Tanyous v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2018-05-09|Before: Dr J

ment behind Tab 7 of the Respondent's Bundle of Relevant Documents (confidential version) is restricted to the parties, their legal representatives and the Tribunal, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act. The part of the hearing dealing with the document referred to in Order 1, insofar as it is not part of the open evidence, is to be conducted in the absence of the public. This order is made under section 49(2) of the Civil and Administrative Tribunal Act 2013. The Tribunal is satisfied that the evidence is confidential. The publication of the document referred to in Order 1, insofar as it is not part of the open evidence, and of that part of the hearing dealing with that document, insofar as it is not part of the open evidence, is prohibited. This order is made under section 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

The applicant applied for a review of a decision of the respondent ("the Secretary") to refuse his application for a provider approval. A person must be an approved provider in order to operate an education and care service, including a family day care service.
The reason the Secretary's delegate refused the application was that the delegate considered that the applicant had a poor understanding of the Children (Education and Care Services) National Law (NSW) ("National Law") and was therefore not fit to be involved in the provision of an education and care service. The Secretary based this decision on the applicant's results on a written assessment he was required to sit as part of the application process.

Background

On 12 July 2017, the applicant applied to the Secretary for a provider approval under s 10 of the National Law. A person must be an approved provider in order to operate an education and care service.
On 2 August 2017, the Department of Education invited the applicant to participate in an enhanced approval assessment process. The letter stated that this was mandatory for all persons proposing to be in management or control of a family day care provider.
The applicant undertook a written assessment in the space of an hour under exam conditions. The assessment required him to respond to questions about scenarios relating to the obligations of an approved provider under the National Law and the Education and Care Services National Regulations ("National Regulations").
The applicant was awarded a score of 17.86% for his response to questions concerning one scenario, and 28.57% for his response to questions concerning another scenario.
The Secretary refused to grant the applicant a provider approval under s 15(1)(b) of the National Law. The Secretary's delegate was not satisfied, within s 12 of the National Law, that the applicant was a fit and proper person to be involved in the provision of an education and care service. The delegate considered, having regard to the results of the written assessment, that the applicant did not have the required knowledge and understanding of the legislative requirements that he would be required to implement as an approved provider.
The applicant applied for an internal review of the decision. The internal reviewer reviewed the assessment and decided to award the applicant more marks, bringing his mark for both scenarios, when taken as an average, to 29.5%. The internal reviewer decided to confirm the original decision.
The applicant then applied to the Tribunal for review of the internal review decision.

Tribunal's jurisdiction

The internal review decision, made pursuant to s 191 of the National Law, is a reviewable decision for external review, pursuant to s 192 of the National Law. The applicant was entitled to apply to the Tribunal for review of the internal review decision under s 193 of the National Law. This application was required to be made within 30 days of the day on which the applicant was notified of the internal review decision: see National Law, s 193(2). The applicant was notified of the decision on 27 November 2017 and applied to the Tribunal on 5 January 2018. Accordingly, the applicant's application was late and it may not be determined by the Tribunal unless the Tribunal extends time for the making of that application under s 41(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
Subject to the question of timing, the Tribunal has jurisdiction to hear and determine the applicant's application. The Tribunal has general jurisdiction over the matter, as the National Law enables the Tribunal to make decisions of a kind specified by that legislation in respect of the matter and the matter does not fall within any other jurisdiction of the Tribunal (NCAT Act, s 29; DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [20]-[22]; CYU v Secretary, Department of Education [2017] NSWCATAD 290 ("CYU") at [17]).

Extension of time

The applicant applied for an extension of time for the making of his application to the Tribunal. The Tribunal may extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation: NCAT Act, s 41(1).
The Secretary neither consents to, nor opposes, an extension of time.
The principles relating to an application to extend time have been considered by the Tribunal in numerous cases and include those referred to in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, CFZ v Department of Education [2015] NSWCATAD 231, CFA v Department of Family and Community Services [2016] NSWCATAD 32 and Kee v Commissioner of NSW Police Force [2016] NSWCATAD 73 (see Lonergan v Commissioner for Fair Trading [2017] NSWCATAD 187 at [6]).
Senior Member Ransome has summarised some of the relevant factors in considering the exercise of the discretion to extend time (see Lonergan v Commissioner for Fair Trading [2017] NSWCATAD 187 at [7]) as follows: 1. the length of the delay; 2. the reason for the delay; 3. the applicant's prospects of success; 4. any prejudice suffered by the respondent; 5. public interest considerations; 6. timeliness or delay in antecedent administrative processes; and 7. whether strict compliance with the rules will work an injustice upon the applicant.
The applicant's explanation for the delay is that "the relevant time periods fell during the Christmas and New Year period" and that he "did not obtain proper legal advice and was unaware that Public Holidays may have been included in any time limits."
The application was required to be lodged by Wednesday 27 December 2017. This was not a public holiday. It was lodged by the Friday of the following week, 5 January 2018. It was 9 days late.
The failure to obtain legal advice is not a matter which will necessarily favour an extension of time, since the general rule in most divisions of the Tribunal is that parties represent themselves. Nevertheless, the Tribunal recognises that, if an applicant did wish to obtain legal advice about the application, it could have been difficult to do so over the Christmas holiday period.
The delay is relatively short. The respondent does not claim to have suffered any prejudice as a result of the delay and does not oppose an extension of time. The applicant raised some genuine concerns about the assessment he was required to sit and about the marking process. In these circumstances, the Tribunal considers that it is appropriate to extend the time for making the application to 5 January 2018.

Evidence illegally or improperly obtained

The applicant submits that the evidence of his assessment results should not be admitted, because it was illegally or improperly obtained. He relies upon my decision in CYU.
In CYU, I expressed the view (at [27]), that the Secretary's practice of conducting an assessment to determine whether applicants were "fit and proper" was not authorised by s 14(1)(b) of the National Law. I also rejected (at [30]) the submission that s 261 of the National Law provides a power to require applicants to undergo an assessment. I concluded (at [32]) that the assessment results of the applicant in that case were either improperly or unlawfully obtained. However, I decided to admit the evidence, considering that the public policy considerations which favour admission of the evidence outweighed the public policy considerations against admitting it (at [72]).
The respondent submits that CYU was incorrectly decided and relies upon CZR v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 282. In that case, however, the applicant did not take issue with the use of scenario questions to assess whether she was fit and proper (at [20]), and the Tribunal did not consider the issue.
I do not accept that CYU was incorrectly decided. The Secretary has essentially repeated its arguments, made in that case, in support of the proposition that the Secretary has power to conduct the assessment. For reasons given in CYU, I consider that the Secretary does not have such power, and the evidence of the applicant's assessment results was illegally or improperly obtained.
The next question is whether evidence of the applicant's assessment results should be admitted, notwithstanding that this evidence was not lawfully obtained.
I am not satisfied that the conduct of written assessments has resulted in "a serious and deliberate infringement of legal rights," a matter which would favour exclusion of the evidence, to use the language of Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 at [60].
The assessment of the applicant was conducted before my decision in CYU. The applicant submits, however, that there was a period of time after that decision was handed down on 28 September 2017 until 27 November 2017, when the Secretary took no steps to deal with the issues raised in CYU. I understand the applicant to be submitting that I should take this into account when exercising my discretion as to the exclusion of the evidence.
I am not satisfied that the applicant's assertion is correct. The applicant has not provided evidence to support it, and the Secretary's legal representative, Ms Lowes, informed the Tribunal that the Secretary had obtained advice in response to the decision and considered that the Secretary's construction was reasonable. In any event, the focus must be on whether, at the time the assessment was conducted, there was any serious and deliberate infringement of legal rights. As indicated above, I do not consider that there was. Even if it could be established that the Secretary had done nothing in response to the decision in CYU before 27 November 2017, I would not give this factor a great deal of weight.
Another important factor to consider, when determining whether to admit the evidence, is its probative value (Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [28]). The respondent submits that the evidence of the applicant's assessment is highly probative, as it could substantially affect the assessment of the probability of a fact in issue, being whether the applicant is a fit and proper person.
The Tribunal has considered the meaning of the expression "fit and proper" in many cases (see, for example, Brandusoiu v Commissioner of Police [2015] NSWCATAD 204 at [88]-[92]). For present purposes, it is sufficient to note that "fitness" has three components, one of which is knowledge: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157. Compliance with the National Law is expressly made relevant to fitness and propriety (see s 13(1)(a)), and knowledge of the National Law and the National Regulations facilitates such compliance. Such knowledge is relevant to whether a person is a fit and proper person to be involved in the provision of an education and care service.
The applicant does not dispute that knowledge of the National Law and National Regulations is relevant to fitness and propriety. He submits, however, that the assessment has little probative value, due to a number of "critical errors and mistakes" in the marking, and flaws in the design of the assessment.
For the reasons which follow, I accept the respondent's submission that the evidence of the applicant's assessment has significant probative value.
The applicant submits that the marking process was unfair. The reasons for this are developed in his written submissions and in a statement made by him, and were also explored at the hearing. The alleged problems include that there was an unfair inconsistency between the language used in a question and the marking rubric, and that the marker's response in relation to one question did not relate to the question asked. The applicant also contended that some of the responses which had been marked incorrect were in fact correct.
The applicant also complains about various features of the exam paper, including: 1. The short answer questions did not indicate how many marks would be allocated to each question; 2. The language used in the questions was inconsistent, confusing and/or not aligned with the marking criteria; 3. The answer space provided for each scenario question was inadequate; 4. In some questions, due to the marking criteria, marks could not be awarded for certain answers which were correct; 5. There were differences in the written directions for certain scenarios, which was confusing.
He submits, in essence, that the design and marking of the assessment did not allow him to demonstrate a sufficient understanding of the topic, and the disadvantages he experienced meant that he could not accurately display his knowledge, management capability, fitness or propriety.
I do not consider that the applicant's criticisms of the marking of the assessment, or of the assessment itself, taken as a whole, have validity.
The failure to indicate how many marks were to be awarded does not affect the quality of the answer. While it may help to explain why a more detailed answer was not given, it does not explain why an incorrect answer was given. The criticism that the answer space was inadequate loses its force, given that the applicant used space elsewhere on the form and drew an arrow to it. This did not disadvantage him. I do not agree that the language was inconsistent or confusing. There is no difficulty in the test using different directions for different questions; this is a common feature of examinations. Further, the evidence indicates that marks were awarded when answers were correct.
As the respondent submitted, the applicant's response to the assessment was not affected by the subsequent marking of the assessment. The Tribunal has considered the applicant's responses to the assessment questions; both in written form and taking into account his oral evidence at the hearing, and is of the view that they demonstrate a very limited understanding of the National Law and National Regulations.
The Tribunal also accepts that the assessment was marked by two officers who are experienced in investigating complaints and incidents, conducting compliance inspections and assessing and rating education and care services. Their opinions as to the adequacy of the applicant's responses should be given some weight. The internal review officer, who reviewed the assessment, concluded that a mark under 30% was warranted. The internal review officer's comments included that the applicant's responses "displayed very little understanding of the role and responsibility of an approved provider." The applicant was not even close to achieving a pass mark.
The respondent conceded that there were some errors in the marking, and some contestable decisions as to the marks the applicant should have been awarded. These were revised on the internal review. However, for reasons set out in a table annexed to the respondent's submissions, the respondent contends that the marks awarded to the applicant are generally defensible. The Tribunal agrees.
In any event, the question for the Tribunal is whether the applicant is a fit and proper person to be granted a provider approval. The responses provided by the applicant in his written assessment are probative of the issue of whether he has an adequate knowledge and understanding of the legislative requirements that he would be required to implement as an approved provider.
When exercising my discretion as to admitting the evidence of the written assessment, I take into account that exclusion of the evidence might lead to a person with inadequate knowledge of the National Law obtaining a provider approval. I accept the respondent's submission that the objectives of the National Law are promoted if persons in management have a knowledge and understanding of the National Law and National Regulations. These objectives include ensuring the safety and wellbeing of children (see National Law, s 3(2)(a)). Factors supporting the exclusion of the evidence include that exclusion may protect the administration of justice and that it would or might discourage illegal or improper conduct by regulators (see Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J at 565 [75] and Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288).
Having balanced these factors, I consider that the public policy considerations which favour admission of the evidence outweigh the public policy considerations against admitting it (cf CYU at [72]). I give particular weight to the consideration that the admission of the evidence tends to promote the objective of the National Law to ensure the safety and wellbeing of children.
Accordingly, I have decided to admit the evidence of the applicant's assessment.

Is the applicant a fit and proper person?

I am not satisfied that the applicant is a fit and proper person to be involved in the provision of an education and care service (National Law, s 12(2)(b)). This is because his written assessment indicates a lack of knowledge and understanding of the National Law and National Regulations which makes him unfit for such involvement. He has not provided any evidence to indicate that his knowledge or understanding has changed since undergoing the assessment. To the contrary, in many instances, he has defended his answers as being adequate.
In these circumstances, I have decided to confirm the Secretary's decision to refuse to grant the applicant a provider approval.

Costs

The applicant applied for costs of $2,695, being the costs which he says are attributable to the respondent's disadvantageous conduct of the proceedings.
The general rule is that each party to proceedings in the Tribunal is to pay the party's own costs (NCAT Act, s 60(1)). However, the Tribunal may award costs in relation to proceedings before it if it is satisfied that there are special circumstances warranting an award of costs (NCAT Act, s 60(2)). It suffices if the circumstances are out of the ordinary; they do not have to be extraordinary or exceptional: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60]; Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 at [24].
The applicant claims that the Secretary has caused continued delays in providing evidence and submissions in accordance with the Tribunal's directions. The applicant submits that special circumstances warrant an award of costs, because the applicant has been unnecessarily disadvantaged by the conduct of the Secretary's representatives in the proceedings (NCAT Act, s 60(3)(a)). The applicant also submits that special circumstances exist because, through the respondent's delays and non-compliances, the respondent failed to comply with the duty imposed by section 36(3) of the NCAT Act to co-operate with the Tribunal to give effect to the guiding principle (see NCAT Act, s 60(3)(a)).
The applicant complains, in particular, that: 1. his legal representatives received an unfiled version of the respondent's bundle of relevant material by email, six days late; 2. he was unaware until about a week later that the respondent had filed a different version of that bundle to that which was emailed to his legal representatives; 3. he received the respondent's evidence and submissions eight days late, both by email and by hard copy, and the hard copy was different from the soft copy in format and cover letter; and 4. the respondent's delays caused the applicant to fail to meet his own deadlines, which caused additional cost, stress and strategic disadvantage to him.
The applicant was given an opportunity to file evidence in support of his submissions, but did not do so. Even if I were prepared to treat the material in the submissions as evidence, I would not be satisfied that there are special circumstances in this case, warranting an award of costs.
Whilst it is not disputed that the respondent's material was six days late, the applicant took an additional five days to file his evidence. I am not satisfied that the respondent's late filing caused him significant disadvantage. The respondent informed the applicant that the respondent would not oppose an application to vacate the hearing date, but the applicant ultimately chose not to pursue such an application. The differences in the versions of the material provided to the applicant by the respondent were minor, in the nature of formatting differences. This should not have caused the applicant to incur costs of any significance. If his legal representatives were concerned about the discrepancies, they could have contacted the respondent's legal representatives for clarification, noting that the respondent was required to act as a model litigant.
Any failure of the respondent to comply with the duty in s 36(3) of the NCAT Act does not constitute special circumstances in this case. Whilst it is regrettable that the respondent did not file and serve its material on time in accordance with the Tribunal's directions, the failures were not excessive and the prejudice to the applicant was not significant, when viewed in the context of the proceedings as a whole.
I do not consider that special circumstances exist, warranting an award of costs. For this reason, the applicant's application for costs should be dismissed.

Orders 1. The time for the applicant to apply to the Tribunal for a review of the respondent's decision is extended to 5 January 2018. 2. The respondent's decision is confirmed. 3. The applicant's application for costs is dismissed.

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

Amendments 06 September 2018 - Clarification of publication restrictions 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 September 2018

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Judgment (11 paragraphs)

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Cases Cited (18)

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