ABC Online carried a report on this court case.
In another related case, before the NSW Civil and Administrative Tribunal, Berry Patch Schofields Pty Ltd atf Berry Patch Schofields Unit Trust v Secretary, Department of Education, the Tribunal heard an application for interim costs by the Department. More interestingly, in that case, the Tribunal summarised the concurrent matters involving the Approved Provider and related parties (paras. 2-22):
A group of related companies, trusts and key people run five pre-school and long day care centres in Sydney. The key people involved with the Berry Patch centres are Mr and Mrs Gregory and Helen Jacobs and Mr and Mrs David and Melinda Brown.
Pending before the Tribunal are two proceedings, being Berry Patch Preschool Kellyville Ridge Pty Ltd v Secretary, Department of Education (No 2020/365480) (“BPKR proceedings”) and this proceeding involving Berry Patch Preschool Schofields Pty Ltd atf Berry Patch Schofields Unit Trust (“BPPS proceedings”).
Criminal proceedings have been commenced in the Local Court of New South Wales by the Respondent against BPKR and Mrs Helen Jacobs (“the criminal proceedings”) which relate to the death of a child in care at the BPKR service in 2018.
By way of background, it is relevant to set out the nature of the BPKR and the BPPS proceedings pending before the Tribunal.
BPKR proceedings
I have adopted the recital of the BPRK proceedings as set out in the Affidavit of Mr Brett Hearnden, solicitor for the Respondent.
The BPKR proceedings seek a review of a decision of the respondent refusing a service approval to BPKR under s 43 of the Children (Education and Care Services) National Law (NSW) (“the National Law”) in respect of a proposed service at 85 St Albans Road, Schofields (the “Schofields site”). These proceedings were commenced in the Tribunal by an application for administrative review filed on 24 December 2020.
In this application the Respondent filed 15 volumes of material, including:
an Affidavit of Dayna Greenfield affirmed 1 June 2021; and an Affidavit of Amanda Wilson affirmed 1 June 2021.
BPKR filed and served affidavits of Melinda Brown dated 16 April, 2 July, 6 July and 31 August 2021 (‘the Melinda Brown BPKR affidavits’).
BPKR also filed and served affidavits of Helen Jacobs.
A number of interlocutory applications were disposed of by the Tribunal at a hearing on 1 October 2021. Those applications were made at the request of each party. At that hearing on 1 October 2021, a number of orders were made, including an order that leave be granted to file and serve evidence in reply to the Affidavit of Amanda Wilson made 29 October 2021. The BPKR proceedings were listed for further directions on 31 March 2022.
Mrs Helen Jacobs, is the nominated supervisor of BPKR.
The BPKR proceedings were stood over for further directions to 28 July 2022 to set a hearing date.
The BPKR proceedings are yet to be heard in this Tribunal.
The criminal proceedings have been listed for further hearing in late November 2022.
A coronial inquest into the death of the child is yet to be confirmed. The coronial proceedings have been stood over to a date to be fixed after the conclusion of the criminal proceedings.
Mr Hearnden deposes that part of the respondent’s reasons for refusal of the service approval to BPKR related to the yet unresolved criminal proceedings and the coronial proceedings.
The BPPS proceedings
BPPS is the applicant in the BPPS proceedings seeking administrative review of a decision made by the Respondent on 24 June 2021 (“the Reviewable Decision”). It is this application which has been adjourned part-heard and is the proceeding to which the application for costs has been made. The application for administrative review was filed on 22 July 2021 and has been allocated proceedings (no. 2021/210560). The Reviewable Decision concerns a refusal by the Respondent pursuant to s 43 of the National Law to grant BPPS a service approval to operate a service at the Schofields site.
At the hearing on 1 October 2021, the Tribunal made orders for the filing of evidence in the BPPS proceedings. The proceedings were initially listed for hearing for five days commencing on 2 May 2022. An application on behalf of BPPS was made to vacate that date due to the unavailability of its Counsel. On 7 February 2022, the Tribunal vacated its previous orders made on 17 December 2021 and made a further timetable for the filing and serving of evidence and submissions, and relisted the hearing for five days commencing on 6 June 2022.
Relevantly, on 7 February 2022 the following orders were made:
1. Secretary, Department of Education is to file and serve all statements and documents in relation to the decision under review and an indexed and paginated bundle by 20 December 2021.
2. Berry Patch Preschool Schofields Pty Ltd atf Berry Patch Schofields Unit Trust is to file and serve in an indexed and paginated bundle all affidavits and other documentary materials on which it intends to rely by 18 February 2022.
3. Secretary, Department of Education is to file and serve any affidavits and other documentary materials in reply by 11 March 2022.
4. Berry Patch Preschool Schofields Pty Ltd atf Berry Patch Schofields Unit Trust is to file and serve an outline of submissions and a summary of legal arguments by 1 April 2022.
5. Secretary, Department of Education is to file and serve an outline of submissions and summary of legal arguments by 15 April 2022.
6. The hearing date of 2 May 2022 (5 days) is vacated.
7. The proceedings are listed for an in person hearing commencing on 6 June 2022 at 10.00 a.m. for 5 days at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney.
8. Liberty to apply on 3 days’ notice.
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