Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Secretary, NSW Department of Education v Gabriel's Family Day Care Pty Ltd [2021] NSWCATAP 263 Hearing dates: 21 May 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member Dr J Lucy, Senior Member Decision: (1) The appeal is allowed. (2) The orders made by the Tribunal on 14 October 2020 are set aside. (3) The proceedings are remitted to a differently constituted Tribunal for redetermination based upon the evidence already adduced to the Tribunal and such further evidence, if any, as the Tribunal may allow. (4) The decision made by the delegate of the appellant on 19 December 2019 to cancel the respondent's provider approval is stayed until the redetermination of the proceedings by the Tribunal or further order on the following conditions: (a) The respondent is prohibited from accepting any new enrolments in its education and care service. (b) The respondent is prohibited from engaging or registering: (i) any new educators; or (ii) previously engaged or registered educators (including Marie Sarkis, Solange Loki Samba, Ouahiba Bougharga and Afaf El Ajouz). (5) Liberty to apply for a variation of the stay order in order 4 within 14 days of the publication of these reasons. Catchwords: ADMINISTRATIVE LAW-Children (Education and Care Services) National Law-cancellation of provider approval-whether s 31 (e) ground for cancellation included breach of condition to comply with National Law imposed by s 19 (2)-multiple alleged breaches-whether systemic failure to comply with condition of provider approval-whether alleged breaches established-whether alleged breaches sufficient to warrant cancellation of provider approval-whether Briginshaw principle applicable. APPEAL-adequacy of reasons-whether the Tribunal erred in failing to deal with the essence of the case for cancellation. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children (Education and Care Services) National Law 2010 (NSW) Education and Care Services National Regulations 2011 (NSW) Cases Cited: Beale v Government Insurance Office (NSW) (1997) 48 NSW LR 430 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 28 Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103 Gabriel's Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 43 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Kids Belong Family Day Care Pty Ltd v Department of Education [2021] NSWCATAD 112 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Texts Cited: None cited Category: Principal judgment Parties: Secretary, NSW Department of Education (Appellant) Gabriel's Family Day Care Pty Ltd (Respondent) Representation: Counsel: J Emmett SC, D Birch, A Poukchanski (Appellant) N Condylis (Respondent)