Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education (No 2) [2020] NSWCATAD 249

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gabriel's Family Day Care Pty Ltd v Secretary, Department of Education (No 2) [2020] NSWCATAD 249 Hearing dates: 6,7,8 July 2020 Date of orders: 14 October 2020 Decision date: 14 October 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Dr J M Green, General Member Decision: (1) The decision of the respondent on 19 December 2019 to cancel the provider approval for Gabriel's Family Day Care Pty Ltd on the ground contained in section 31(e) of the Children (Education and Care Services) National Law (NSW) is set aside and in substitution for that decision the provider approval is amended in accordance with order 2. (2) The Tribunal imposes the following conditions in relation to the provider approval for Gabriel's Family Day Care Pty Ltd pursuant to section 58 of the Civil and Administrative Tribunal Act: (a) The applicant is to terminate the provision of education and care by the following educators: (i) Olivera Ali Obaid; (ii) Farah Javed; and (iii) Rita Suman. (b) The applicant is prohibited from engaging or registering the following educators: (i) Marie Sarkis; (ii) Solange Loki Samba; (iii) Ouahiba Bougharga; (iv) Afaf El Ajouz; (v) Olivera Ali Obaid; (vi) Farah Javed; and (vii) Rita Saman. (3) The application for review filed 16 January 2020 is otherwise dismissed. Catchwords: ADMINISTRATIVE LAW- Education and Care Services National Law – review of decision to cancel provider approval - Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – correct and preferable decision - whether the Tribunal should uphold the decision or substitute decision. Legislation Cited: Administrative Decisions Review Act 1997(NSW) Children (Education and Care Services) National Law (NSW) No 104a Children (Education and Care Services National Law Application) Act 2010 (NSW) Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) Children (Education and Care Services) Supplementary Provisions Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Education and Care Services National Regulations 2011 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 CMD v NSW Office of the Children's Guardian [2018] NSWSC 1348 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 CTG v NSW Department of Education Early Childhood and Care Directorate [2017] NSWCATAD 60 CVN v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 109 CVM v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108 CVT v NSW Department of Education & Communities, Early Childhood Education & Care Directorate [2017] NSWCATAD 74 CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132 CYU v Secretary, Department of Education [2017] NSWCATAD 290 DBU v Secretary, Department of Education [2017] NSWCATAD 257 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 Gabriel's Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 43 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 Nilufar v Secretary Department of Education [2020] NSWCATAD 37 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None cited Category: Principal judgment Parties: Gabriel's Family Day Care Pty Ltd (Applicant) Secretary, Department of Education (Respondent) Representation: Counsel: J Bennett (Applicant) D Birch (Respondent)