Joyful Kids Pty Ltd and Secretary, Department of Education
[2023] AATA 4036
•1 December 2023
Joyful Kids Pty Ltd and Secretary, Department of Education [2023] AATA 4036 (1 December 2023)
Division:GENERAL DIVISION
File Number: 2023/8205
Re:Joyful Kids Pty Ltd
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Senior Member K. Parker
Date:1 December 2023
Place:Melbourne
The Tribunal grants the Applicant’s extension of time application. Pursuant to sub-s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal extends the date for lodgement of the substantive application for review of decision to 4 December 2023.
..................................[sgd]......................................
Senior Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – application for extension of time (EOT) for lodgement of proposed application for review – EOT application opposed by the Respondent – Applicant seeks review of decision by the Respondent not to approve the Applicant as a “provider” under ss 194A and 194B of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) – delay of 38 days – consideration of Applicant’s explanation for the delay – Applicant wished to seek legal advice before making an application as it was unsure about the basis upon which the Respondent made the decision – the first lawyer engaged by the Applicant did not do what was required in a timely manner necessitating the Applicant to engage a second lawyer – whether any prejudice to the Respondent would arise from the belated lodgement of the proposed application for review – consideration of public interest – alternative avenues of review – Tribunal satisfied that it is reasonable in all the circumstances to extend the time for lodgement of the substantive application – EOT application granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Child Care Subsidy Minister’s Rules 2017 (Cth)
Education and Care Services National Law Act 2010 (Vic)
Cases
Hunter Valley Developments v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Senior Member K. Parker
1 December 2023
INTRODUCTION
On 6 July 2022, the Applicant, Joyful Kids Pty Ltd (Joyful Kids), submitted an application seeking approval as a “provider” under s 194A of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act).
On 24 February 2023, the Department of Education (Department) sent a notice to Joyful Kids of its decision to refuse Joyful Kids’ application for approval as a “provider” in respect of Joyful Kids’ service (Original Decision).
On 4 September 2023, Joyful Kids was informed that an Authorised Review Officer (ARO) from the Department had been appointed to review the Original Decision.
On 29 September 2023, the ARO made a decision to affirm the Original Decision on the basis that Joyful Kids does not meet the requirements for approval contained in para 194B(1)(a) of the Administration Act (Internal Review Decision). Specifically, the ARO was not satisfied that Joyful Kids, as a provider, or any person with management or control of this provider, is a “fit and proper person” to be involved in the administration of childcare subsidy or additional childcare subsidy or that Joyful Kids as a provider has arrangements in place to ensure it, or any persons with management or control of this provider (or for which they have responsibility), are responsible for managing compliance with family assistance law.
On 1 November 2023, Joyful Kids lodged an “Application for Extension of Time for Making an Application for Review of Decision” with this Tribunal (EOT Application). As of the date of handing down this decision, Joyful Kids has not yet lodged a completed AAT form entitled “Application for Review of Decision”.
Joyful Kids seeks an order by the Tribunal to extend the time for Joyful Kids to lodge a proposed substantive application for review of the Internal Review Decision. The EOT Application is opposed by the Respondent.
If Joyful Kids is to lodge its proposed substantive application on Monday, 4 December 2023, it would be lodged 38 days after the expiry of the 28-day statutory time limit under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The Registry listed this matter for an extension of time hearing (EOT Hearing), which took place on 29 November 2023. Both parties were legally represented at the EOT Hearing.
After hearing from both parties and considering the written material before the Tribunal, the Tribunal grants the EOT Application for the reasons set out below.
FACTUAL BACKGROUND
On 9 November 2015, Joyful Kids was registered as a proprietary limited company with the Australian Securities and Investments Commission.
Joyful Kids holds approvals under the Education and Care Services National Law Act 2010 (Vic) (National Law) to operate a childcare service in Victoria, specifically, a provider approval (PR-40023110, approved on 14 May 2021) and a service approval (SE-40022227, approved 4 April 2022).
Joyful Kids has not previously held any approvals under the family assistance law, which is a reference to A New Tax System (Family Assistance) Act 1999 (Cth) and the legislative instruments made under that Act.
Ms Sarah Radi is the Chief Executive Officer (CEO) of Joyful Kids. Ms Radi attended the EOT Hearing following a request made by the Tribunal.
Ms Safaa Rady has been identified in the Joyful Kids organisational chart as the “Educational Leader” and “Administration Representative” and, elsewhere, as the “day to day manager and nominated supervisor”. Ms Rady did not attend the EOT Hearing.
The ARO, in the Internal Review Decision, found that Ms Radi and Ms Rady are persons with authority or responsibility for, or significant influence over, planning, directing, or controlling the activities of Joyful Kids as a provider, as well as persons with day-to-day operation of the service as per sub-ss 194F(b) and 194F(c) of the Administration Act. The ARO found that Ms Radi and Ms Rady both meet the criteria of being persons with management or control of the provider under sub-s 194C(c) of the Administration Act.
The reasons the ARO affirmed the Original Decision are multi-faceted and include (without limitation) the following:
(a)a finding by the ARO that the experience and expertise of Joyful Kids, Ms Radi, and Ms Rady, weighs against a finding that they are “fit and proper persons” for the purpose of para 194E(1)(k) of the Administration Act;
(b)the ARO was not satisfied that Joyful Kids’ governance documentation demonstrated a sufficient commitment by it to complying with family assistance law obligations in operating a provider or service, and this weighs against a finding of fitness and propriety;
(c)a finding by the ARO that Ms Radi and Ms Rady have a reduced capacity to comply with family assistance law due to their involvement with another entity, being a registered training organisation; and
(d)the manner in which Joyful Kids has structured it arrangements suggested to the ARO that Joyful Kids, Ms Radi, and Ms Rady, have not formed a sufficiently detailed understanding of how family assistance law should be given effect, and how family assistance law operates in association with the National Law.
Joyful Kids proposes to seek review by this Tribunal of the Internal Review Decision.
ISSUE
The issue arising in this matter is whether the Tribunal should exercise its discretion under sub-s 29(7) of the AAT Act to extend the time for Joyful Kids to lodge a substantive application for review of the Internal Review Decision.
CONSIDERATION
Subsection 29(2) of the AAT Act prescribes a 28-day time limit for lodging a substantial application to the Tribunal for review of a decision. Subsection 29(2) relevantly provides:
Prescribed time for making applications—general
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or
(b) …
Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for lodgement of an application for review of decision, if it is satisfied that “it is reasonable in the circumstances to do so”.
Tribunal may extend time for making application
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
The factors the Tribunal will consider in making this assessment are:[1]
(a)the length of the delay in lodging the proposed substantive application for review;
(b)the explanation given for the delay;
(c)the Tribunal’s preliminary impression as to the merits of the substantive application;
(d)whether the Department has suffered any prejudice on account of the delay;
(e)whether Joyful Kids had rested on its rights of review;
(f)public interest; and
(g)any other matter the Tribunal considers appropriate (such as alternative avenues of review).
[1] Hunter Valley Developments v Cohen (1984) 3 FCR 344.
Firstly, the Tribunal has considered the likely length of the delay in Joyful Kids making an application for review of decision. Pursuant to subsection 29(2) of the AAT Act, an application for review of a decision is required to be made within 28 days of the date upon which the person received the reviewable decision. If Joyful Kids lodges an application on Monday, 4 December 2023, there will have been a delay of 38 days after the expiry of the 28-day statutory time limit. The Tribunal considers this to be a significant, but not lengthy, delay in lodgement.
Accordingly, the Tribunal considers that this is a neutral factor weighing neither in favour of nor against granting an extension of time.
Secondly, the Tribunal has considered the explanation given by Ms Radi for the delay in lodgement of the proposed substantive application.
Prior to the EOT hearing, the Respondent, in its Notice of Opposing Application for Extension of Time, dated 14 November 2023, made the following submission, at paragraph [2]:
The applicant has not provided any supporting evidence in relation to their explanation for the delay in bringing their application, and that explanation is neither reasonable or satisfactory. The applicant was plainly on notice of the relevant timeframes and is still yet to lodge a substantive application. A delay occasioned by a legal representative (noting it is unclear to what extent the applicant’s conduct is attributable to that delay) is not a sufficient reason to justify granting an extension of time where the weight of other considerations is against it: Re Zanbergs and Commonwealth Bank of Australia [2014] AATA 966 at [27] per Senior Member Toohey; El Masri and Optus Administration Pty Ltd [2023] AATA 525 at [32] per Senior Member Morris.
Joyful Kids’ legal representative sent a letter to the Tribunal, dated 28 November 2023, setting out the following explanation for the delay in lodgement:
Our client received the Notice of Review Decision by the Department of Education on Friday 29 September 2023. Our client read the document carefully and determined the decision and its repercussions were of a level of complexity that required legal advice and representation.
Our client contacted several law firms.
After several unsuccessful approaches, on or about 4 October 2023, our client took steps to retain a firm, Merhi Lawyers Pty Ltd. On or about 8 October 2023, a conference was arranged with Merhi Lawyers, to occur on 16 October 2023 – due to solicitor unavailability prior to then.
Our client also contacted consultants.
Our client took steps to obtain advice from a consultancy, JPS Advisers, for advice on the policies and procedures that were referred to in the decision by the Department of Education. Our client received advice and that advice was provided to Merhi Lawyers.
On 16 October 2023, our client met with Merhi Lawyers. Our client was told the solicitor would prepare and submit an application for review by 23 October 2023.
As at Friday 27 October 2023, our client had been chasing a substantial update from her prior solicitor. None was forthcoming, despite the deadline to submit an application for review.
Accordingly, our client approached our firm that same day. Our firm took steps to review the matter and provide an estimate on the very next business day, Monday 30 October 2023. On 30 October 2023, our client formally instructed our office to act.
As the period of 30 days had expired before we were formally engaged, we had no choice but to file an application for an extension of time. This application was emailed to the AAT on 1 November 2023.
At the EOT Hearing, the Tribunal provided Ms Radi with a further opportunity to elaborate on the circumstances occasioning the non-lodgement of the application for review within the statutory time limit. Ms Radi referred to having contacted the Registry of the Tribunal by telephone before the time limit had expired and she said she was encouraged to put in the application. Ms Radi explained that she was uncertain about the basis upon which the decision was made and that she felt she required legal advice and representation to help her understand the decision and whether to seek a review of it. She said needed a “confidence booster” or “assurance” that they had met the requirements for approval. She said she had spent a weekend reviewing the Internal Review Decision after she received it.
The Tribunal accepts that the reasons that were provided with the Internal Review Decision were both lengthy and complex. This was to be expected as the assessment required to be made by the Department about whether Joyful Kids and persons managing and controlling this entity met the requirements for approval under the family assistance law is inherently complex, due to the many criteria required by the relevant legislation and rules to be taken into account.
Due to this complexity, Ms Radi told the Tribunal she had made arrangements to meet with a lawyer to seek advice. It was identified as a result of initial discussions with the lawyer that advice was required from an industry expert. She said she had waited a further week for the first lawyer she had engaged to get back to her. She said at the end of that week, she had attempted to contact the lawyer. After waiting a further period, Ms Radi said she decided she would need to engage a new lawyer. The EOT Application was lodged two business day after the Applicant had approached the new lawyer, that is, on 1 November 2023.
The Tribunal is not bound by either of the AAT decisions referred to in paragraph [25] above. Each case before the Tribunal must be assessed based on the individual circumstances relating to each application. This is an application where the reviewable decision was lengthy, technical, and complex. The Tribunal understands why it had resulted in Ms Radi being confused about the prospects of success if she were to initiate a review of the Internal Review Decision and why she considered it prudent to seek legal advice and advice from an industry expert before doing so. With the benefit of hindsight, Joyful Kids should have lodged the application for review within the required timeframe, pursued legal and expert advice, and, if it subsequently formed a view its prospects of success were not reasonable or good, Joyful Kids was at liberty to withdraw the application for review at a later stage. However, for present purposes, the Tribunal considers the reason for the non-lodgement of the application within the statutory timeframe and, indeed, until the present time, is acceptable.
For this reason, the Tribunal finds that Joyful Kids had an acceptable explanation for the late lodgement of the EOT Applicant and proposed substantive application. This factor weighs in favour of granting the EOT Application.
Thirdly, in relation to the merits of the substantive application, the Respondent did not contest the general proposition that this application was, at least, arguable, and conceded that some of the criteria would be assessed against subjective findings to be made by the relevant decision-maker.
It would be inappropriate to make definitive findings as to the merits of the proposed substantive application at this stage of considering an EOT Application. Instead, the Tribunal is required to form a preliminary impression about the merits of the proposed substantive application and to satisfy itself that it is at least arguable. The Tribunal is satisfied that the proposed substantive application is at least arguable and cannot be said to be without merit.
This factor weighs in favour of granting the EOT Application.
Fourthly, the Respondent accepts that there had been no prejudice to the Respondent arising from the delay in lodgement of the proposed substantive application. The prejudice identified by the Respondent related to the burden of requiring to engage in a process of review should the EOT Applicant be granted. This is not prejudice occasioned by the delay itself and, as such, is not relevant to the Tribunal’s consideration.
Accordingly, the Tribunal concludes that this factor weighs in favour of granting the EOT Application.
Fifthly, the Tribunal has considered whether Joyful Kids has “rested on its rights”.
The Tribunal is satisfied that Ms Radi, on behalf of Joyful Kids, has proactively sought to address the Internal Review Decision by taking the steps as outlined in paragraphs [26] and [27] above. The Respondent has been on notice that Ms Radi does not accept the outcome of the Internal Review Decisions and seeks a review of it since 1 November 2023. In these circumstances, the Tribunal is not satisfied that Joyful Kids has “rested on its rights”.
Accordingly, the Tribunal considers this to be a neutral factor and does not weigh against the granting of the EOT Application.
Sixthly, the public interest gives rise to an expectation that parties will observe statutory timeframes when seeking review before this Tribunal. The delay in lodgement in this application was significant but not lengthy. Counsel for Joyful Kids submitted that the existence of deadlines for lodgement are for an important public purpose, however, this should be viewed in the context that the childcare service that Joyful Kids would like to provide would also serve an important public purpose, and that Ms Radi had taken positive steps to attempt to adhere to the statutory deadline.
The Tribunal considers that, overall, this factor weighs against granting the EOT Application, but only to a limited degree.
Finally, in the Respondent’s Notice of Opposing Application for Extension of Time, the Respondent asserts that it would be open to Joyful Kids to “seek fresh approval once the legitimate concerns identified by the delegate have been addressed, and once the application exclusion period provided for in s 41A of the Child Care Subsidy Minister’s Rules 2017 (Cth) has ended”. Joyful Kids submitted that the waiting period before which any such new application could be made was 18 months. The Respondent clarified that it would be open to Joyful Kids to make a new application for approval within nine months as nine months had already lapsed from the time the original application for approval as a provider was first made. Counsel for Joyful Kids asked that the Tribunal note the substantial delays occasioned to date in the processes of the application for approval being considered by the Respondent and the prospect this may occur again were Joyful Kids to make a fresh application.
The Tribunal is not satisfied there is a clear and satisfactory alternative avenue of review presently open to Joyful Kids such that it should weigh against the granting of the EOT Application.
The Tribunal has not placed any weight on this factor.
CONCLUSION
The Tribunal has concluded that there is one factor weighing against granting the EOT Application, specifically, the public interest giving rise to an expectation that parties will observe statutory timeframes when seeking review before this Tribunal.
The Tribunal has concluded that there are three factors weighing in favour of granting the EOT Application, specifically:
(a)based on a preliminary assessment of the evidence, the Tribunal is satisfied that the proposed substantive application cannot be said to be lacking in merit and is, at least, arguable;
(b)the Tribunal considers the explanation given by Joyful Kids for the delay as being acceptable; and
(c)the Respondent has not suffered any prejudice as a result of the delay.
The Tribunal considers that the factors weighing in favour of granting the EOT Application outweigh the single factor weighing against it. Accordingly, the Tribunal grants the EOT Application and orders, pursuant to sub-s 29(7) of the AAT Act, that the date for lodgement of the substantive application be extended to 4 December 2023. This means that if the Applicant lodges the substantive application on 4 December 2023, this application will proceed before the Tribunal in the usual manner.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker.
.............................[sgd]..........................................
Associate
Dated: 1 December 2023
Dates of hearing: 29 November 2023 Counsel for the Applicant: Nicholas Simone Solicitors for the Applicant: JB Solicitors Solicitors for the Respondent: Australian Government Solicitor
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