First Pacific Advisors LLC v Boart Longyear Ltd

Requirements under s 411 of the Act

1. Mr Crutchfield rightly submits that s 411(1) of the Act confers a discretion on the Court to make orders to convene a scheme meeting if the specified requirements are satisfied, namely that a compromise or arrangement is proposed between a Part 5.1 body and its members (or any class of them); application for the order is made in a summary way by the body; ASIC has been given 14 days' notice of the hearing of the application or such lesser period as the Court or ASIC permits; and the Court is satisfied that ASIC has had a reasonable opportunity to examine the terms of the proposed compromise or arrangement to which the application relates and a draft explanatory statement relating to the proposed compromise or arrangement; and make submissions to the Court in relation to the proposed compromise or arrangement and the draft explanatory statement. Mr Crutchfield submits, and I accept, that a proposed merger by stapling of a corporate entity and a registered managed investment scheme may be effected by a combination of scheme of arrangement as to the corporate entity and an application for judicial advice on the other as to the managed investment scheme: Re Mirvac Limited (1999) 32 ACSR 107; Re DUET Management Company 1 Limited (2013) 95 ACSR 34. I accept that the proposed modification of the rights of WOTSO shareholders pursuant to the scheme is an 'arrangement' proposed between WOTSO and its shareholders for the purposes of the section. WOTSO is a company registered under the Act and therefore a Part 5.1 body and that the requirement that a compromise or arrangement be proposed between a Part 5.1 body and its members has been met. The requirements for notification to ASIC have been satisfied and I have referred to its position above. The relevant requirements of the Rules are satisfied.
2. Turning now to the matters relevant to the exercise of the Court's discretion, in Re CSR Ltd (2010) 183 FCR 358; [2012] FCAFC 34 at [58], often cited in this context, French J observed that: "… It is however important to bear in mind that, by granting leave to convene the meeting, the court does not give its imprimatur to the proposed scheme. If the arrangement is one that seems fit for consideration by the meeting of members or creditors and is a commercial proposition likely to gain the court's approval if passed by the necessary majorities, then leave should be given: Re ACM Gold Ltd (1992) 34 FCR 530 ; 107 ALR 359; 7 ACSR 231; 10 ACLC 573 (O'Loughlin J). The court is not required to give close consideration to the effects of the scheme upon individual members of the classes of members or creditors affected. So to do would be to "introduce burdensome and to a large extent ineffectual consideration at this interlocutory stage": Re Jax Marine Pty Ltd [1967] 1 NSWR 145 at 148 (Street J). The court at the stage of ordering a meeting to approve a scheme does not ordinarily go very far into the question of whether the arrangement is one which warrants the approval of the court … That question is to be answered when the scheme returns to the court for final approval. That is not to exclude the possibility that a scheme may appear on its face so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further."
3. In Re Associated Advisory Practices Limited [2013] FCA 761 at [22], Farrell J in turn summarised the matters relevant to the Court's discretion to convene a scheme meeting as follows: "The court will not ordinarily convene a meeting of members to consider a scheme of arrangement unless the court is satisfied that the scheme is of such a nature and cast in such terms that, if it receives the statutory majority at the meeting of members, the court would be likely to approve the scheme on the hearing of an unopposed application: Re Central Pacific Minerals NL [2002] FCA 239 at [8]; Re CSR Ltd (2010) 183 FCR 358 at [12]; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 504. By granting leave to convene the meeting, the court does not give its imprimatur to the proposed scheme or foreshadow its approval at the second court hearing for the purposes of s 411(4)(b): Re Foundation Healthcare Ltd (2002) 42 ACSR 252 at [36]; Australian Securities Commission v Marlborough Gold Mines Ltd at 504-505. The question for the court is whether it is reasonable to suppose that sensible business people might consider the arrangement proposed as being beneficial to members: In Re Alabama, New Orleans, Texas and Pacific Junction Railway Co [1891] 1 Ch 213 at 243; Re CSR Ltd at [80]. The court does not need to be satisfied that no better scheme could have been proposed: Re Foundation Healthcare Ltd at [44]. Ultimately, the question is for the members themselves: see FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72."
4. Mr Crutchfield also refers to Beach J's summary of the applicable principles in Re Amcor Ltd [2019] FCA 346 at [47] as follows: "My function on an application to order the convening of a meeting is supervisory. At this stage I should generally confine myself to ensuring that certain procedural and substantive requirements have been met including dealing with adequate disclosure, with limited consideration of issues of fairness. But having said that, it is appropriate to consider the merits or fairness of a proposed scheme at the convening hearing if the issue is such as would unquestionably lead to a refusal to approve a proposed scheme at the approval hearing, that is, the proposed scheme appears now to be on its face "so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further" (Re Foundation Healthcare Ltd (2002) 42 ACSR 252 at [44] per French J)."
5. I accept that the scheme is fit for consideration by WOTSO shareholders at the proposed meeting, in the relevant sense, and I note that all of WOTSO's directors recommend that shareholders vote in favour of the scheme and intend to vote their WOTSO shares in favour of the scheme; and the independent expert report has expressed the view that the scheme is not fair but reasonable and in the best interests of WOTSO shareholders. There is no indication of any element of unfairness in the terms of the scheme that would be likely to preclude the approval of the scheme if it came before the Court for approval. Mr Crutchfield also draws attention to s 412(1) of the Act and Sch 8 of the Regulations which set out the disclosure requirements for the explanatory statement which must be sent to members. The scheme booklet is in conventional form, has been verified in the usual way and has been made available for ASIC's review and the independent experts' report contains a detailed evaluation of the scheme. There is no reason to think that the members will not be properly informed as to the nature of the scheme before the scheme meeting.
6. If the Court makes the orders sought convening the scheme meeting, WOTSO proposes to despatch a copy of the scheme booklet (which, as noted above, includes the notice of scheme meeting and notice of general meeting) electronically to those shareholders who have nominated an electronic address for the purposes of receiving electronic copies of shareholder communications and in hard copy to all other shareholders. It is then proposed that the scheme meeting (and the general meeting) will be held as physical meetings on 29 January 2021, although WOTSO will approach the Court for directions if there are adverse developments as to the ability to hold a physical meeting.

Several other matters

1. Mr Crutchfield also addresses several features of the proposed scheme which are commonly addressed in applications of this kind. First, he addresses the question of performance risk. He notes that BFSL, Planloc and Pelorus are required to undertake various steps in order to give effect to the scheme, but are not parties to the scheme and cannot be directly bound by it, and recognises the Courts' concern with performance risk as regards the obligations to be performed by a non-scheme party: Re Coles Group Ltd (2007) 25 ACLC 1380 at 1386; Re AXA Asia Pacific Holdings Ltd [2011] VSC 4 at [21]-[25]; Re Wellcom Group Limited [2019] FCA 1655 at [61] - [64]; Re Amcor Ltd above at [53]. Mr Crutchfield submits, and I accept, that the performance risk arising from the obligations of BFSL, Planloc and Pelorus in the context of the scheme has been addressed by the structure of the scheme and the Deed Poll executed by those parties in favour of WOTSO shareholders by which they are bound to perform the roles assigned to them under the scheme, which can be directly enforced against them.
2. Mr Crutchfield also addresses exclusivity arrangements in respect of the scheme. Clause 9 of the Implementation Deed contains exclusivity provisions, including 'no shop', 'no due diligence' and 'no talk' provisions, which apply during the 'Exclusivity Period', as defined. The 'no talk' and 'no due diligence' provisions prevent WOTSO from participating in any discussions which may reasonably be expected to lead to a 'Competing Transaction', and are subject to a fiduciary carve out. The exclusivity provisions are summarised in section 7.2(a) of the scheme booklet.
3. In respect of such provisions, the Court is concerned to ensure that any exclusivity period should be for no more than a reasonable period capable of precise ascertainment; an exclusivity clause directed at dealing with an unsolicited alternative merger proposal should be subject to a fiduciary carve out; and the provisions must be sufficiently disclosed in the explanatory statement sent to shareholders: Re Arthur Yates & Co Ltd (2001) 36 ACSR 758 at 759-760; Re Andean Resources Ltd [2010] FCA 1190 at [20]; Re Healthscope Ltd [2010] VSC 367 at [19] - [22]; Re TPG Telecom Ltd [2020] NSWSC 772 at [22]. Mr Crutchfield submits, and I accept, that these provisions are for no more than a reasonable period which is capable of precise ascertainment; are framed (other than in respect of the 'no shop' clause) so that they are subject to an overriding obligation not to breach the directors' fiduciary duties or be otherwise unlawful; and are given adequate prominence in the explanatory statement sent to shareholders, and meet the requirements of the case law.
4. Mr Crutchfield addresses the treatment of Ineligible Scheme Participants (as defined) under the scheme, including their deemed sale warranties, as set out at clause 4.5 of the scheme and in section 7.1(j) of the scheme booklet. He submits, and I accept, that the proposed treatment of Ineligible Scheme Participants under the scheme accords with common practice adopted in schemes of arrangement where shares are issued, and the cases have accepted that the issue of shares to a sale agent under a scheme of arrangement of scrip that would otherwise have been issued to ineligible foreign shareholders does not require those shareholders to meet together as a separate class for the purposes of considering the proposed scheme of arrangement: Re CSR Limited (2003) 45 ACSR 34 at 36; Re Orica Ltd [2010] VSC 231 at [14]; Re Amcor Ltd above at [42] - [44]. Clause 7.4 of the scheme also provides that each Ineligible Scheme Participant is taken to have warranted to the Scheme Sale Nominee (as defined) that all of their Scheme Shares (as defined) that are transferred to the Scheme Sale Nominee will, at the time of transfer, be fully paid and free from all security interests and interests of third parties of any kind and from any restrictions on transfer of any kind, that it has full power and capacity to sell and to transfer those shares together with any rights and entitlements attaching to such shares to the Scheme Sale Nominee under the scheme, and that it has no right to be issued any additional WOTSO shares, options, convertible notes or other WOTSO securities. I accept that warranty is in a common form, and such clauses have been held to be acceptable as long as the warranty is sufficiently disclosed in the explanatory statement to shareholders: Re APN News & Media Ltd (2007) 62 ACSR 400 at [57]-[63]; Re Sino Gold Mining Ltd (2009) 74 ACSR 647 at [29]-[31]; Re Biosceptre International Limited [2013] FCA 1429 at [22], Re Wellcom Group Limited above at [75].
5. Mr Crutchfield also submits that the purpose of the scheme is not to avoid Chapter 6 of the Act. Subsection 411(17) of the Act provides that the Court must not approve a scheme unless satisfied it is not proposed for the purpose of enabling avoidance of the takeovers provisions in Chapter 6 of the Act or ASIC provides a statement that it has no objection. This matter is properly deferred for consideration at the second Court hearing, where there are presently no indication of any proscribed purpose and there is a real prospect that ASIC will give a statement under s 411(17)(b) at that hearing.
6. Mr Crutchfield also draws the Court's attention to certain matters arising from the Plaintiffs' consultation with ASIC concerning disclosure requirements and class issues. He notes that ASIC sought submissions from the Plaintiffs' solicitors as to why disclosure documents were not required under Ch 6D of the Act for the distribution of WOTSO shares and Planloc shares to BWR unitholders and to Pelorus, and, under Ch 7 of the Act, for the distribution of BWR units to Pelorus, including as to any case law supporting the proposition that the exemptions from disclosure under s 708(17) of the Act (in respect of Ch 6D) and under ASIC Corporations (Compromises or Arrangements) Instrument 2015/358 (in respect of Ch 7) would apply. Mr Crutchfield refers to the relevant provisions and to an application for relief which was then lodged on behalf of WOTSO, Planloc and Pelorus, which took the position that the offer of Planloc shares to WOTSO shareholders will be made in reliance on the scheme exception in s 708(17) of the Corporations Act (as being an offer made under a s 411 arrangement); the offer of BWR units to WOTSO shareholders will be made in reliance on the scheme exception in ASIC Corporations (Compromises or Arrangements) Instrument 2015/358; and the offers of WOTSO shares and Planloc shares to BWR unitholders are offers made under the scheme sufficient to attract the scheme exception in s 708(17) of the Act, but WOTSO will lodge with ASIC, and provide to BWR unitholders, disclosure documents to accompany the offer of WOTSO shares (by WOTSO) and Planloc shares (by Pelorus), which would effectively be the same document.
7. WOTSO then sought relief ("Share Split On-Sale Relief") from various requirements in Ch 6D with respect to the issue of the disclosure documents and sought relief from s 707(3) with respect to the on-sale of Planloc shares, where the Planloc share split and issue of additional shares to Pelorus would take place without a disclosure document lodged under Chapter 6D of the Act. Further correspondence then took place between ASIC and the Plaintiffs' solicitors and, on 17 December 2020, ASIC advised that it did not consider the Share Split On-Sale Relief was required.
8. Mr Crutchfield notes that no question as to the operation of the scheme exception in s 708(17) arises where WOTSO and Pelorus will lodge disclosure documents with ASIC and provide them to BWR unitholders in respect of the issue of WOTSO shares and transfer of Planloc shares to them, but nonetheless makes submissions as to that question. I have noted these submissions, but it is generally preferable for Courts not to address questions which do not arise and I will not further address the scope of that exception where it is not necessary to do so.
9. ASIC also raised the question with WOTSO whether interests associated with two substantial shareholders in WOTSO should vote in a single class of WOTSO shareholders and the Plaintiffs' solicitors made submissions to ASIC as to that question. Mr Crutchfield notes that the test for identifying a class for the purpose of a scheme of arrangement is whether the rights of the persons within the proposed class are not so dissimilar as to make it impossible for them to consult together with a view to their common interest, and refers to the consideration of that test by the Court of Appeal in First Pacific Advisors LLC v Boart Longyear Ltd [2017] NSWCA 116 at [80], which identified relevant matters as (1) what are the rights which existing creditors or members have against the company and to what extent are they different; (2) to what extent are those rights differently affected by the scheme; and (3) does the difference in rights or different treatment of rights make it impossible for the creditors or members in question to consider the scheme as one class. Mr Crutchfield also referred to the further consideration of that question by Beach J in Re Healthscope Ltd above.
10. Mr Crutchfield recognises a potential commercial implication of the scheme for those two substantial shareholders, that their respective interests after the implementation of the scheme could permit them to block a special resolution of the stapled entity should the scheme be approved. Nonetheless, the scheme does not affect the rights of those two substantial shareholders, as WOTSO shareholders, in a manner which is different to its effect on the rights of other WOTSO shareholders, so as to render it impossible (in the relevant sense) for them to consult together with the other WOTSO shareholders with a view to their common interest. I accept Mr Crutchfield's submission that all WOTSO shareholders should vote on the scheme as a single class, and the votes of interests associated with the two substantial shareholders should be tagged, so that any question regarding their influence may be addressed at any second Court hearing. I note that ASIC did not oppose that approach.
11. A further question was raised by ASIC about whether or not Pelorus and entities associated with BFSL should also be permitted to vote in a single class of WOTSO shareholders. Pelorus currently holds approximately 8% of WOTSO's shares and WOTSO submitted that neither Planloc nor its related entities, including Pelorus, should be placed into a separate class for the purpose of voting on the scheme, where the scheme provides for the 1:1:1 stapling of the three entities, and does not treat the rights of any particular WOTSO shareholder differently. WOTSO proposed, and I accept, that the votes of Planloc and its related entities be tagged, so that any issues can be appropriately addressed at the second Court hearing. BFSL's parent, BlackWall Limited, currently holds approximately 13% of the shares in WOTSO and WOTSO submits that BFSL and its related entities are in a similar position to Planloc in this regard. I accept that this matter does not require that BFSL and its related entities be placed in a separate class with respect to the scheme and it is sufficient if the votes of BFSL and its related entities are tagged so that any issue arising from their influence may be addressed at the second court hearing.
12. Mr Crutchfield acknowledges that BFSL also will receive an extrinsic commercial benefit upon the scheme becoming effective, in the form of a Management Agreement addressed at sections 3.13 and 7.4 of the scheme booklet, by which it will be appointed as investment manager to the stapled group, and will provide investment management and other services in exchange for certain fees. Mr Crutchfield draws attention to the observations of Robson J in Re Skilled Group Ltd (No 1) (2015) 113 ACSR 525 at [72]ff, consistent with the case law to which I have referred above, that divergent commercial interests extrinsic to share membership are ordinarily not a factor that should differentiate classes, unless the relevant shareholders' rights are so dissimilar that they cannot sensibly consult together with the other shareholders. I accept that BFSL's commercial interest as to the Management Agreement is not such as to make it impossible for BFSL and its related entities to consult with the other shareholders, and BFSL's commercial interests under that Agreement are disclosed in the proposed scheme booklet. That matter is also properly addressed by tagging the shares of BFSL and its related entities, and any issues concerning their votes may also be addressed at the second Court hearing. I also note that ASIC does not contest WOTSO's proposed approach of tagging the votes of Planloc and related entities and BFSL and related entities at the scheme meeting.
13. Mr Crutchfield also points out that, by reg 5.1.01 and Sch 8, cl 8303 of the Corporations Regulations, a report by an independent expert in respect of a scheme is required if (inter alia) the parties have a common director, which is the case here, and the scheme booklet here contains an independent expert's report. As I noted above, RSM's report concludes that the scheme is not fair but reasonable and is in the best interests of shareholders. Mr Crutchfield draws attention to ASIC Regulatory Guide 111, Content of expert reports, which outlines the distinction between the concepts of 'fair' and 'reasonable' in this context. In Re CIC Australia Limited [2015] NSWSC 557, Brereton J observed (at [8]-[9]) that courts have made orders convening scheme meetings and approving schemes when an independent expert has concluded that a scheme was not fair but reasonable and (at [16]-[17]) that, if shareholders are properly informed of the independent expert's opinion and its reasons, then it is a matter for them to decide whether the proposal should be accepted. I accept that it was reasonably open to RSM to take the view they express as to whether the proposal was reasonable (as distinct from fair) and in the best interests of WOTSO shareholders, and that WOTSO shareholders will be properly appraised of that view and the reasons for it in the scheme booklet, and that matter would prevent approval of the scheme at the second Court hearing or provide reason for the Court not to convene the scheme meeting.

Approval of the explanatory statement by the Court and orders

1. If the Court has made an order convening a meeting or meetings of members or creditors, then the Court may approve the explanatory statement under s 411(1) of the Act. Although different Courts have adopted different approaches to this matter, this Court has previously been prepared to make such an order in a proper case and I see no reason not to do so here. For these reasons, I made the orders sought by WOTSO at the first Court hearing on 18 December 2020.

The BWR trust scheme

1. In proceedings 2020/349305, BFSL as trustee for BWR seeks advice under s 63 of the Trustee Act that it is justified in convening a meeting of unitholders to consider and, if thought fit, vote on a proposed special resolution to repeal BWR's existing constitution and replace it with a replacement constitution; is justified in distributing a notice of meeting and explanatory memorandum to unitholders; and, subject to unitholders passing the relevant resolutions, would be justified in proceeding on the basis that repealing BWR's constitution and replacing it with the replacement constitution would be within the powers conferred by constitution and s 601GC of the Corporations Act.
2. The application is again supported by an affidavit of Mr Rogers dated 9 December 2020 which refers to the proposed stapling of securities in BWR, WOTSO and Planloc to create a stapled group. Mr Rogers addresses details of the proposed stapling arrangement, which overlap with the arrangements to which I have referred above in respect of WOTSO, and outlines the scope of the proposed amendments to BWR's constitution contained in the replacement constitution, including provisions which allow the proposed stapling arrangement to be implemented. Mr Rogers also there refers to the procedural steps and timetable for the trust scheme. By a further affidavit dated 17 December 2020, Mr Rogers relies on his evidence led in the WOTSO proceedings in respect of communications with ASIC.
3. By an affidavit dated 17 December 2020, Mr Glew refers to the nature of BWR, as an open-ended unit trust that invests in income producing real estate and real estate joint ventures, to the amendments to be made in BWR's replacement constitution and to the terms of the explanatory statement and proposed notice of meeting.
4. In submissions, Mr Crutchfield again addresses the steps involved in the stapling proposal, which I have addressed above in respect of the WOTSO scheme. Mr Crutchfield also addresses the amendments to be made in BWR's proposed replacement constitution, which include provisions to enable BFSL to implement the stapling proposal; provisions dealing with the re-allocation of capital across the stapled entities; provisions that allow the responsible entity to carry out certain types of reorganisation proposals in the future, including consolidating or dividing BWR units, stapling and unstapling BWR units, and, undertaking various other strategies to restructure BWR such as exchanging BWR units for interests in another trust; provisions to allow the sale facility for foreign Ineligible BWR Unitholders that are not able to participate in the stapling proposal; make other amendments for consistency with the WOTSO and Planloc constitutions; and change the fees payable to BFSL as responsible entity of BWR. Mr Crutchfield also addresses the draft notice of meeting and explanatory memorandum to be sent to BWR unitholders, which will annex BWR's replacement constitution. Mr Crutchfield also refers to Mr Rogers' evidence that the notice of meeting for the BWR unitholder meeting and the scheme booklet, to be incorporated by reference, will stand as a prospectus for the purpose of the disclosure requirements in Ch 6 of the Corporations Act, to be lodged with ASIC and delivered to BWR unitholders, in respect of both the transfer of Planloc shares to BWR unitholders and the issue of WOTSO shares to BWR unitholders, and the manner in which the meeting of BWR unitholders will be conducted.
5. Mr Crutchfield submits that, as is now well established, the responsible entity of a registered managed investment scheme may seek judicial advice in a trust scheme, typically in two stages: Re Mirvac Limited above; Re Sydney Airport Holdings Ltd [2013] NSWSC 1665; Re Investa Listed Funds Management Ltd [2018] NSWSC 1766. In the first stage, the Court may provide judicial advice at the first Court hearing that the responsible entity is justified in propounding the resolutions to implement the trust scheme and proceeding on the basis that the proposed constitutional amendments to the registered managed investment scheme would be within the powers of alteration conferred by the constitution and s 601GC of the Corporations Act. That judicial advice and the right of any unitholder to appear at the second Court hearing and object will then be disclosed in the explanatory statement sent to unitholders for the meeting to consider the resolutions to implement the trust scheme. If unitholders vote in favour of the proposal, the responsible entity can then seek judicial advice at a second Court hearing that, having regard to the result of voting at the scheme meeting and any other relevant circumstances, it is justified in implementing the scheme: Re Mirvac Limited above at [47].
6. Mr Crutchfield also points out that BWR's constitution provides that, subject to the Corporations Act, it may be modified or repealed or replaced by (inter alia) special resolution of the BWR unitholders, being 75 per cent of the votes cast by unitholders entitled to vote on the resolution (clause 31 and Schedule 1 (Dictionary)). Section 601GC(1)(a) of the Corporations Act similarly provides that the constitution of a registered scheme may be modified or repealed and replaced with a new constitution by special resolution of the members of the scheme, being 75% of the votes cast by members entitled to vote on the resolution. Under s 601GC(2) of the Act, the modification or repeal and replacement of the constitution does not take effect until it is lodged with ASIC by the responsible entity. Mr Crutchfield also submits that the notice of meeting for the BWR unitholder meeting here provides appropriate disclosure to enable BWR unitholders to understand the stapling proposal and form a view on its merits, including by reference to the information contained in the scheme booklet, in advance of the unitholder meeting, and that there is no other aspect of the stapling proposal which might otherwise cause the Court to refrain from providing judicial advice to the BFSL in the form proposed.
7. As I noted above, the BWR constitution contains amending provisions and the constitution of a managed investment scheme may also be altered by a special resolution of the members of the scheme under s 601GC(1)(a) of the Act. The power of alteration under s 601GC(1)(a) of the Act is very wide and there is no implied limitation on the Court's power to give advice pursuant to s 63 of the Trustee Act, nor on the discretionary factors the Court may take into account: Macedonian Orthodox Church St Petka Inc v His Eminence Petar (2008) 237 CLR 66 at [55]-[59]; Re Mirvac Limited above. I am satisfied that BFSL, as responsible entity of the BWR, would be justified in proceeding on the basis that the making of the proposed amendments to the BWR constitution in connection with the trust scheme, following the requisite approval by unitholders, would be within its powers, including the powers of alteration conferred by that constitution and s 601GC of the Act.
8. For these reasons, I made the orders sought by BFSL as responsible entity of the BWR at the first Court hearing on 18 December 2020.

Amendments 02 February 2021 - Changed date of decision to 22 January 2021. 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: 02 February 2021