EMY v NSW Education Standards Authority [2020] NSWCATAD 309

EMY v NSW Education Standards Authority [2020] NSWCATAD 309

The Tribunal refused the stay because the decision under review was only a recommendation to refuse registration, and under s 72(4) of the Education Act 1990 the Minister could not refuse to register ENA for home schooling until the Tribunal determined the administrative review. A stay was therefore not required to secure the effectiveness of the review. The Tribunal was also not persuaded that an order was desirable under s 60(3), given the affected interests, the imminent substantive hearing before the 2021 school year, the Authority's opposition, uncertainty about jurisdiction to make the proposed order, and the absence of any public interest requiring a stay.

Jurisdiction
Australia
Judgment Date
11 December 2020
Procedural Posture
Administrative Review of Recommendation to Refuse Registration for Home Schooling / Interlocutory Application for Stay
Outcome
Application for stay refused.
Legal Topics
['home Schooling Registration' 'stay of Administrative Decision' 'administrative Review' 'equal Shared Parental Responsibility']
['administrative Law' 'education Law'] ['home Schooling Registration' 'stay of Administrative Decision' 'administrative Review' 'equal Shared Parental Responsibility']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Administrative Review of Recommendation to Refuse Registration for Home Schooling / Interlocutory Application for Stay

Legal Issues

  1. 1 ['Whether the Tribunal should make an order under s 60 of the Administrative Decisions Review Act 1997 staying or otherwise affecting the operation of the recommendation to refuse home schooling registration pending determination of the administrative review.' 'Whether a stay order was necessary to secure the effectiveness of the determination of the administrative review application.' "Whether it was desirable to make a stay order having regard to the interests of affected persons, the administrator's submissions and the public interest."]

Ratio Decidendi

The Tribunal refused the stay because the decision under review was only a recommendation to refuse registration, and under s 72(4) of the Education Act 1990 the Minister could not refuse to register ENA for home schooling until the Tribunal determined the administrative review. A stay was therefore not required to secure the effectiveness of the review. The Tribunal was also not persuaded that an order was desirable under s 60(3), given the affected interests, the imminent substantive hearing before the 2021 school year, the Authority's opposition, uncertainty about jurisdiction to make the proposed order, and the absence of any public interest requiring a stay.

Court Disposition

Application for stay refused.

Orders

  • ['The application by EMY to stay the decision on internal review to recommend refusal of the application for registration of ENA for home schooling is refused.']