Two Cubed Pty Ltd v Secretary of the Department of Education NSW

Two Cubed Pty Ltd sought judicial review of a decision by the Secretary of the Department of Education NSW, refusing their application for provider approval under the Education and Care Services National Law. The applicant challenged the decision on the grounds that the Secretary was incorrect in finding that they were not a fit and proper person to provide childcare services. The matter was heard in the NSW Civil and Administrative Tribunal (NCAT) which, on appeal, was reviewed by the Supreme Court of New South Wales. The legal issues before the court were whether the Secretary’s decision was legally sound and whether the Tribunal should affirm, vary, or set aside the Secretary’s decision. The court considered the statutory criteria for a fit and proper person under the National Law and whether the Secretary's findings were supported by evidence. The court also examined whether the Tribunal had jurisdiction to review the Secretary’s decision and if the decision was correct and preferable.

The court found that the Secretary’s decision was legally sound and based on sufficient evidence. The applicant did not meet the standard of a fit and proper person due to a history of non-compliance with regulatory requirements and other factors considered under the National Law. The court held that the Secretary’s decision was within their statutory powers and that the Tribunal correctly exercised its jurisdiction in reviewing the decision. The court concluded that the Tribunal should not substitute its own decision for that of the Secretary, as the findings were reasonable and supported by evidence. The applicant's appeal was dismissed, and the original decision was confirmed.

The Supreme Court of New South Wales dismissed the applicant's appeal and affirmed the respondent's decision of 20 August 2018. The court also dismissed the application for review filed on 12 October 2018, finding that the applicant had not demonstrated that the Tribunal had erred in its review of the Secretary’s decision. The court's orders confirmed the respondent's decision and dismissed the applicant's appeal and application for review.