Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: O'BRYAN J
• Judgment Date: 25 June 2020
• Neutral Citation: [2020] FCA 900
• Date: 25 June 2020

FEDERAL COURT OF AUSTRALIA

Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment [2020] FCA 900

File number:	VID 374 of 2020
Judge:	O'BRYAN J
Date of judgment:	25 June 2020
Catchwords:	ADMINISTRATIVE LAW – purpose and scope of s 15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – principles governing the grant of a stay – whether an undertaking as to damages is required
Legislation:	A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth)
Cases cited:	Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1979) 146 CLR 249 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1640 Botany Bay City Council v Minister of State for Transport & Regional Development (1996) 90 LGERA 81 Cardile & Ors v LED Builders Pty Ltd (1999) 198 CLR 380 Century Metals and Mining NL v Yeomans (1988) 85 ALR 54 Galaxy Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1549 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Perkins v Cuthill (1981) 52 FLR 236 Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119
Date of hearing:	25 June 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Applicant:	Ms N Campbell
Solicitor for the Applicant	Kalus Kenny Intelex
Solicitor for the Respondent:	Mr D Brown of the Australian Government Solicitor

ORDERS

		VID 374 of 2020
BETWEEN:	SAGAL AHMED MOHAMED T/AS BILLAN FAMILY DAY CARE Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, SKILLS & EMPLOYMENT Respondent

JUDGE:	O'BRYAN J
DATE OF ORDER:	25 JUNE 2020

THE COURT ORDERS THAT:

1. Upon the applicant through its legal representative providing the usual undertaking as to damages, the provider approval cancellation decision made by the respondent in respect of the applicant on 7 May 2020 (the cancellation decision) be stayed until the final determination of the applicant’s originating application for judicial review of the cancellation decision or further order.

2. The applicant file and serve any further material upon which he proposes to rely at hearing in affidavit form, and written submissions of no more than 10 pages, by 13 July 2020.

3. The respondent file and serve any material upon which the respondent proposes to rely at hearing in affidavit form, and written submissions in response of no more than 10 pages, by 27 July 2020.

4. The applicant file and serve any submissions in reply of no more than 5 pages by 3 August 2020.

5. The parties file a joint electronic bundle of authorities and legislation in text-recognised PDF format which contains electronic bookmarks to each document in the bundle by 2 business days before the hearing of the originating application.

6. The originating application be listed on a date to be fixed on or after 3 August 2020 on an estimate of no more than one day.

7. The interlocutory application filed in this proceeding on 4 June 2020 be otherwise dismissed.

8. The applicant pay the costs of the respondent of the interlocutory hearing on 25 June 2020.

9. Costs otherwise be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. By originating application filed on 4 June 2020, the applicant seeks judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision of the respondent made on 7 May 2020 under s 195H of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act) to cancel the applicant’s provider approval (cancellation decision). The applicant seeks orders setting aside the cancellation decision. In support its application, the applicant filed an affidavit affirmed 4 June 2020.

2. By interlocutory application filed on 5 June 2020, the applicant also seeks an interlocutory order under s 15 of the ADJR Act that the cancellation decision be stayed until the respondent delivers a decision on its internal review of the cancellation decision being conducted under s 109A of the Administration Act. The evidence shows that the applicant sought an internal review of the cancellation decision on 12 May 2020 and that the present indication is that the internal review may not be completed until the end of the year. It is common ground that the Administration Act does not provide for the suspension or stay of the cancellation decision pending the completion of the internal review.

3. The proceeding came before me for case management on 17 June 2020 at a hearing conducted by telephone. Prior to that hearing, the respondent provided the applicant and the Court with a proposed consent order staying the cancellation decision pending the determination by the Court of the applicant’s originating application. The applicant would not consent to that order and pressed for the order sought in its interlocutory application staying the cancellation decision pending the completion of the internal review of that decision being conducted by the respondent under s 109A of the Administration Act. The respondent did not consent to the order sought by the applicant and I made orders for the filing of written submissions and the hearing of the applicant’s interlocutory application today.

Background

4. The evidence filed on this interlocutory application shows that the applicant conducts a family day care service operating in New South Wales and Victoria under the name Billan Family Day Care. Billan Family Day Care is approved to engage or register 125 family day care educators in Victoria and 15 educators in New South Wales. Currently it registers approximately 51 educators in Victoria and 7 in New South Wales. Educators provide care in their own home to children who are usually from their neighbourhood or surrounding area and often from a similar cultural background to that of the educator. Billan Family Day Care has 166 families that rely on it for family day care and provides family day care services to approximately 362 children. The families that use the service come from backgrounds of varying national heritage, including Australia, Pakistan, India, Sudan, Somalia, Iraq and Afghanistan. Most of the families come from lower socio-economic backgrounds. Many of the parents work shift-work and perform essential services, including emergency, health care services, aged care services, night-time cleaning, factory work and Uber driving. Many parents also attend English language classes during the day or at night-time to improve their education and job prospects. A number of parents are from single parent families.

5. Billan Family Day Care has been approved by the respondent, under s 195 of the Administration Act, to operate a Child Care Benefit Family Day Care Service since 1 October 2009. The operation of the relevant part of the Administration Act was summarised by Thawley J in Galaxy Day Care Pty Ltd v Department of Education and Training [2018] FCA 1549 (Galaxy) at [3]-[5]:

…The Act contains a number of provisions of an administrative,...