Galaxy Day Care Pty Ltd v Secretary, Department of Education and Training

Galaxy Day Care Pty Ltd brought an application against the Secretary, Department of Education and Training, seeking judicial review of a decision to cancel its approval as a provider of child care services. The applicant, which provides family day care services in south-western Sydney, operates in an area with a high number of low socio-economic families. The cancellation decision was made under the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) and would prevent parents from receiving child care subsidies if they continue to use the applicant's services. The applicant argued that the decision should be stayed until the completion of an internal review under the Act. The court had to determine whether the delegate's decision should be stayed until the internal review was completed, whether there was a serious question to be tried, and whether the balance of convenience favoured granting a stay.

The court considered that the seeking of internal review did not automatically stay the cancellation decision. However, the court recognised that the questions of balance of convenience and the prospect of success might shift as the internal review progressed. The applicant had provided an undertaking as to damages, which was a factor in favour of granting a stay. The court observed that it was in the applicant's interests to provide any further information sought by the Department in the context of the internal review expeditiously. Given the usual timeframe for internal review and the information provided about the progress of the internal review in this case, the court decided that a stay of the cancellation decision until 10.15 am on 22 November 2018 was appropriate.

The court made an order staying the cancellation decision until 10.15 am on 22 November 2018. If the respondent makes a decision on the internal review before that date, the applicant must take steps to have the matter relisted for consideration as to whether the stay should be vacated or extended. The applicant was granted liberty to apply for further orders.

ORDERS:
1. The decision of the delegate of the respondent taken on 2 October 2018 to cancel the applicant's provider approval be stayed until 10:15 am on 22 November 2018.
2. If the respondent makes a decision on internal review before 22 November 2018, the applicant, within 3 days of having received notification of any internal review decision, take steps to have the matter relisted before the docket judge or, if the matter has not been docketed, the General Duty Judge, for consideration as to whether the stay should be vacated or extended.
3. Liberty to apply.