Tanyous v Secretary, Department of Education [2018] NSWCATAD 197

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tanyous v Secretary, Department of Education [2018] NSWCATAD 197 Hearing dates: 9 May 2018 Date of orders: 27 August 2018 Decision date: 27 August 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 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. Catchwords: ADMINISTRATIVE REVIEW – Education and Care Services National Law – Provider Approval – Fitness and propriety of individual to be involved in the provision of an education and care service - Where respondent decided to refuse to grant provider approval on basis of lack of fitness –– Knowledge relevant to fitness - Correct and preferable decision

UNLAWFULLY OR IMPROPERLY OBTAINED EVIDENCE – Where respondent had a policy of requiring applicants for provider approval and relevant individuals to undergo an assessment prior to processing application – Where respondent decided that applicant was not a fit and proper person to be involved in the provision of an education and care service – Where decision was made on basis of assessment results showing lack of knowledge of National Law – Whether respondent's requirement that individuals undergo an assessment is lawful – Whether evidence concerning assessment lawfully obtained - Exercise of discretion as to whether to exclude evidence

COSTS – Where respondent late in filing and serving material - Whether special circumstances warranted an award of costs Legislation Cited: Children (Education and Care Services) National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Education and Care Services National Regulations Cases Cited: Bischoff v Sahade & Owners Corporation SP 62022 [2015] NSWCATAP 196 Brandusoiu v Commissioner of Police [2015] NSWCATAD 204 CFA v Department of Family and Community Services [2016] NSWCATAD 32 CFZ v Department of Education [2015] NSWCATAD 231 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 CYU v Secretary, Department of Education [2017] NSWCATAD 290 CZR v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 282 DBU v Secretary, Department of Education [2017] NSWCATAD 257 Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kee v Commissioner of NSW Police Force [2016] NSWCATAD 73 Lonergan v Commissioner for Fair Trading [2017] NSWCATAD 187 Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288 Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70 Sudath v Health Care Complaints Commission [2012] NSWCA 171 Category: Principal judgment Parties: Farid Tanyous (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: Marcus Legal Solicitors (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2018/00006592 Publication restriction: Publication of the document 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.