The Tribunal's power to grant a stay and the factors relevant to the exercise of its discretion to do so

1. The Tribunal's power to grant a stay of a decision under s 25(2) of the SAT Act and the factors relevant to the exercise of the discretion to do so were conveniently recently set out in the decision of Enoka v Combat Sports Commission [2024] WASAT 145 at [22] - [25] as follows:
   1. Under s 25(4) of the SAT Act, the Tribunal may make an order staying the operation of a decision the subject of a review only if it considers it desirable to do so after taking into account:

(a) the interests of any persons whose interests may be affected by the order; and

(b) any submission made by or on behalf of the decision-maker; and

1. However, the matters specified in s 25(4)(a) - (c) of the SAT Act are not an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision.
2. The language used makes it clear that the discretion conferred by s 25(4) of the SAT Act is a wide statutory discretion which is to be exercised judicially.
3. The principles relevant to the exercise of the discretion to grant a stay were set out by Tottle J, sitting as Supplementary President of the Tribunal, in Soutorine.[1] His Honour enunciated the following principles, which have since been repeated and adopted by Jackson J in Dobson[2] and Andrews:[3]

(a) s 25 of the SAT Act provides the Tribunal with a wide discretion to grant a stay that must be exercised judicially;

(b) any analysis of that discretion must begin with the terms of the statute, particularly s 25(4) of the SAT Act;

1. jurisdictions with a different statutory basis for the power to grant a stay; and
2. decisions concerned with the exercise of discretion to grant a stay in curial proceedings. In particular, where a stay application is brought within an application to review an administrative decision, a regulatory decision-making authority is not to be equated with the 'successful party' following a contest and determination;

(d) s 25(4) of the SAT Act does not exhaustively list the matters relevant to the Tribunal's consideration; and

(e) neither party bears an onus of persuading the Tribunal to grant a stay or not.

1. As noted above, one of the matters for which regard must be had in an application under s 25(4) of the SAT Act is the public interest. The 'public interest' in a particular case must be understood within its statutory context.[4]

1. The parties agree that the most important consideration in the exercise of the discretion is the interests of the children who attend the Centre.
2. The applicant says that in addition to the interests of those children, the interests of the following other persons which may be affected by the grant of a further stay are, first, the families of those children who will need to find an alternative early learning centre for their children to attend, secondly, the employees who currently work at the Centre who would need to seek alternative employment, thirdly, the applicant which would possibly lose the sale of the business, fourthly, the buyer of the business who would possibly lose the ability to take over the Centre.
3. Further, the applicant says that it will be contrary to the public interest if the stay is not continued, and the sale of the business possibly not proceed and the Centre closes.
4. The respondent accepts that there is no evidence of significant risk to the health and safety of the children who attend the Centre by the continued operation to the Centre by the applicant since 31 December 2024 until today by virtue of the stay order I made by consent on 18 December 2024.
5. However, the respondent says that it is not in the interests of the children for the Centre to continue to be operated by the applicant in circumstances where the sale of the business has not yet settled and, in the respondent's view, the persons with the management and control of the Centre are not fit and proper to be involved in the provision of an education and care service and the respondent further contends that the applicant breached a condition of provider approval.
6. The applicant says that there are other relevant factors which I should consider in deciding whether to continue the stay.
7. Those other factors are first, the balance of convenience which the applicant says favours allowing it to continue to operate the Centre while the final steps occur in the sale getting to settlement. Secondly, whether there is an arguable case for the cancellation decision to be set aside and/or be replaced with a different decision.
8. The respondent has not said anything about the balance of convenience factor but accepts that the applicant has an arguable case in respect of the review, although the applicant believes that it has a strong case that the cancellation decision will not be set aside upon review.

1. It seems that the only requirement remaining to be fulfilled before the settlement of the sale can be set and completed is the provision to the buyer's financier, believed to be Westpac, of a document described as a right of entry granted by the landlord of the premises to the financier. I have been told that the financier requires this document to be signed personally by the landlord and the landlord resides outside Australia and the right of entry document was sent to them and signed and returned, but it was not correctly witnessed, and another copy has been sent to the landlord to be signed and is expected to be returned in the near future.
2. However, the applicant has not provided any evidence regarding the whereabouts of that document and whether it has been signed by the landlord and when it is expected to arrive back in Perth and how soon after that the financier will set the date for the settlement of the sale.
3. The applicant says that it believes that settlement of the sale is most likely to take place by 2 May 2025, but it cannot be certain of this. In his affidavit affirmed on 4 April 2025 Mr Andre Kilian, who is a director of the buyer, states that the proposed settlement date is 2 May 2025.

1. In my view, it is in the interests of the children who attend the Centre and their families that there is certainty about the future of the Centre and no evidence has been put to me to demonstrate that it is not possible for settlement of the sale to take place by no later than 2 May 2025, which I note is still 16 working days from today.
2. Therefore, I have decided to extend the stay of the operation of the cancellation decision until 2 May 2025 and to list this proceeding for a directions hearing on Tuesday 6 May 2025, subject to availability of the legal representatives, to then program the review application for a final hearing if the applicant wishes to continue with the review application.

(1) Order 1 of the orders made by the Tribunal on 18 December 2024 is revoked.

(2) Pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA), the decision, the subject of the application for review, is stayed until 2 May 2025.

(3) The matter is listed for a directions hearing at 10.00 am on 6 May 2025 at 565 Hay Street, Perth, Western Australia.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Soutorine and The Medical Board of Australia [2020] WASAT 5.

[2] Dobson and Legal Practice Board of Western Australia [2022] WASAT 80 at [57] - [59]. Internal citations omitted.

[3] Andrews and Legal Practice Board of Western Australia [2024] WASAT 131.

[4] Andrews and Legal Practice Board of Western Australia at [34].