Civil and Administrative Tribunal New South Wales Medium Neutral Citation: APlus Care 4All Pty Ltd v Children's Guardian [2019] NSWCATAD 187 Hearing dates: 15 August 2019 Date of orders: 10 September 2019 Decision date: 10 September 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: The application for a stay is dismissed. Catchwords: ADMINISTRATIVE LAW- review application where no internal review sought prior to application – jurisdiction of the Tribunal to hear the stay application – whether stay is desirable - interim stay sought under section 60 Administrative Review Act 1997 (NSW). Legislation Cited: Administrative Decisions Review Act 1997(NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 Commission for Children and Young People v FZ [2011] NSWCA 111 Elgammal v Director General, Department of Transport [1999] NSWADT 82 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 New South Wales Bar Association v Stevens [2003] NSWCA 95 Polini v Gray (1879) 12 Ch D 438 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Roberts v Balancio (1987) 8 NSWLR 436 Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None cited Category: Procedural and other rulings Parties: APlus Care 4All Pty Ltd (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent) Solicitor: Applicant (Authorised Officer) Crown Solicitor (Respondent) File Number(s): 2019/00234814 Publication restriction: None Reasons for Decision Introduction 1. On 15 August 2019 Ms K Austen and Ms R Phelps represented the applicant, which is a company apparently owned by Ms R Phelps and which employs Ms K Austen. It was considered appropriate for the applicant to be represented pursuant to section 45 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) for the purposes of the application before the Tribunal. As will appear from these reasons those persons were sufficiently qualified and have appropriate standing to represent the applicant, even though they had no legal qualifications, because of their knowledge of the applicant and involvement in its business. 2. The respondent was represented by counsel Ms A Douglas-Baker and opposed the stay application. 3. This is an application relying upon section 60 of the Administrative Decisions Review Act 1997 (NSW) and the applicant is now seeking a stay of the operation of the decision made by the Children's Guardian. The decision was made on 18 July 2019 by the Children's Guardian and notified to the applicant in a letter received on 23 July 2019. The decision which was made was the cancellation of voluntary out-of-home care registration pursuant to clause 74 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) ("the regulation"). It is clause 74 (2) (b) of the regulation which permits the Children's Guardian to cancel the registration if satisfied that an agency has failed to comply with any condition imposed on the agency's registration. The Children's Guardian determined that the applicant has failed to comply with the conditions imposed on the agency's registration. The decision takes effect from 18 July 2019. 4. The applicant was notified in the letter dated 18 July 2019 that pursuant to clause 7 (e) of the regulation and section 245 (1) (g) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that it was entitled to seek a review of the decision by the Tribunal. 5. The applicant has not sought an internal review of the decision. The application may be dealt with pursuant to section 55 (4) (b) of the Administrative Decisions Review Act in circumstances where the application is made in order to protect the applicant's interests and the application for review of the decision and for a stay was filed on 26 July 2019, which is within a reasonable time of the notification of the decision. The Tribunal determines to deal with the application on that basis. In addition, the Tribunal is satisfied that it is necessary to deal with the application in order to protect the applicant's interests even if an internal review has been sought and not yet determined. 6. The provisions of section 60 of the Administrative Decisions Review Act are as follows: 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. 1. In other words, the application for review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review. 2. The issue the Tribunal is to ultimately decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. That decision in this matter will not be made until the final hearing of the application. 3. On 15 August 2019 during hearing of this application, directions were made for the preparation of this matter for hearing. This means that a hearing date may be allocated on or after 23 October 2019. 4. The ultimate conclusion of the Tribunal on this stay application is that the applicant should not obtain a stay of the decision. The reasons for the refusal of the stay application decision are set out in detail in the following paragraphs. The material relied upon in the interim hearing 1. The documents relied upon for the interim application before the Tribunal are: 1. Application for stay or interim order filed 26 July 2019. 2. Bundle of documents filed 7 August 2019 which includes documents referred to as Attachments. 3. Documents filed by the Respondent for Stay Application on 13 August 2019. 4. Written outline of submissions for the respondent filed 14 August 2019. 5. Affidavit of Allison Waring for the respondent filed 13 August 2019. Legislative Provisions relevant to the interim decision 1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act. 2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32. 3. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: see e.g. Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436. 4. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division on an application for review of this current decision is entitled to be represented by a lawyer without seeking leave of the Tribunal: see sections 16, 17 and Schedule 3, clause 9(1), of the Civil and Administrative Tribunal Act. Also, costs may be awarded; see schedule 3, clause 13. The Issue 1. The applicant seeks to stay the decision of the Children's Guardian 18 July 2019 and the applicant seeks that the operation of the decision should be stayed until after a further and more complete hearing. The Tribunal has to determine whether it is desirable to do so. 2. In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302, the Court of Appeal (Basten JA, Campbell JA, and Handley AJA), Basten JA who was in the plurality stated at [21] in relation to section 60 Administrative Decisions Review Act: A stay is commonly granted to preserve the status quo or the subject matter of an appeal (or review), pending a final determination of the appeal. It is granted in the course of an appeal (or review) as a step in the process of determining the subject matter of the appeal (or review). Interlocutory orders of a kind which might not form part of the final determination are regularly made in the course of proceedings, including decisions with respect to the admission or rejection of evidence, the granting of adjournments, and numerous other matters. The material upon which the Commissioner based the decision under review might well be relevant to an interlocutory decision sought under s 60. The purpose of s 29(3) is to maintain the non-disclosure of the existence and content of identified information. To limit the purposes for which the protection was available, so as to exclude some interlocutory steps, would tend to subvert the purpose of the provision. 1. Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances whether on conditions or otherwise. 2. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]. 3. Additionally, conditions may be imposed while granting a stay for a specified period of time, or if no period is specified, until the decision of the Tribunal on the application takes effect: section 43(3) of the CAT Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82. 4. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104]. 5. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]: "[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said: "In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only." [104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight." 1. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: see cf section 63(1) Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. 2. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. 3. The question of whether a stay is necessary to secure the effectiveness of the hearing is a mandatory consideration that the Tribunal must take into account when exercising the discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. 4. In 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 at [5] the Supreme Court (per White J as he then was) emphasised that it is not Court's task "to conduct a preliminary hearing". In determining whether there is "a serious question to be tried" when considering an interlocutory injunction, it is to be assumed that any conflict in the evidence "would be resolved in the plaintiff's favour." The decision of Deputy President Hennessy in Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [34] applies that traditional formulation to a consideration of a stay pursuant to section 60 of the Administrative Decisions Review Act. The Deputy President also referred at [31] to [33] to the consideration of the prospects of the success or the merits of the review application as follows: [31] The corresponding provision in the Administrative Appeals Tribunal Act 1975 (Cth), section 41, is in similar terms but does not list the public interest as a mandatory consideration. Nevertheless, the prospects of success or the merits of the applicant's case on review have been regarded as relevant: Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 at 354. [32] In AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] the former Administrative Decisions Tribunal held that the phrase "secure the effectiveness of the determination" is another way of saying that there needs to be irreparable loss or harm to the applicant before consideration will be given to making an interim order. The Tribunal went on to say- [15] Section 60 is to be read keeping in mind the common law principles in relation to the exercise of interlocutory injunctions. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58, Acting Chief Justice Mason said at paragraph 11: "The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction". [33] In a practical sense the onus is on the applicant to make out a case that it is appropriate for the Tribunal to make such an order: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], Wright J, President citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694. 1. A decision the subject of review can be stayed by reference to section 60 of the Administrative Decisions Review Act. This is not a preliminary hearing. Such a course is consistent with the prior extract from AVS Group of Companies Pty Ltd v Commissioner of Police. 2. The representatives for the parties made oral submissions on 15 August 2019. It is not necessary to set out those submissions in full, and the substance of those submissions will be referred to as considered appropriate. Considerations and the Evidence 1. Voluntary out-of-home care (VOOHC) is regulated by the Children and Young Persons (Care and Protection) Act and Children and Young Persons (Care and Protection) Regulation. 2. All children and young people in voluntary out-of-home care on or after 7 February 2011 are covered by the legislation and regulation. 3. It is a criminal offence to provide VOOHC unless the agency or person is permitted to do so by the Children's Guardian. The provision of VOOHC does not include care or accommodation provided to a person over the age of 18, nor does it include supervision and accommodation during the day which does not extend to an overnight stay. 4. The effect of the decision made by the Children's Guardian prevents the applicant from caring for persons under the age of 18, and also prevents it from providing supervision and accommodation which extends to overnight stays for persons under the age of 18. That is, the agency does not require the permission of the Children's Guardian to provide services such as overnight accommodation to adults, assistance caring for children and young people during the day, or providing other supports to persons with disabilities and their families or carers. 5. The applicant provides care located at one site. The applicant had capacity to provide VOOHC to 8 children or young people depending on whether or not any adults were staying there at any given time. 6. There are 31 agencies registered to provide VOOHC located in the same geographical region as the applicant according to the affidavit of Allison Waring. 7. The Children's Guardian maintains a register of agencies permitted to provide VOOHC and that register contains information which accords with the statutory regime. 8. The applicant asserts that the decision to cancel the applicant's registration is unjustified, unfair and erroneous. It would appear however, that the Children's Guardian has monitored the applicant over a period of about 15 months in order to correct the applicants non-compliance with the conditions of registration and the VOOHC scheme. It is clear that these matters go to the safety and well-being of vulnerable children in VOOHC. 9. It is asserted by the applicant that a large proportion of its income is earned by overnight residential care. It is asserted that the earnings from overnight residential care for the period 1 January 2019 to 30 June 2019 was $196,378. There is no evidence provided to the Tribunal which would identify that the applicant would go out of business if the stay were not granted. 10. The applicant is concerned that the parents and carers of children who use their service will go to another disability service provider and not return to their organisation. It is asserted that parents and carers who care for a child with a disability will suffer stress, distress and disruption if they are not able to access overnight care or a child with a disability. 11. Representatives from the respondent have attended the premises of the applicant. This has been referred to as an on-site review. Such reviews occurred between 9-11 April 2018, 17-18 October 2018, and 18-19 June 2019. 12. The applicant provides VOOHC in the principal officer's home which is a four-bedroom home with 2 bedrooms for respite. The applicant provides residential care to adults with disabilities and also provides care for children and young people. The applicant provides transport, assistance with self-care, access to community, recreation and activities for both children and the adults in the home. The applicant provides overnight stays and day stay services to both adults and children. The applicant provided number of references from persons who have utilised its services and recommend the service. 13. A child or young person may be provided VOOHC at the request of a parent of a child or young person for not more than a total of 90 days in any 12 month period on a temporary basis, as respite care, and on an ad hoc basis or a routine basis from time to time within that time limitation. 14. The applicant was registered as a VOOHC on 30 October 2015. At that time it was notified of the statutory conditions applicable to VOOHC providers under schedule 4 of the regulation. These regulatory conditions have been imposed on the registration. Subsequently the applicant was notified of the changes to these conditions on 23 November 2016. Included in those changed conditions the applicant was required to comply with the Statutory Procedures for VOOHC issued by the Children's Guardian, and was required to maintain records of practice relevant to the safety, welfare and well-being of children and young persons for whom the agency provides, arranges or supervises a voluntary out-of-home care placement. Those records are to be available to the Children's Guardian for inspection upon request, in written form or an electronic format approved by the Children's Guardian. 15. On 17 December 2018 the applicant was informed in writing of the intention to cancel the agency's registration, as the Children's Guardian was satisfied that the conditions which were part of the registration had been breached. Details of those breaches were provided in writing and the applicant was given 28 working days in which to respond. 16. A response was provided by the applicant. The response was reviewed by the Children's Guardian. Then on 18 July 2019, the decision was made to cancel the applicant's registration. The reasons for cancellation identified 3 breaches of conditions of and/or statutory procedures relating to registration. The reasons in summary also identified significant child protection concerns such as placing adults and children together on multiple occasions, in bedrooms, and an absence of measures to ensure the administration of applicable medication regimes for children with disabilities, implementation of a restrictive practice (use of a helmet), and consistent non-compliance with recordkeeping requirements about commencement of and cessation of placements. 17. The on-site assessments conducted by the Children's Guardian are able to be given significant weight on this application, not only because they identify breaches of conditions, but because it would appear from the responses provided by the applicant which are contained in Attachment 3 of the documents filed on 7 August 2019 by the applicant, that there is a limited acknowledgement of failures in the past which the applicant states that they have improved upon and remedied. The review of those responses by the Children's Guardian is contained within the bundle of documents provided by the respondent (commencing at page 52). In essence, it is the assessment of the Children's Guardian that the issues raised in the on-site assessments have not been adequately addressed by the applicant. These are obviously contested issues of fact which this limited interim determination cannot determine. 18. It is not clear at this point in time that there is a case that the applicant will be entitled to the relief it seeks on a final hearing. Conclusion 1. The applicant bears an onus to satisfy the Tribunal that the operation of the orders should be stayed. The ultimate determination of the correct and preferable decision must also regard the best interests or safety welfare and well-being of the children as paramount. 2. The agency does not require the permission of the Children's Guardian to provide services such as overnight accommodation to adults, assistance caring for children and young people during the day, or providing other supports to persons with disabilities and their families or carers. 3. On an interim basis the protection of children from possible unacceptable risk of harm is facilitated by not granting the stay sought by the applicant because the issue is one which requires consideration of the contested allegations and a determination in accordance with the principles previously identified. 4. The applicant will suffer some detriment in the operation of its services if the stay is not granted. There is no clear evidence provided to the Tribunal which would identify that the applicant would go out of business if the stay were not granted. 5. The children and young persons to whom the applicant provides a service will also be inconvenienced by the failure to grant a stay. There are other services available in the same geographical area which will ameliorate that detriment. There is minimal evidence provided as to the identifiable detriment to the applicant if a stay is not granted. Any such detriment can be minimised by the preparation of this matter for hearing at the earliest time possible. The protection of the public is a matter entitled to significant weight. Upholding the interests of justice in the particular circumstances of this matter does not require the grant of a stay. 6. It is determined, on balance, that it is not necessary on the evidence which can be determined on this interim application to grant a stay to secure the effectiveness of the determination of the application. The review hearing also will not be futile if a stay is not granted. 7. The matter will be shortly, or by the time of this decision may have already been, allocated a final hearing date on or after 23 October 2019. At the hearing the Tribunal will be able to determine whether the grounds for review are established or not and what the correct and preferable decision is having regard to the evidence. The period of time during which the applicant will be unable to provide care other than overnight accommodation to adults, assistance caring for children and young people during the day, or providing other supports to persons with disabilities and their families or carers, is limited by the proposed expedited hearing date. Any decision made by the Tribunal will not be rendered nugatory because the stay is not in place. 8. Directions have already been made for the preparation of this matter for hearing. These reasons and this decision does not affect those directions. 9. It is therefore determined that the stay application should be dismissed. Order 1. The order of the Tribunal is that: 1. The application for a stay 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 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: 10 September 2019