QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Thrisha Pty Ltd ATF Thrisha Trust t/as Thrish Montessori Childcare Centre Goodna v Department of Education [2023] QCAT 70	
PARTIES:	Thrisha Pty Ltd ATF Thrisha Trust t/as Thrish Montessori Childcare Centre Goodna	

(applicant)	

	v	
	Department of Education	

(respondent)	

APPLICATION NO/S:	GAR392-22	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	25 January 2023	
HEARING DATE:	On the Papers	
HEARD AT:	Brisbane	
DECISION OF:	Member Holzberger	
ORDERS:	The decision of the Department of Education dated 15 September 2022 to suspend the service approval is stayed pending the determination of the application to review a decision filed on 28 September 2022. 	
CATCHWORDS:	EDUCATION – INSTITUTIONS – EARLY CHILDHOOD EDUCATION AND CARE – where the applicant childcare provider applied to the Tribunal for a stay of the Department’s decision to suspend its service approval – where the Department alleged systematic and recurrent non-compliance with standards – where the suspension of service approval would risk disruption to children who attend the centre and to their families – whether the stay should be granted 
Education and Care Services National Law (Queensland), s 72
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254	
APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	On 15 September 2022 the regulatory authority Department of Education notified Thrisha Pty Ltd (Thrisha) of its decision to suspend Thrisha’s service approval for a period of three months from 4 October 2022 pursuant to section 72 of the Education and Care Services National Law (Queensland) (the national law).
[2]	Thrisha applied to the Tribunal for a review of the decision and a stay of its operation pending determination of the review on 28 September 2022.
[3]	On 30 September 2022 the Tribunal granted an interim stay pending determination of the application for a stay.
[4]	The stay application came before me for hearing on the papers. In considering the various materials filed and the written submissions of the parties, I've decided that in all the circumstances it is desirable to grant the stay. My reasons are set out below.
Background 
[5]	Thrisha holds provider approval and service approval under the national law to provide a centre-based childcare service from the Thrish Montessori Childcare Centre at Goodna. 
[6]	Those approvals were granted on 1 January 2012.
[7]	On 4 July 2022 the Department issued a show cause notice – suspension of service approval (“the notice”) alleging that the service was not being managed in accordance with the national law and operated at a level below the National Quality Standard (NQS).
[8]	The notice alleged: 
(a)	systematic and recurrent non-compliance; 
(b)	persistent failure to improve performance against the end NQS; and 
(c)	an unwillingness and/or inability to bring the service into compliance. 
[9]	Thrisha’s response to the notice was in effect to say that they had, since receiving the notice, brought the service into compliance. This is disputed by the Department, but the Department does acknowledge that some improvements have been made.
[10]	The service has over a period of years undergone three separate assessment and rating processes. Thrisha has received significant support and resources from the Department and has participated at the Department's request in a Targeting Quality Strategy (TQS) process.
[11]	Despite this the applicant’s service rating has continued to decline. 
[12]	It is apparent from the material that the Department believes it has no alternative but to suspend the service after its repeated attempts to assist Thrisha have failed.
Stay
[13]	The power of the tribunal to grant a stay is derived pursuant to section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which provides the Tribunal may grant a stay if it considers it desirable to do so.
[14]	It is well-established that to be granted a stay, an applicant must establish: 
(a)	that the applicant has an arguable case in the review application; and 
(b)	that the balance of convenience favours the grant.
[15]	The onus on the applicant is significantly more difficult to discharge in cases involving laws designed to protect the public rather than in cases of ordinary civil legislation.
Arguable Case 
[16]	The application for review will need to determine: 
(a)	whether compliance has been achieved when the review was heard; and
(b)	whether the suspension is the appropriate decision. 
[17]	Without expressing an opinion on Thrisha's prospects in either regard I am of the view that in respect of both, it has an arguable case. The Department does not concede the point but does not argue against it. 
[18]	In the event of disagreement between the parties as to whether compliance has been achieved in respect of a significant number of identified breaches, evidence will need to be provided. The Tribunal will make its decision in respect of each.
[19]	In balance of convenience the object of the national law is to ensure the safety, health, and well-being of children in education care facilities.
[20]	I accept that it is protective legislation and for the reasons set out in Kennedy the stay should not be granted unless there is a good reason to do so. 
[21]	Thrisha submits that it will suffer significant financial loss. In fact, Ratham Wimalachandran estimates Thrisha’s loss at $551,225, the calculation of which is contained in correspondence from 361 Degrees Accounting annexed to his affidavit sworn on 27 September 2022. 
[22]	That calculation contains a number of significant errors. It includes an amount of $280,000 being loss of goodwill and $101,256 in respect of staff expenses notwithstanding in the latter case, the assertion that the staff will need to be let go. 
[23]	I cannot see that a three-month suspension results in a loss of goodwill of the amount claimed.
[24]	Notwithstanding this, I accept that there will be significant financial and reputational consequences both short and longer terms. That is however a direct consequence of Thrisha’s failure to take the many chances to comply that it has been given. It is insufficient in my view to tip the balance of convenience in its favour.
[25]	The fact that does tip the balance of convenience is the nature of the service it provides. I'm not satisfied on the material that the suspension does not risk causing significant detriment to the children attending the centre or their families. 
[26]	In her affidavit filed on 13 October 2022 Erica McLuckie, Executive Director of Regulation Assessment and Service Quality outlines that other arrangements can be made including relocation to another centre operated by Thrisha and operating Thrisha’s existing bus service. 
[27]	I'm not satisfied that these are acceptable solutions. Presumably Thrisha’s other centre is beset at least with the same system of service. It is impossible to assess the issues each family will face if the service is suspended. The affordability, accessibility and quality of alternative arrangements will differ from case to case, the likely range being slight inconvenience to no alternative solution. 
[28]	Ms McLuckie accepts that some improvements have been made but concerns remain about “the entire system of service.” 
[29]	The Department has been aware of what it describes as a systematic and recurrent non-compliance over a period of years, periodically assessed on three separate occasions. It asserts declining compliance over time but acknowledges some improvements as a result of the issue of the notice.
[30]	It did not, through the course of those three assessments, identify an unacceptable risk of harm to the safety, health and well-being of the children justifying suspension as a result of any of those assessments. 
[31]	It does not identify a significant deterioration of compliance since the notice and in fact suggests some improvement.
[32]	The risk of significant disruption and in some cases hardship to the children and their families in my view results in the balance of convenience favouring the granting of the stay and I order accordingly.