Transfer of Service Approval: Brisbane City Child Care Pty Ltd v Kadell & Anor

This is an unusual and complex case heard by the Court of Appeal, Supreme Court of Queensland. It concerns an application by Brisbane City Child Care Pty Ltd (applicant) for leave leave to appeal against the decision of a judge in a lower court to dismiss the applicant's case.

The facts of the case, in summary, are that the applicant owned and operated a childcare centre and they entered into a contract to sell the child care centre to a third party (Affinity Education Group Ltd). The Regulatory Authority (Queensland Department of Education) issued the required consent to the transfer of the service approval for the childcare centre under the National Law on conditions relating to fire and emergency evacuation and egress, and educator-child ratios, amongst other matters (under s.66(2)). Affinity withdrew from the purchase due to the conditions. The applicant did not accept that Affinity was entitled to terminate the contract. The Authority subsequently repealed its decision to issue the consent to the transfer of the service approval. Before the lower court the applicant sought a declaration that the imposition of the conditions on the consent to the transfer of the service approval was beyond power. The primary judge considered it inappropriate to grant the relief that the applicant sought on the basis of lack of utility, the third party was not a party to the proceeding and the applicant was seeking an advisory opinion. However, the Court of Appeal granted leave to appeal and referred the matter back to a lower court for trial, remarking (at paras. 62-3):

The ongoing relationship between the parties in relation to the sale of the child care centre is a relevant consideration for addressing the substantive dispute between them. Although the objective and guiding principles of the National Law and the objectives of the national education and care services quality framework must be at the forefront of the decision-making of the Authority, the dispute between the applicant and the Authority is not about avoiding best practice in the provision of a child care service, but about the timing and content of condition that can be imposed by the Authority in relation to the transfer of the service approval. 

The applicant’s notice of appeal did seek orders from this Court in relation to the proper construction of s 65(2) and s 66(2) of the National Law. The application for leave to appeal was argued on the basis, however, of endeavouring to show that leave to appeal should be given and that, if the appeal were allowed against the summary dismissal of the proceeding by the primary judge, the matter should be remitted to the Trial Division for the substantive issues between the parties to be decided. All that needs to be observed at this stage in relation to the substantive issues is that the applicant’s construction of s 66(2) of the National Law is sufficiently arguable in the context of the other provisions of the National Law, but particularly division 3 of part 3, to warrant consideration on the merits.