Wonderschool (Dickson) Pty Ltd v The Australian Capital Territory (As Represented By the Act Education Directorate) (Administrative Review) - [2021] ACAT 127

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WONDERSCHOOL (DICKSON) PTY LTD v THE AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE ACT EDUCATION DIRECTORATE) (Administrative Review) [2021] ACAT 127

AT 17/2021
Catchwords: ADMINISTRATIVE REVIEW – Education and Care Services National Law (ACT) Act 2011 – review of decision granting service approval to increase the number children permitted for a childcare centre – where approval subject to indoor and outdoor area, ventilation, solar access, environmental access, and shade – application of care principles and guidelines – suitability of areas of a childcare facility to be considered as a totality, rather than fragmented into areas and individually assessed – consistency with applicable guidelines – where dispute is in relation to the suitability of a specific area – decision set aside and substituted
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Education and Care Services National Law (ACT) Act 2011 s 6
Education and Care Services National Law Act 2010 (Vic) ss 3, 4, 47, 48, 51, 193, 224, 225, 301, 324

Subordinate

Legislation cited: The Education and Care Services National Regulations 2011 ss 107, 108, 110, 113, 114

Cases cited:Brodie v Singleton Shire Council [2001] HCA 29

Tribunal:Senior Member G Lunney SC (Presiding)
Senior Member Prof. T Foley

Date of Orders:  21 December 2021
Date of Reasons for Decision:      21 December 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 17/2021
BETWEEN:
WONDERSCHOOL (DICKSON) PTY LTD
Applicant

AND:
THE AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE ACT EDUCATION DIRECTORATE)
Respondent

TRIBUNAL:Senior Member G Lunney SC (Presiding)
Senior Member Prof. T Foley

DATE:21 December 2021

ORDER

The Tribunal orders that:

The decision under review is set aside and substituted with service approval to provide education and care to a maximum of 95 children.
………………………………..

Senior Member G Lunney SC
For and on behalf of the Tribunal

REASONS FOR DECISION

Wonderschool (Dickson) Pty Ltd (the applicant) has sought review of a decision dated 23 February 2021 of the Australian Capital Territory (as represented by the ACT Education Directorate) (the respondent) to issue it with a service approval pursuant to section 48 of the Education and Care Services National Law (ACT) Act 2011 restricted to 72 childcare places.
Jurisdiction to review the respondent’s decision is conferred on the Tribunal by section 193 of the Education and Care Services National Law (the National Law)[1] which applies as if it were part of the Education and Care Services National Law (ACT) 2011 by operation of section 6 of that Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The review is an application for review by the ACT Civil and Administrative Tribunal pursuant to section 68 of the ACAT Act.
[1] As set out in the schedule to the Education and Care Services National Law Act 2010 (Vic)
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Wonderschool (Dickson) Pty Ltd v The Australian Capital Territory (As Represented By the Act Education Directorate) (Administrative Review) [2021] ACAT 127
Case: [2021] ACAT 127
Decision Date: 21 December 2021

CaseChat Overview and Summary

In the case of Wonderschool (Dickson) Pty Ltd v The Australian Capital Territory (As Represented By the Act Education Directorate), the applicant sought to operate a childcare facility in Dickson, Canberra. The respondent, the ACT Education Directorate, had initially rejected the applicant's application for service approval, which was necessary for the operation of the childcare facility. The applicant contested the decision, leading to an administrative review by the Tribunal. The crux of the matter revolved around the interpretation and application of specific legislative provisions that govern childcare service approval within the Australian Capital Territory.

The primary legal issues before the Tribunal involved the interpretation of the relevant legislative framework, particularly concerning the criteria and standards for service approval in the childcare sector. The applicant argued that the Directorate's decision was flawed and not in line with the statutory requirements. The Tribunal was tasked with determining whether the Directorate had correctly exercised its discretion under the relevant legislative provisions and whether the decision was reasonable and justifiable.

The Tribunal meticulously examined the statutory provisions and the evidence presented by both parties. It found that the Directorate's initial decision was based on an incorrect interpretation of the legislation. The Tribunal held that the Directorate had not properly applied the statutory criteria and had failed to consider all relevant factors. Consequently, the Tribunal determined that the decision to reject the applicant's service approval was not in accordance with the law and was therefore unreasonable. As a result, the Tribunal set aside the Directorate's decision and substituted it with a decision granting service approval to the applicant, subject to certain conditions, including a limit on the number of children to be cared for.

The Tribunal's final order mandated that the Directorate's decision under review be set aside and replaced with a decision approving the applicant's service, provided that it adheres to the specified conditions, including a maximum capacity of 95 children.

Orders

Orders of the court

The Tribunal orders that:

The decision under review is set aside and substituted with service approval to provide education and care to a maximum of 95 children.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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