Gabriel’s Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 43

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gabriel's Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 43 Hearing dates: 30 January 2020 Date of orders: 06 February 2020 Decision date: 06 February 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: (1) The Decision of the Secretary Department of Education ("the respondent") to cancel the provider approval of EEB ("the applicant") under the Children (Education and Care Services) National Law (NSW) made on 19 December 2019 is stayed until the resolution of the applicant's application for external review by the Tribunal (the proceedings 2020/15386) on the following conditions: (a) The applicant is prohibited from accepting any new enrolments in its education and care service. (b) The applicant 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 Alaf El Ajouz). (c) The applicant is to suspend the provision of education and care by the following educators: (i) Olivera Ali Obaid; (ii) Farah Javed; and (iii) Rita Saman. (d) The applicant is to provide proof of the suspension is arising by order 1(c) to the Secretary by 5 pm on 6 February 2020. (2) It is noted for the avoidance of doubt that the stay arising by virtue of order 1 does not include a period available to commence any appeal and/or challenge to the decision of the Tribunal or any appeal and/or challenge filed during that time. Catchwords: ADMINISTRATIVE LAW- Children (Education and Care Services) National Law (NSW) – decision to cancel provider approval by the regulatory authority under section 33 – Objects and Principles of National Law – Children – Childcare Services –– Administrative review jurisdiction– External Appeal jurisdiction – whether stay is desirable - interim stay sought under section 43 Civil and Administrative Tribunal Act 2013 (NSW) – stay granted on conditions. Legislation Cited: Administrative Decisions Review Act 1997(NSW) Children (Education and Care Services) National Law (NSW) 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) Cases Cited: 3 Angels Family Day Care Pty Ltd v Secretary Department of Education [2017] NSWCATAD 265 Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 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 DAM v NSW Department of Education and Communities [2017] NSWCATAD 175 DBU v Secretary, Department of Education [2017] NSWCATAD 257 DPW v Secretary Department of Education [2018] NSWCATAD 257 Elgammal v Director General, Department of Transport [1999] NSWADT 82 Faaea v Secretary Department of Education [2018] NSWCATAD 85 Joy Child Care Ltd v Secretary, Department of Education [2017] NSWCATAD 340 Jump Start Family Day Care Pty Ltd v Department of Education and Training (Review and Regulation) [2019] VCAT 1631 Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 Long Life Family Daycare v Director General Education Directorate (Administrative Review) [2016] ACAT 69 M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) 82 ALR 577; (1988) 63 ALJR 108 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 Transcon Holding Pty Ltd t/as Sydney Multicultural Child Care Services v Secretary, Department of Education [2017] NSWCATAD 333 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None cited Category: Procedural and other rulings Parties: Gabriel's Family Day Care Pty Ltd (Applicant) Secretary Department of Education (Respondent) Representation: Advocates: I G Archibald (Applicant) M Pulsford (Respondent)