The case of 3 Bears Childcare Centre Pty Ltd v Secretary, Department of Education; Apple Bear Pty Ltd v Secretary, Department of Education; Hi5 Childcare Pty Ltd v Secretary, Department of Education was recently heard by the NSW Civil and Administrative Tribunal. This case (before the Appeal Panel) relates to an earlier case (see previous post). In this case the three services (appellants) appealed the Tribunal’s previous decision to refuse an application for a stay of the respondent’s (Department of Education) decision to cancel the appellants’ approval to operate the childcare centres from 4 July 2024. On 2 July 2024, after hearing the matter, the Tribunal granted a short stay until 6pm on 5 July 2024 so that parents could be notified. In this case the appellants detailed a number of grounds for appeal (quoted verbatim by the Tribunal at para. 13):
the short notice to cancel three approved providers will devastate all stakeholders especially children.
without final hearing it could cause more damage is and harms to children.
all respondents evidence are history of non-compliance related rather than should be based on current condition.
there are no evidence of current concerns to risks health and well being
evidence in one proceeding is to be treated as evidence in the other does not reflect the true pictures for others.
The Tribunal dismissed the appeal holding that (paras. 20-7):
As set out in the paragraph above, the Tribunal did consider the impact of closing the childcare centres on the families and children and the nature of the allegations and concerns about health and well-being.
The appellants were on notice from October 2023 that there were serious concerns about their compliance with the Children (Education and Care Services) National Law (NSW) when they were issued with a show cause notice.
The appellants had filed a significant amount of material before the Tribunal. On appeal the appellants submitted that they did not have an adequate opportunity to respond to the allegations because they did not understand who the person was who made the complaints against them but that having received the respondent’s material in paper form they were able to identify the person as a senior employee of the appellants. The appellants pointed to some statements made by this person that were wrong, such as children attending the centre on a Saturday.
The appellants made numerous submissions that the allegations made by the respondent were incorrect and that they could prove that was the case.
The grounds identified by the appellants do not raise any error in the manner in which the Tribunal exercised its discretion. The Tribunal did consider issues identified by the appellants and the respondent and clearly set out the reasons for the decision. The issues raised by the appellants on appeal go to the merits of their claim which will be considered at the substantive hearing, scheduled to take place in December 2024.
The appellants filed no written submissions on appeal but sought to rely on eight volumes of new documents. The appellants submitted that many of the documents were before the Tribunal but that pages had been added to refute the respondent’s evidence. The appellants also sought to rely on affidavits from six persons including staff, parents of children enrolled and Ms Ribarovski who is a consultant retained by the appellants.
The appellants did not suggest that that the new evidence was not reasonably available at the date of the hearing but rely on it as fresh evidence if it becomes appropriate to redetermine the stay application; s80(3)(b). As the Appeal Panel is not satisfied that the “grounds of appeal” warrant a new hearing, there is no cause to consider it.
The appellants failed to grasp that the Tribunal’s role in determining whether leave to appeal should be granted is based on a consideration of relevant principles referred to in paragraph [4] above and not on a consideration of the merits of their claim.
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