Dino Dinov v Allianz Australia Insurance Limited

Background

1. In 2002, a company known as Great Wall Constructions Pty Ltd (the builder) undertook to construct a residential strata title development at Lilyfield. The builder could not lawfully do that work unless there were in force, in relation to it, a policy of insurance that complied with the Home Building Act 1989 (NSW) (the HB Act) [1] . The respondent (Allianz) was prepared to provide such a policy, but only on condition that the appellants (the indemnifiers), who were directors and shareholders of the builder or their associates, agreed to provide indemnities. This they did.
2. Allianz issued the policy on 2 December 2002. The builder thereafter carried out the work. The work was completed in late 2003, and a final occupation certificate was issued on 18 December 2003.
3. The strata plan was registered on 23 January 2004. Thereupon, the Owners Corporation for the strata scheme came into existence, and the common property of that scheme became vested in the Owners Corporation.
4. In July 2009, the Owners Corporation made a claim against Allianz for indemnity under the policy in respect of loss or damage (defects in the common property) said to have been caused in breach of the statutory warranties implied by s 18B of the HB Act. Great Wall was deregistered, and thereupon ceased to exist, in November 2010. Allianz accepted liability under the policy in August 2011. Remedial work was carried out. On 14 February 2013, Allianz settled with the Owners Corporation, on the terms set out in a written agreement styled "Terms of Settlement".
5. Allianz made demand upon the indemnifiers pursuant to the deeds of indemnity that they had provided. The indemnifiers refused to indemnify Allianz. Allianz commenced proceedings in the District Court.
6. By the time proceedings came on for trial below, the amount of the indemnity (if entitlement were proved) was agreed at $185,000. Further, Allianz and the indemnifiers agreed that the only issue between them was whether Allianz's claim was barred by operation of s 109ZK(1) of the EPA Act. The primary judge held that s 109ZK(1) did not bar Allianz's claim. Accordingly, his Honour gave judgment for Allianz in the agreed sum.
7. The indemnifiers appeal to this court from the whole of the decision of the primary judge. In essence, the grounds of appeal argue that the primary judge erred in his construction of the definition of "building action" in s 109ZI of the EPA Act. (The limitation set out in s 109ZK(1) prohibits "a building action" from being brought more than 10 years after the date of issue of the final occupation certificate). The grounds of appeal in effect particularise that contention in various ways, but it is unnecessary to state their detail.

The HB Act

1. Section 18B of the HB Act implies various statutory warranties into every contract to do residential building work. Since there is no doubt that the warranties applied to the work done by the builder and were breached, it is not necessary to set out their detail. By s 18C of the HB Act, the benefit of the statutory warranties extends to "[a] person who is the immediate successor in title to… a developer who has done residential building work on land". It is common ground that the Owners Corporation, as the immediate successor in title to the developer with whom the builder contracted to do the residential building work in question, had the benefit of the statutory warranties.
2. As I have noted, s 92 requires residential building work to be insured. I set out s 92(1): 92 Contract work must be insured (1) A person must not do residential building work under a contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract.
3. Sections 103BB and 103BC of the HB Act (which were enacted after the events in question took place, but which have retrospective effect) provide time limits for claims under policies of insurance required by s 92 for residential building work. Those sections read as follows: 103BB Time limits for policies issued from 1.7.2002 (1) A contract of insurance under the Home Building Compensation Fund entered into on or after 1 July 2002 provides insurance cover in respect of loss only if a claim in respect of the loss is made to the insurer during the period of insurance. Note: Subsection (1) is the general rule but there are exceptions to this general rule, as provided by this section. (2) A loss that becomes apparent in the last 6 months of the period of insurance has an "extended claim period" , which permits a claim in respect of the loss to be made within 6 months after the loss becomes apparent. There is no extended claim period for a loss that arises from non-completion of work. (3) When a loss becomes apparent during the period of insurance but a claim cannot be made during that period because an insured event has not occurred, a claim can be made after the period of insurance (as a "delayed claim") but only if: (a) the loss was properly notified to the insurer during the period of insurance (or within 6 months after the loss became apparent in the case of a loss that became apparent in the last 6 months of the period of insurance), and (b) the beneficiary under the contract of insurance making the claim diligently pursued the enforcement of the statutory warranty concerned after the loss became apparent. (4) A delayed claim can also be made when the insured event occurs in the last 6 months of the period of insurance (as if the insured event did not occur until after the period of insurance) subject to compliance with the other requirements of this section for a delayed claim. (5) (Repealed) (6) The regulations can make provision for or with respect to what constitutes or does not constitute diligent pursuit of the enforcement of a statutory warranty for the purposes of this section. (7) A loss is "properly notified" to an insurer only if the insurer has been given notice in writing of the loss and the notice provides such information as may be reasonably necessary to put the insurer on notice as to the nature and circumstances of the loss. The regulations can make provision for or with respect to the form and content of such a notice. 103BC 10-year "long stop" limit on claims under existing policies (1) Despite any other provision of this Act, a contract of insurance under the Home Building Compensation Fund entered into before 1 July 2010 does not in any circumstances provide insurance cover in respect of loss unless a claim in respect of the loss is made to the insurer within 10 years after the work insured was completed. Note: Section 3B provides for the date of completion of residential building work. (2) This section does not operate to extend any period of insurance.

The EPA Act

1. When Part 4C was first introduced into the EPA Act, with effect from 1 July 1998, it provided as follows, in ss 109ZI, 109ZJ, 109ZK and 109ZL: Division 1 Preliminary 109ZI Definitions In this Part: building action means an action (including a counter-claim) for loss or damage arising out of or concerning defective building work. building work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of building work. subdivision action means an action (including a counter-claim) for loss or damage arising out of or concerning defective subdivision work. subdivision work includes the design, inspection and issuing of a Part 4A certificate or complying development certificate in respect of subdivision work. Division 2 Liability 109ZJ Apportionment of liability (1) After determining an award of damages in a building action or subdivision action, a court must give judgment against each contributing party for such proportion of the total amount of damages as the court considers to be just and equitable, having regard to the extent of that party's responsibility for the loss or damage in respect of which the award is made. (2) Despite any Act or law to the contrary, the liability for damages of a contributing party is limited to the amount for which judgment is given against that party by the court. (3) A contributing party cannot be required: (a) to contribute to the damages apportioned to any other person in the same building action or subdivision action, or (b) to indemnify any such other person in respect of those damages. (4) In this section contributing party, in relation to a building action or subdivision action, means a defendant to the action found by the court to be jointly or severally liable for the damages awarded, or to be awarded, in the action. 109ZK Limitation on time when building action or subdivision action may be brought (1) Despite any Act or law to the contrary: (a) a building action may not be brought in relation to any building work more than 10 years after the date on which the relevant final occupation certificate is issued, and (b) a subdivision action may not be brought in relation to any subdivision work more than 10 years after: (i) in the case of work completed before the relevant subdivision certificate is issued, the date on which the relevant subdivision certificate is issued, or (ii) in the case of work completed after the relevant subdivision certificate is issued, the date on which the compliance certificate that certifies that the work has been completed is issued. (2) This section does not operate to extend any period of limitation under the Limitation Act 1969. 109ZL Division not to affect rights to recover damages for death or personal injury Nothing in this Division applies to or affects any right to recover damages for death or personal injury arising out of or concerning defective building work or subdivision work.

Relevant provisions of the policy, the indemnities and the Terms of Settlement

1. Clause 1 of the policy provided indemnity to "the Building Owner". I set it out, so far as it is relevant: 1. The Insurer will indemnify the Building Owner for loss or damage in respect of residential building work: 1.1 which results from non-completion of the work because of the insolvency, death or disappearance of the Contractor; 1.2 arising from breach of a statutory warranty and which either the Contractor is unable to rectify, or the Building Owner is unable to recover compensation from the Contractor, because of the insolvency death or disappearance of, the Contractor.
2. Clause 6 of the policy provided for limits on liability. Nothing of present moment turns on those limits.
3. Clause 2 of the deeds (there were several, in identical terms) provided as follows: 2. The indemnifier unconditionally and absolutely agrees to Indemnify and keep indemnified the Insurer for all loss, damage, costs, charges, or other liabilities incurred or paid as a result of any claim arising under the Policy and all amounts which the insurer must pay and is liable to or may become liable to pay under the said policy (whether or not the Insurer has paid any amount) in all cases whether or not the claim arises or is made before or after the date of this deed PROVIDED ALWAYS that the amount of such indemnity shall be no greater than $200,000 per claim.
4. Clause 3(c) provided: 3(c) On receiving a demand from Dexta or the Insurer, the indemnifier will pay to Dexta all of the monies so demanded forthwith, together with interest at the rate of Ten per cent (10%) per annum from the date of such demand, all losses, damages, costs, charges, fees expenses or other liabilities borne by the Insurer, whatsoever incurred by the insurer, which shall become due and payable on receipt of such demand:
5. Clause 4(a) provided: 4(a) The Indemnifier unconditionally, irrevocably and without any reservation, requests, authorises and consents to Dexta settling or compromising any claim, suit or judgment under or relating to the Policy without any notice, consent or any communication with the Indemnifier or the obtaining any further consent, and the Indemnifier shall not compete with Dexta for any claim whatsoever and howsoever obtained against the Contractor:
6. "Dexta" is Dexta Corporation Limited, which acted as agent for Allianz in connection with the insurance. The "Insurer" was defined to mean Allianz.

The reasons of the primary judge

1. The primary judge articulated the nature of the dispute. He set out the (agreed) facts and the terms of the relevant legislation. After directing himself as to the principles applicable to the construction of statutes, the primary judge turned to the resolution of the dispute.
2. First, his Honour considered a number of "contextual and historical matters". They indicated to him that the definition of "building action" in s 109ZI "was not aimed at proceedings of the type in the present proceedings" [2] .
3. His Honour noted [3] that it was common ground "that some limitation must be read into the natural and ordinary meaning of 'building action' [because, if it were not] it would cover, because of the general words used, a number of causes of action which could not have been objectively intended to be prevented". It was not suggested in this appeal that his Honour had erred in stating that this was common ground between the parties. Nor was it suggested that his Honour had erred in accepting it as correct.
4. The primary judge said [4] that the proper limitation upon those general words should be ascertained by reading the definition in the context of the statute as a whole, and taking into account its purpose or object and the mischief sought to be overcome. Again, no one submitted that his Honour erred, in principle, in approaching the matter in that way.
5. The primary judge identified the relevant "mischief" [5] as follows: 58 It is clear, and is accepted by the parties, that the mischief which Part 4C was intended to remedy was the decision of the High Court in Bryan v Maloney (1995) 182 CLR 609. That case raised the spectre of a potential "indeterminate time liability" for builders and building professionals to successors in title. That was the mischief which Section 109ZK sought to overcome. The case was important not just to bare liability but also to the potential need for building professionals to have insurance cover for lengthy periods including lengthy run off insurance cover.
6. Again, neither party submitted that his Honour had erred in stating that this was the common position of the parties at trial. The indemnifiers' complaint was, rather, that the primary judge had erred by (so it was said) confining the meaning of "building action" to "addressing claims for compensation arising from latent defects identified in Bryan v Maloney …" [6] . It is convenient to say at this point that I do not think that the primary judge said anything of the sort.

The parties' submissions on appeal

1. Mr Bambagiotti of Counsel, who appeared for the indemnifiers, submitted that the primary judge had erred in giving the definition of "building action" a narrower construction then the meaning that, he said, was apparent from its plain words. He submitted that the primary judge fell into error in this way, because he had sought impermissibly to constrain the proper construction of the definition by reference to his Honour's erroneous perception of the mischief that Part 4C of the EPA Act was intended to combat. He referred in particular to the reasons of the primary judge at [66] where his Honour stated: The above interpretation is, in my view, confirmed by the Explanatory note to the Environmental Planning and Assessment Amendment Bill 1997 which gave rise to the 1997 Amendment Act. That makes clear that the imposition of a limitation period of 10 years under the proposed Section 109ZK in the amendment Act was designed to address the law concerning latent defects in Bryan v Maloney in which the then current approach was that the "limitation period begins to run only when the defect becomes apparent". It was apparently from the note not intended to cover causes of action of the type in the current proceedings.
2. Mr Bambagiotti noted, correctly, that what was in issue was the proper construction of a statutory definition, rather than the construction of a not substantive provision (in this case, s 109ZK(1)). He submitted that statutory definitions should not be limited or qualified unless the language used or its context dictated that this should be done.
3. Mr Bambagiotti submitted that the evident purpose of Part 4C was to alleviate the problems, for those involved in performing building work (as defined) and their insurers, perceived to have arisen from the decision of the High Court in Bryan v Maloney [11] . That problem, Mr Bambagiotti submitted, was the spectre of indeterminate liability for building work: liability that was unlimited as to time, as to amount and as to those to whom it might be owed. Mr Bambagiotti submitted that the only proper way to give effect to this, as he called it, beneficial legislation was to construe it broadly, so as to ensure that the statutory purpose was achieved.
4. Mr Bambagiotti noted, correctly, that the language of connection or causation linking "action" to "defective building work" was of the widest possible kind. When read into s 109ZK(1), he submitted that the effect was to introduce a time bar for any action connected with the defective building work, regardless of the nature of the cause of action.

The approach to statutory construction

1. Counsel's submissions placed some emphasis on ss 33 and 34 of the Interpretation Act 1987 (NSW). There is no need to set out those sections.
2. One of the peculiarities of Part 4C is that it is, in effect, a self-contained code of limited application, appearing in a statute to which, otherwise, it bears little relationship. Accordingly, the familiar task of construing statutory provisions in the context of the statute as a whole means, in this case, that the contested provisions of Part 4C should be considered by reference to that Part as a whole, rather than to the EPA Act as a whole.
3. It is clear that the provisions of a statute must be interpreted in context, and that "context" includes such things as the existing state of the law and the mischief that the statute was intended to cure [12] .
4. Although extrinsic materials may assist in identifying the mischief that a statute was intended to overcome or the objects that it was intended to achieve, it remains always the position that the court's task is to construe the language of the statute, not the language used in the second reading speech or in some explanatory memorandum. So much appears from Saaed v Minister for Immigration and Citizenship [13] . The court there observed that the process of construction of a statute requires it to discern the intention manifested by the legislature, and that statements of legislative intention in extrinsic materials "cannot overcome the need to carefully consider the words of the statute to ascertain its meaning" [14] .
5. The plurality reasons in CIC Insurance referred [15] with approval to an observation of McHugh JA in Isherwood v Butler Pollnow Pty Ltd [16] . McHugh JA, with whom Glass JA agreed, said [17] that if one reads the apparently plain words of a statute in the light of the mischief that it was designed to overcome and the objects that it sought to achieve, those plain words may wear a very different appearance.
6. I do not think it is necessary, for the resolution of this appeal, to say anything more about the principles guiding the approach to statutory construction.

"Action"

1. It is obvious that the operation of s 109ZK(1) should not be constrained by reference to the pleading or elements of the cause of action that is advanced. As Mr Bambagiotti submitted, it is capable of covering causes of action founded on contract and on tort, and causes of action litigated (for want of a better word) in forums other than courts: for example, in this State, the New South Wales Civil and Administrative Tribunal; its equivalents in other states; and in arbitrations. That is however not to the point. To say that the concept of a "building action" should not be confined to particular causes of actions pleaded in particular ways says nothing about the proper construction of the statutory definition of that expression.
2. An "action" (whether an action at law or otherwise) may be said to arise from, and to concern, so many things or states of affairs as are necessary to exist for the action to exist. Applied to a legal proceeding (one of the kinds of "action" of the kind clearly intended to be caught by the definition of "building action" in s 109ZI of the EPA Act), it may be said that the action will arise from everything that must exist before there can be any complete and maintainable cause of action.
3. The action brought by Allianz against the indemnifiers was based on the indemnifiers' failure to pay on demand the amount that Allianz had expended pursuant to the policy. I am prepared to assume that, as Meagher JA explains at [16], that action may be characterised as an action for damages for breach of the promise to indemnify.
4. The liability that Allianz sought to have made good by the indemnifiers was one arising out of, and conditioned by, the relevant provisions of the policy. First of all, the claimant (the Owners Corporation) must have suffered loss or damage in respect of residential building work undertaken by the builder. Next, that loss or damage must have arisen from breach of a statutory warranty. Next, and leaving aside the first alternative (non-rectification), the Owners Corporation must have been unable to recover compensation from the builder because of its insolvency, death or disappearance. Each of those conditions had to be satisfied before Allianz became liable to pay any amount to or on behalf of the Owners Corporation; and each of them was.
5. Neither Allianz nor the indemnifiers were parties to the building contract. I accept that at least some of the indemnifiers were directors of or shareholders in the builder. I accept, further, that there was a clear factual connection between the relevant contracts: the building contract, the insurance policy and the deeds of indemnity.

"Building action"

1. The context within which the definition of "building action" should be construed is Part 4C of the EPA Act as it was introduced in 1 July 1998. That context included s 109ZJ. I do not think that the subsequent repeal of that section has any impact on the construction of the definition of "building action". It cannot be supposed that the legislature, simply by repealing s 109ZJ, intended to affect, in some undisclosed way, the construction or legal effect of those sections of Part 4C that continued in force.
2. Looking at the language of Part 4C when it was introduced, its evident purpose was to combat the mischiefs perceived to arise from the then state of the law, including specifically: 1. that a plaintiff in a "building action" could select a defendant or defendants with the deepest pockets, and seek to recover the whole of its damages from them, notwithstanding that their responsibility for those defects might have been very limited; and 2. the problems identified that were perceived to have arisen from the decision in Bryan [18] .
3. The legal effect of the words in question - the linking words "arising out of or concerning" - cannot be stated with precision or in any general way. They are, to borrow the language of the majority in Independent Commission Against Corruption v Cunneen [19] , words "of indefinite connotation"; they "are especially susceptible to context"; and thus they "frequently do mean one thing in one legislative context and something quite different in another".
4. It may be accepted that the linking words form part of a statutory definition. It may also be accepted that, as a general approach to construction, the words of a statutory definition should be given their natural and ordinary meaning, and then read into the substantive provisions of the statute so that those substantive provisions may be construed. This general statement of principle necessarily assumes that the words have a clear, natural and ordinary meaning. But in this case the linking words do not have a fixed and precise meaning, capable of universal application regardless of context.
5. Section 109ZJ is concerned with apportionment of liability for "damages in a building action or subdivision action". I leave aside, in what follows, further references to "subdivision action". Where damages in a building action are assessed, the court is required to determine and give judgment against each "contributing party" for what the court thinks to be its proportionate responsibility for the total amount of damages. A contributing party has no further liability, nor can it be required to contribute to another contributing party's damages or to indemnify any other contributing party.

Other issues

1. As the primary judge pointed out [25] , the Explanatory Note for the Environmental Planning and Assessment Amendment Bill 1997 confirms that the objects sought to be addressed included those that I have identified. I do not think that his Honour erred at all, let alone erred in any relevant way, by having regard to the provisions of that Explanatory Note.
2. Nor do I think, in any event, that the primary judge constrained his construction of the definition of "building action" in the way that Mr Bambagiotti submitted his Honour had done. When one reads the relevant paragraph of his Honour's reasons [26] , it is quite clear that his Honour relied upon the Explanatory Note for the purpose of identifying the mischief that Part 4C was intended to address. That was permissible. His Honour said no more than that the explanation there given confirmed that s 109ZK(1) was "not intended to cover causes of action of the type in the current proceedings". That was a conclusion that his Honour had reached in any event [27] ; and his Honour regarded the Explanatory Note as confirmatory of that conclusion.
3. It is correct to note that the primary judge stated at [64], [65]: There is nothing in the text of the relevant statutory provisions or the context of the Act which would suggest the limitation of the current cause of action propounded by the defendants. It is submitted by Counsel for the Defendants that such a construction would leave a person in the position of the defendants with a liability where they were unable to seek contribution from the party causing the defective building work. This may be correct but the mischief the legislation was aimed to meet was the indeterminate liability of building professionals and related designers and certifiers.
4. His Honour at [65] was dealing with a submission that the legislation, on his preferred construction, left the indemnifiers in the position that he identified. This, his Honour said, was consistent with the purpose of Part 4C. If his Honour were correct in identifying the purpose of Part 4C, and construing the words "arising out of or concerning defective building work" accordingly, there was no error in this paragraph.
5. In the course of submissions, Counsel referred to the decision of Bongiorno J in Australian Rail Track Corporation Ltd v Leighton Contractors Pty Ltd [28] . The short facts of that case were as follows. Leighton was constructing an overpass across the Geelong-Melbourne Railway. A beam collapsed and blocked the tracks. The plaintiffs, all users of the tracks, made claims against Leighton for the recovery of damages that they said that they had suffered by the interruption to their businesses.

Conclusion on the principal ground

1. Where an action is brought against someone who did not perform defective building work by a plaintiff who does not claim damages for defective building work, s 109ZK has no application.
2. In my view, the primary judge did not err in concluding that, properly construed, the legislation does not apply to the action brought by Allianz against the indemnifiers.

"Despite anything to the contrary…"

1. Finally, I turn to Mr Bambagiotti's reliance on the introductory words to s 109ZK(1), and the suggested failure of the primary judge to pay sufficient attention to those words. I think it is fair to say that in the course of his oral submissions, Mr Bambagiotti accepted that if the question of construction were resolved against them, the indemnifiers, they could not succeed on this ground alone.
2. In my view, those words do nothing more than make it clear that the provisions of s 109ZK are, as it were, pre-eminent or paramount. The Court of Appeal of Victoria reached a similar conclusion, in respect of a similar legislative scheme, in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [33] . The provision that their Honours considered was s 134 of the Building Act. That section read: Limitation on time when building action may be brought Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, a building action cannot be brought more than 10 years after the date of issue of the occupancy permit in respect of the building work (whether or not the occupancy permit is subsequently cancelled or varied) or, if an occupancy permit is not issued, the date of issue under Part 4 of the certificate of final inspection of the building work.
3. The Court of Appeal said [34] that the introductory words mean that s 134 operates despite the various different periods of limitation arising either under the Limitation of Actions Act 1958 (Vic) or under any other statute. In my respectful view, the same approach should be taken to the introductory words to s 109ZK(1) of the EPA Act.

Conclusion and proposed orders

1. For those reasons, and in addition for the reasons given by Meagher JA (with which, in substance, I agree), I propose that the appeal be dismissed with costs.

Endnotes

1. See s 92 of the HB Act.
2. At [53].
3. At [54].
4. At [55].
5. At [58].
6. Ground 2.
7. At [61].
8. At [62] to [65].
9. At [70] (below).
10. At [66].
11. (1995) 182 CLR 609.
12. See, by way of example only, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
13. (2010) 241 CLR 252.
14. At [31].
15. At 408.
16. (1986) 6 NSWLR 363.
17. At 388.
18. See at [48] above.
19. (2015) 256 CLR 1 at [59] (French CJ, Hayne, Kiefel and Nettle JJ).
20. See, for example, Tabet v Gett (2010) 240 CLR 537 at [112] (Kiefel J); I&L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109 at [56] (Gaudron, Gummow and Hayne JJ); Henville v Walker (2001) 206 CLR 459 at [99] (McHugh J); see also, in a similar statutory context, Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2014] VSCA 165 at [108] (Redlich, Whelan and Santamaria JJA).
21. See at [46] above.
22. At [52].
23. At [54] of his Honour's reasons.
24. At [92].
25. At [33], [34].
26. At [66].
27. At [64].
28. [2003] VSC 189.
29. At [15].
30. At [21].
31. At [22].
32. Ibid.
33. [2014] VSCA 165.
34. At [115].

Amendments 24 October 2017 - Coverpage: paragraph references inserted [9] "which" inserted in "the mischief to which s 109ZK" [10] duplicate "does not" deleted [68] "Appeals" deleted from "New South Wales Civil and Administrative Appeals Tribunal" [76] "or" inserted in "arising out of or concerning" 27 October 2017 - Coverpage: barrister name corrected 06 August 2018 - 6 August 2018 [50] final sentence changed to "Nothing turns on this" [75] "25 October 2011" changed to "1 July 1998" [95] cross-reference corrected in footnote 24 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2018