Al-Huda Pty Ltd v Secretary, Department of Education and Training
[2018] FCA 1668
•8 October 2018
FEDERAL COURT OF AUSTRALIA
Al-Huda Pty Ltd v Secretary, Department of Education and Training
[2018] FCA 1668
File number: NSD 1871 of 2018 Judge: FLICK J Date of judgment: 8 October 2018 Date of publication of reasons: 5 November 2018 Catchwords: ADMINISTRATIVE LAW – judicial review – stay – order staying a decision – availability of internal review – stay granted to permit internal review to be completed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 15
Federal Court of Australia Act1976 (Cth) s 23
A New Tax System (Family Assistance) (Administration) Act1999 (Cth) s 195H
Date of hearing: 8 October 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: Ms K N Pham Solicitor for the Applicant: Birchgrove Legal Solicitor for the Respondent: Mr A Ng of Australian Government Solicitor ORDERS
NSD 1871 of 2018 BETWEEN: AL-HUDA PTY LTD ACN 167 319 913
Applicant
AND: SECRETARY, DEPATMENT OF EDUCATION AND TRAINING
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
8 OCTOBER 2018
THE COURT NOTES:
1. The continuation of the undertaking as to damages given by Counsel for the Applicant.
THE COURT ORDERS THAT:
1.The stay of the decision of the delegate of the Respondent taken on 21 September 2018 to cancel the Applicant’s provider approval is continued up until 5.00pm on 5 November 2018.
2.The hearing of the Interlocutory Application dated 4 October 2018 is otherwise adjourned to 5 November 2018 at 9.30am before the Docket Judge or, if the matter has not been docketed, before the Duty Judge.
3.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
On 5 October 2018, the Applicant in the present proceeding, Al-Huda Pty Ltd (“Al-Huda”) filed an Originating Application for Judicial Review. The Respondent was named as the Secretary, Department of Education and Training (“Secretary”).
Judicial review was sought of a decision of a delegate of the Secretary cancelling Al-Huda’s approval as a provider of child care services under s 195H of the A New Tax System (Family Assistance) (Administration) Act1999 (Cth) (“Family Assistance Administration Act”).
That decision was preceded by a Departmental Notice of Intention to Impose Sanction dated 20 April 2018. The concerns then expressed were fundamental to the manner in which Al-Huda was said to be operating. The Notice thus stated in part that:
[13] In particular, I consider that the service has reported care in circumstances where it is likely that no care was provided. This is because the service:
a.attributed care to educators who were in fact overseas at the time the care was reported to have occurred. See table Overseas Educators for more information.
b.reported attendances for children who were in fact overseas at the time the care was reported to have occurred. The service did not report this care as an absence in accordance with the absence rules. See table Overseas Children for more information.
(Footnote omitted)
Al-Huda responded to that Notice by making submissions by letter dated 15 May 2018. A further Departmental communication of Further Contraventions of the Family Assistance Law dated 1 August 2018 was thereafter sent to Al-Huda. A submission in response was sent to the Department on 14 August 2018.
The decision cancelling the approval was made on 21 September 2018. It was expressed to “take effect on 8 October 2018”. On 5 October 2018, Al-Huda filed an Interlocutory Application. An order was sought under s 15(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “Judicial Review Act”) “suspending the operation of the decision”.
That Interlocutory Application first came before the Court as a Duty Matter on 5 October 2018, at which time a stay was granted up until 8 October 2018 upon an undertaking being given as to damages by Counsel for the Applicant. The matter came back before the Court on 8 October 2018 to consider whether the stay should be extended. Although the opportunity was then presented to have a final hearing on that date, the matter proceeding on an interlocutory basis. Upon the continuation of the undertaking as to damages, an order was then made continuing the stay until 5 November 2018.
Although an outline of the reasons for granting the stay was to be found in the transcript of the hearing of that Interlocutory Application, the solicitor appearing for the Secretary requested that formal reasons be provided. These are those reasons.
The primary basis upon which a stay was opposed by the Secretary was, it was contended, the “inappropriateness” of judicial review given the availability of merits review of the 21 September 2018 decision. The “current ongoing internal merits review process”, it was contended, was the more appropriate manner in which the dispute should be resolved. A stay of the decision, it was further submitted, would result in further payments being made by the Commonwealth and the very real prospect that those payments would be inappropriately retained by Al-Huda and not passed on to their intended recipients nor remitted to the Department.
That prospect, it was accepted, was of real concern. But it was understood that after the approval was cancelled there was no ability for payments to be made to Al-Huda whilst that internal review process was being progressed. The decision cancelling the approval would have the result that payments would cease from 8 October 2018. However, the Secretary also submitted that there was a mechanism under the Family Assistance Administration Act whereby the Applicant could be back payed if the decision was reversed during the internal review process.
A brief review of the Notices given to Al-Huda and the responses provided exposed a prospect that the 21 September 2018 decision may have been taken without taking into account submissions which had been made.
The primary bases upon which the stay was granted, accordingly, was that the proceeding then presented as one in which there was at least some prospect of legal error being ultimately exposed upon a final hearing and because of the likely disruption to the business operations of Al-Huda and those using the services it provided if a stay was not granted. A stay until 5 November 2018, it was considered, would at least permit the prospect that the internal review process could by then be completed. Given that the concerns of the Department had arisen by no later than 20 April 2018, the further continuation of payments for a comparatively short period of time was considered the preferable course to risking the disruption to the business operations of Al-Huda and the disruption of the services it offered to others.
It was unnecessary given these conclusions to venture into the area of whether the power to grant a stay under s 15 of the Judicial Review Act permitted greater flexibility in the grant of interlocutory relief than that which could be granted pursuant to s 23 of the Federal Court of Australia Act1976 (Cth).
CONCLUSIONS
Although the concerns of the Department were real and thoroughly documented in the Notices it had given to Al-Huda, it was considered on balance appropriate to grant a stay for a limited period of time.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 5 November 2018
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