

1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32.
3. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: see e.g. Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
4. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division on an application for review of this current decision is entitled to be represented by a lawyer without seeking leave of the Tribunal: see sections 16, 17 and Schedule 3, clause 9(1), of the Civil and Administrative Tribunal Act. Also, costs may be awarded; see schedule 3, clause 13.

The Issue

1. The applicant seeks to stay the decision of the Secretary of the Department of Education made on 19 December 2019 to cancel the applicant's provider approval. The applicant seeks that the operation of the decision should be stayed until after a further and more complete hearing. The Tribunal has to determine whether it is desirable to do so.
2. Additionally, conditions may be imposed while granting a stay for a specified period of time, or if no period is specified, until the decision of the Tribunal on the application takes effect: section 43(3) of the CAT Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82.
3. Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances.
4. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].
5. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].
6. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]: "[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said: "In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only." [104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."
7. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Secretary Department of Education: see cf section 63(1) Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]; DBU v Secretary, Department of Education (supra) at [26]; Transcon v Secretary, Department of Education (supra) at [31].
8. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
9. The question of whether a stay is necessary to secure the effectiveness of the hearing is a mandatory consideration that the Tribunal must take into account when exercising the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39.

Considerations and the Evidence

1. The guiding principles under the National Law are in subsection 3(3) stated to be: ... (3) The guiding principles of the national education and care services quality framework are as follows- (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
2. The rights and best interests of the child are paramount in implementing the National Law. Since section 4 of the National Law requires an entity that has functions under the law to exercise those functions having regard to the objectives and guiding principles set out in section 3, the Tribunal is required to regard the rights and best interests of the child as paramount in making a determination as to the correct and preferable decision in this matter being, as it were, in the shoes of the original decision maker.
3. The principles enumerated in the subsection are all relevant and in particular best practice is expected in the provision of education and care services in order to ensure that the other principles are implemented.

Affidavit evidence from the applicant in support of the stay application

1. Meskerem Tesifaye is the nominated supervisor for the applicant. The applicant has been providing education and care to children as a family day care service since approximately 2014, the company having been originally incorporated in 2013 according to the evidence provided by the nominated supervisor in her affidavit. It is stated in the affidavit that when the respondent's inspectors attended various premises, they visited some educators who were not providing education and care on those dates. The submissions made in response to the show cause notice disputed many of the allegations raised in the notice.
2. The date of effect of the notice of cancellation of the provider approval was 8 January 2020. The nominated supervisor for the applicant became aware of the decision on 20 December 2019 through a parent who received an email from the Secretary notifying her that the provider approval had been cancelled. When the nominated supervisor could not find a copy of an email that was sent by the Secretary, the solicitor for the applicant was contacted and a letter was sent to the Secretary by email requesting further information and if available a copy of the letter setting out any decision. The physical letter was received by registered post on 24 December 2019. On 7 January 2020, which was the applicant's solicitor's first day back at work after the Christmas and New Year shutdown, the applicant's solicitor requested an extension of 14 days to the date of effect, to enable her to take full instructions and to advise the applicant. There was no agreement to an extension of time.
3. The applicant has provided further evidence through the nominated supervisor. The applicant has been unable to operate since the date of effect which was 8 January 2020. There are 21 educators who are registered with the applicant. They are waiting to learn the result of the application for the stay before seeking to register with another service. The applicant provided education and care to preschool and primary school children who returned to school last week and urgently require before and after school transport and education and care. The applicant states that many parents were also waiting to know the outcome of the stay application and have not sought to change to another service prior to the hearing of the application for a stay.
4. The six-month period from 1 July 2019 to 29 December 2019 showed substantial sums of money being paid for education and care services delivered during that period. The applicant has four employees. There are 21 educators who are independent contractors with their own Australian Business Numbers. The applicant is at risk of losing significant sums of money and provides work, income and superannuation for a significant number of people. If a stay is not granted this will cause significant financial loss and disruption.
5. It is suggested that the effect of the cancellation decision has been to cause serious distress, disruption and uncertainty to the applicant's employees and to the educators.
6. In addition, it is suggested that many children will be displaced and some may not be able to access education and care at all as a result of the decision. There is uncertainty as to whether educators and families will be able to transfer to a different provider or educators if a stay is not granted. If such transfers can occur then it may be disruptive to children who may be unnecessarily forced to adapt to new circumstances if the ultimate decision made by the Tribunal is favourable to the applicant.
7. It is the evidence of the applicant that there is significant flexibility and strong cultural diversity provided through the applicant and educators who will be forced to make alternative arrangements if the stay is not granted. It is stated that approximately 96 children are registered with the applicant.
8. Three of the named persons in the report of the September visit are no longer educators with the applicant.
9. The applicant states that the service is strictly operated and the response to the show cause notice is said to evidence those matters and improvements made in response to the show cause notice.
10. It is suggested that the family day care business may well be lost prior to the final determination of the review if the stay is not granted. It is submitted that this is not in the public interest and that there is no unacceptable risk to children if the applicant is permitted to continue to operate while the review is undertaken in the Tribunal.
11. There is little reason to doubt the evidence of the applicant as to the likely loss and disruption caused by the cancellation decision.

Submissions of the respondent

1. The respondent refers to the strict requirements of the National Law. It is identified that the applicant was granted provider approval on 12 February 2014. Service approval was granted on 23 April 2014. There is also a summary of the history which apparently identified a number of non-compliance issues in 2017. A further letter of non-compliance was issued in 2018. Following responses from the applicant in 2017 and 2018 all matters were subsequently resolved.
2. The show cause notice was provided to the applicant and a response was provided by the applicant on 12 July 2019.
3. The respondent submits that the onus which is placed upon the applicant that it is appropriate to make such an order for a stay has not been discharged. The affidavit evidence was considered by the respondent to be a necessary condition to discharge the onus but the factual matters which are referred to are said to be insufficient. It is apparent that the applicant has been operating for a number of years and there would be significant financial loss based upon the information provided in the affidavit. In addition, there would be significant disruption if the stay was not granted. It is difficult to foresee whether a successful review would be able to overcome the significant loss and disruption between the time of the cancellation decision coming into effect and the hearing of the review application. These appear both necessary and sufficient reasons to grant the stay.
4. It is also submitted that there would not be a preservation of the status quo if the stay were granted. In answer to that observation the time of the cancellation decision was immediately prior to the period where traditionally many businesses shutdown including lawyers such as those who represent the applicant in this application actually did. It is considered that no adverse inference could be drawn from the failure of the applicant to act any more quickly than it has acted.
5. It is also submitted by the respondent that the applicant's case could not be considered as particularly strong. There are factual matters which are placed into contention by the applicant. It is not possible to resolve those matters on an interim application such as this stay application. The Tribunal is required by the legislation to consider the matter through a clear lens. The original decision may have been perfectly reasonable and beyond reproach. The decision the Tribunal has to make is whether it is the correct and preferable decision at the time the Tribunal considers all the relevant matters, or in other words to determine what "the correct and preferable decision is having regard to the material then before it".
6. The alternative position put by the respondent in respect to the application for a stay of the cancellation decision is set out in the submissions provided by the respondent. The applicant, through its counsel, conceded that a stay could be granted on the terms and conditions proposed in the alternative by the respondent. The alternative proposed by the respondent addresses the issues which were identified by the inspectors by ensuring that those persons who were identified as being in breach of the National Law do not provide education and care for the applicant if it continues as a provider. The alternative was not the primary position of the respondent, but it sensibly addresses the issues raised and mitigates the perceived harm which might be caused in the circumstance that no conditions are imposed.

Conclusion

1. The ultimate determination of the correct and preferable decision must regard the best interests of the child as paramount.
2. The National Law facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.
3. On an interim basis it is assessed that the protection of children from harm can be mitigated by the imposition of terms and conditions as the price of the stay being granted. That will give effect to protecting the paramount interests of the child.
4. It is necessary on the evidence which can be determined on this interim application to grant a stay to secure the effectiveness of the determination of the application. The review hearing will be futile if a stay is not granted and the review is successful and in the applicant's favour.
5. The matter has been allocated a final hearing date in May 2020. Directions were made to prepare the matter for hearing. At the hearing the Tribunal will be able to determine whether the allegations are established or not and what the correct and preferable decision is having regard to the contested evidence. Any favourable decision made by the Tribunal will be rendered nugatory if the stay is not in place.
6. It is therefore determined that the stay application should be allowed on the alternative basis proposed by the respondent and to which the applicant agreed.

Order

1. The order of the Tribunal is that: 1. The Decision of the Secretary Department of Education ("the respondent") to cancel the provider approval of EEB ("the applicant") under the Children (Education and Care Services) National Law (NSW) made on 19 December 2019 is stayed until the resolution of the applicant's application for external review by the Tribunal (the proceedings 2020/15386) on the following conditions: 1. The applicant is prohibited from accepting any new enrolments in its education and care service. 2. The applicant is prohibited from engaging or registering: 1. any new educators; or 2. previously engaged or registered educators (including Marie Sarkis, Solange Loki Samba, Ouahiba Bougharga and Alaf El Ajouz). 1. The applicant is to suspend the provision of education and care by the following educators: 1. Olivera Ali Obaid; 2. Farah Javed; and 3. Rita Saman. 1. The applicant is to provide proof of the suspension is arising by order 1(c) to the Secretary by 5 pm on 6 February 2020. 1. It is noted for the avoidance of doubt that the stay arising by virtue of order 1 does not include a period available to commence any appeal and/or challenge to the decision of the Tribunal or any appeal and/or challenge filed during that time.

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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: 06 February 2020