Gold Age (Aust) Pty Ltd as trustee for the HMJ Trust v Acting Executive Director, Regulation and Quality, as the Delegate of the Chief Executive Officer, Department of Communities

[2025] WASAT 74

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: EDUCATION AND CARE SERVICES NATIONAL LAW (WA) ACT 2012) (WA)

CITATION:   GOLD AGE (AUST) PTY LTD AS TRUSTEE FOR THE HMJ TRUST and ACTING EXECUTIVE DIRECTOR, REGULATION AND QUALITY, AS THE DELEGATE OF THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [2025] WASAT 74

MEMBER:   MR D AITKEN, SENIOR MEMBER

HEARD:   7 APRIL 2025

DELIVERED          :   7 APRIL 2025

PUBLISHED           :   21 JULY 2025

FILE NO/S:   CC 813 of 2024

BETWEEN:   GOLD AGE (AUST) PTY LTD AS TRUSTEE FOR THE HMJ TRUST

Applicant

AND

ACTING EXECUTIVE DIRECTOR, REGULATION AND QUALITY, AS THE DELEGATE OF THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES

Respondent

Catchwords:

Education and Care Services National Law - Application for stay of decision to cancel provider approval - Interim stay by consent of the parties - Whether the stay should be continued - What is in the interests of the children who attend the early learning centre - Turns on its own facts

Legislation:

Education and Care Services National Law (WA) Act 2012 (WA), s 33
State Administrative Tribunal Act 2004 (WA), s 25(2)

Result:

Stay of decision extended to a fixed date

Category:    B

Representation:

Counsel:

Applicant	:	Ms J McKenzie
Respondent	:	Mr D Oliver

Solicitors:

Applicant	:	Meridian Lawyers (Perth)
Respondent	:	Department of Communities - Legal Practice

Case(s) referred to in decision(s):

Andrews and Legal Practice Board of Western Australia [2024] WASAT 131

Dobson and Legal Practice Board of Western Australia [2022] WASAT 80

Enoka v Combat Sports Commission [2024] WASAT 145

Soutorine and The Medical Board of Australia [2020] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been taken from the recording of the hearing.  They have been edited to improve legibility, add headings and footnotes and make necessary corrections for the purposes of correcting any grammatical errors or infelicity of expression without altering the substance of the reasons.)

Introduction

1. The applicant was issued provider approval PR40023765 under the Education and Care Services National Law (WA) Act 2012 (WA) (National Law) on 30 October 2020 pursuant to which it operates the Morley Early Learning Centre (Centre).

2. On 15 October 2024, the respondent made the decision to cancel the provider approval of the applicant under s 33 of the National Law with effect from the close of business on 31 December 2024 (cancellation decision).  Upon the cancellation taking effect, the applicant will no longer be able to operate the Centre. 

Application for the stay of the cancellation decision

1. On 13 November 2024, the applicant commenced this proceeding seeking a review of cancellation decision and on 26 November 2024 (review application) the applicant made an application under s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for an order that the operation of the cancellation decision be stayed (stay application).

2. The application for a stay was listed for hearing on 18 December 2024 and at that hearing I made orders by consent of the parties which stayed the cancellation decision on an interim basis with the hearing of the stay application adjourned to 14 February 2025.  The reason for that was that the applicant had sold the Centre business, and the respondent was happy to allow a period of time for the applicant to progress the sale, which was subject to a number of conditions, including the buyer obtaining approval of finance.

3. On 7 February 2025, I made orders by consent of the parties which vacated the hearing listed for 14 February 2025 and relisted the hearing for today.

4. At the hearing today, the applicant is seeking that the stay be continued until the review of the cancellation decision has been determined by the Tribunal, and the respondent opposes the stay being continued. 

The Tribunal's power to grant a stay and the factors relevant to the exercise of its discretion to do so

1. The Tribunal's power to grant a stay of a decision under s 25(2) of the SAT Act and the factors relevant to the exercise of the discretion to do so were conveniently recently set out in the decision of Enoka v Combat Sports Commission [2024] WASAT 145 at [22] - [25] as follows:

   22Under s 25(4) of the SAT Act, the Tribunal may make an order staying the operation of a decision the subject of a review only if it considers it desirable to do so after taking into account:

   (a)the interests of any persons whose interests may be affected by the order; and

   (b)any submission made by or on behalf of the decision-maker; and

   (c)the public interest.

   23However, the matters specified in s 25(4)(a) - (c) of the SAT Act are not an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision.

   24The language used makes it clear that the discretion conferred by s 25(4) of the SAT Act is a wide statutory discretion which is to be exercised judicially.

   25The principles relevant to the exercise of the discretion to grant a stay were set out by Tottle J, sitting as Supplementary President of the Tribunal, in Soutorine.[1]  His Honour enunciated the following principles, which have since been repeated and adopted by Jackson J in Dobson[2] and Andrews:[3]

   [1] Soutorine and The Medical Board of Australia [2020] WASAT 5.

   [2] Dobson and Legal Practice Board of Western Australia [2022] WASAT 80 at [57] - [59]. Internal citations omitted.

   [3] Andrews and Legal Practice Board of Western Australia [2024] WASAT 131.

   (a)s 25 of the SAT Act provides the Tribunal with a wide discretion to grant a stay that must be exercised judicially;

   (b)any analysis of that discretion must begin with the terms of the statute, particularly s 25(4) of the SAT Act;

   (c)care must be taken in looking for guidance to:

   i)jurisdictions with a different statutory basis for the power to grant a stay; and

   ii)decisions concerned with the exercise of discretion to grant a stay in curial proceedings.  In particular, where a stay application is brought within an application to review an administrative decision, a regulatory decision‑making authority is not to be equated with the 'successful party' following a contest and determination;

   (d)s 25(4) of the SAT Act does not exhaustively list the matters relevant to the Tribunal's consideration; and

   (e)neither party bears an onus of persuading the Tribunal to grant a stay or not.

   58As noted above, one of the matters for which regard must be had in an application under s 25(4) of the SAT Act is the public interest. The 'public interest' in a particular case must be understood within its statutory context.[4]

   [4] Andrews and Legal Practice Board of Western Australia at [34].

Submissions by the parties

1. The parties agree that the most important consideration in the exercise of the discretion is the interests of the children who attend the Centre.

2. The applicant says that in addition to the interests of those children, the interests of the following other persons which may be affected by the grant of a further stay are, first, the families of those children who will need to find an alternative early learning centre for their children to attend, secondly, the employees who currently work at the Centre who would need to seek alternative employment, thirdly, the applicant which would possibly lose the sale of the business, fourthly, the buyer of the business who would possibly lose the ability to take over the Centre.

3. Further, the applicant says that it will be contrary to the public interest if the stay is not continued, and the sale of the business possibly not proceed and the Centre closes. 

4. The respondent accepts that there is no evidence of significant risk to the health and safety of the children who attend the Centre by the continued operation to the Centre by the applicant since 31 December 2024 until today by virtue of the stay order I made by consent on 18 December 2024.

5. However, the respondent says that it is not in the interests of the children for the Centre to continue to be operated by the applicant in circumstances where the sale of the business has not yet settled and, in the respondent's view, the persons with the management and control of the Centre are not fit and proper to be involved in the provision of an education and care service and the respondent further contends that the applicant breached a condition of provider approval. 

6. The applicant says that there are other relevant factors which I should consider in deciding whether to continue the stay.

7. Those other factors are first, the balance of convenience which the applicant says favours allowing it to continue to operate the Centre while the final steps occur in the sale getting to settlement.  Secondly, whether there is an arguable case for the cancellation decision to be set aside and/or be replaced with a different decision. 

8. The respondent has not said anything about the balance of convenience factor but accepts that the applicant has an arguable case in respect of the review, although the applicant believes that it has a strong case that the cancellation decision will not be set aside upon review.

Consideration

1. It seems that the only requirement remaining to be fulfilled before the settlement of the sale can be set and completed is the provision to the buyer's financier, believed to be Westpac, of a document described as a right of entry granted by the landlord of the premises to the financier.  I have been told that the financier requires this document to be signed personally by the landlord and the landlord resides outside Australia and the right of entry document was sent to them and signed and returned, but it was not correctly witnessed, and another copy has been sent to the landlord to be signed and is expected to be returned in the near future.

2. However, the applicant has not provided any evidence regarding the whereabouts of that document and whether it has been signed by the landlord and when it is expected to arrive back in Perth and how soon after that the financier will set the date for the settlement of the sale. 

3. The applicant says that it believes that settlement of the sale is most likely to take place by 2 May 2025, but it cannot be certain of this.  In his affidavit affirmed on 4 April 2025 Mr Andre Kilian, who is a director of the buyer, states that the proposed settlement date is 2 May 2025.

Conclusion

1. In my view, it is in the interests of the children who attend the Centre and their families that there is certainty about the future of the Centre and no evidence has been put to me to demonstrate that it is not possible for settlement of the sale to take place by no later than 2 May 2025, which I note is still 16 working days from today.  

2. Therefore, I have decided to extend the stay of the operation of the cancellation decision until 2 May 2025 and to list this proceeding for a directions hearing on Tuesday 6 May 2025, subject to availability of the legal representatives, to then program the review application for a final hearing if the applicant wishes to continue with the review application.

Orders

1. The orders I am proposing to make are that:

   (1)Order 1 of the orders made by the Tribunal on 18 December 2024 is revoked.

   (2)Pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA), the decision, the subject of the application for review, is stayed until 2 May 2025.

   (3)The matter is listed for a directions hearing at 10.00 am on 6 May 2025 at 565 Hay Street, Perth, Western Australia.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR D AITKEN, SENIOR MEMBER

21 JULY 2025