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

Mohamed trading as Billan Family Day Care initiated proceedings against the Secretary, Department of Education, Skills & Employment, seeking a stay of a decision to cancel its approval as a child care service provider. The Federal Court was required to determine whether to grant an interlocutory stay of the cancellation decision pending the completion of an internal review and the outcome of the applicant's judicial review application. The Court also had to consider the principles governing the grant of such a stay and whether an undertaking as to damages was required.

The Court held that it was appropriate to grant a stay of the cancellation decision on the condition that the applicant provides the usual undertaking as to damages. The Court considered that if the applicant were unsuccessful in its judicial review application, it would have been paid child care subsidies by the Commonwealth which it would not have been entitled to receive. The Court also noted that the subsidies were paid to the applicant, which charged its clients lower hourly rates for its services. The Court decided that it was appropriate, as a condition of the stay, that if the applicant were ultimately unsuccessful in its application for review, it would undertake to repay the child care subsidies received in the period from 28 June 2020.

The Court concluded that the cancellation decision made by the respondent in respect of the applicant on 7 May 2020 be stayed until the final determination of the applicant's originating application for judicial review of the cancellation decision. The Court also dismissed the applicant's interlocutory application and made orders timetabling the steps to hear the applicant's originating application. The Court ordered that the applicant pay the respondent's costs of and incidental to the hearing of the interlocutory application, but reserved costs in relation to the hearing of the originating application.

In summary, the Court granted a stay of the cancellation decision on the condition that the applicant provides an undertaking as to damages. The Court considered the principles governing the grant of such a stay and held that it was appropriate to grant a stay in this case. The Court also made orders timetabling the steps to hear the applicant's originating application and ordered that the applicant pay the respondent's costs of the interlocutory hearing.