Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272

Supreme Court New South Wales

Medium Neutral Citation: Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272 Hearing dates: 14 March 2023 Date of orders: 27 March 2023 Decision date: 27 March 2023 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Dismiss the further amended summons filed on 24 January 2023. (2) Order that the plaintiff pay the Minister's costs of the proceedings in this Court. (3) Grant the parties liberty to apply on three days' notice with respect to any consequential relief. Catchwords: ADMIINISTRATIVE LAW – judicial review – grounds – provision of financial assistance to non-government schools – discretionary power to recover funds from schools operating for profit – conditions of engagement of power – whether dependent on declaration that school non-compliant – power to recover part only of amount – whether Minister misapprehended scope of power ADMIINISTRATIVE LAW – judicial review – grounds – review of fact-finding – unreasonableness – outcome not unreasonable – challenge to material fact, not jurisdictional nor essential to outcome EDUCATION – non-government schools – government financial assistance – school operating for profit – funding continued – recovery of past payments made while school operating for profit STATUTORY INTERPRETATION – criteria of engagement of power – whether criterion dependent on satisfaction of decision-maker where not stated but other criteria were – whether declaration as to present circumstances extends to past periods – use of present tense "is" – Education Act 1990 (NSW), Pt 7, Div 3 Legislation Cited: Education Act 1990 (NSW), Pt 7, Div 3, ss 83B, 83C, 83D, 83E, 83F, 83J, 83K, 107 Evidence Act 1995 (NSW), s 91 Supreme Court Act (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 59.4, 59.9 Cases Cited: Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 19 FCR 127 CRI026 v Republic of Nauru [2018] HCA 19; 92 ALJR 529 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Malek Fahd Islamic School Limited v Minister for Education and Early Childhood Learning [2022] NSWSC 1176 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Texts Cited: M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Law Book Co) Category: Principal judgment Parties: Christian Community Ministries Ltd (Plaintiff) Minister for Education and Early Learning (Defendant) Representation: Counsel: PM Knowles SC / MT Sherman (Plaintiff) SAC Patterson (Defendant)