J.K. Williams Staff Pty Limited v Sydney Water Corporation

The application to vary the interest on costs

1. Williams has now applied for the Court to make an order under s 101(5) of the Civil Procedure Act that the dates from which interest is to be calculated are to be other than the date the order for costs was made. The other dates sought by Williams are the dates on which Williams paid each of the costs that comprised the amount of costs which Sydney Water was ordered to pay.

Sydney Water's argument of no power to vary the interest payable

1. Sydney Water contended that Williams' application under s 101(5) for the Court to vary the dates for the purposes of calculating interest from the date the order for costs was made is out of time. Sydney Water's argument started with the well settled principle that "once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance…beyond recall by that court": Bailey v Marinoff (1971) 125 CLR 529 at 530 and see D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34].
2. Sydney Water contended that the only relevant statutory provision allowing this Court to recall and revise the Court's order for the payment of costs and the statutory determination that interest is payable on an amount payable under that order for the payment of costs (s 101(4)), to be calculated at the prescribed rate as from the date the order was made (s 101(5)), is UCPR r 36.16(3).
3. The general power to set aside a judgment or order in UCPR r 36.15 is inapplicable in the circumstances of this case, as the order for the payment of costs was not made irregularly, illegally or against good faith. The specific power to correct a judgment or order under UCPR r 36.17, the 'slip rule', is inapplicable in the circumstances of this case, as there is no clerical mistake or error arising from an accidental slip or omission in the order for the payment of costs.
4. This leaves the power to set aside or vary a judgment or order in UCPR r 36.16. This can be done before the entry of the judgment or order (r 36.16(1)) or after the entry of the judgment or order (r 36.16(2) and (3)). To be before the entry of judgment or order, a notice of motion for the setting aside or variation of the judgment or order must be filed within 14 days after the judgment or order is entered (r 36.16(3A)). If this be done, the Court may determine the matter and, if appropriate, set aside or vary the judgment or order under r 36.16(1) as if the judgment or order had not been entered (r 36.16(3A)). In the present case, Williams did not file a notice of motion for the setting aside or variation of the order for the payment of costs within 14 days of the order being made and entered on 8 July 2021. Thus, the power of the Court in r 36.16(1) to set aside or vary the order before entry of the judgment or order is not available.
5. The power of the Court under r 36.16(2) to set aside or vary the order for the payment of costs after it has been entered is not available as none of the circumstances in paragraphs (a), (b) or (c) of r 36.16(2) are applicable.
6. This leaves the further power in r 36.16(3), which provides: "In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it - (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief."
7. Sydney Water submitted that the Court's order of 8 July 2021 fell within the exception in paragraph (a) of being an order that "determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief." In terms, the Court's order that Sydney Water pay Williams' costs determined Williams' claim for costs. But by operation of s 101(4) and (5) of the Civil Procedure Act, the making of that order for the payment of costs also determined Williams' claim for interest on the amount payable under the order for payment of costs. Hence, the exception in r 36.16(3) was engaged - the Court's order for the payment of costs determined not only the claim for the payment of costs, but also the claim for payment of interest on an amount payable under the order for the payment of costs. The Court therefore has no power under r 36.16(3) to set aside or vary either the Court's order for the payment of costs or the dependent statutory determination for the payment of interest on the amount payable under the order for the payment of costs.
8. Sydney Water submitted that this construction of UCPR r 36.16(3) and s 101(4) and (5) of the Civil Procedure Act was confirmed by Basten JA's judgment in Hutley v Cosco (No 2) [2021] NSWCA 335 at [28], [30]. Sydney Water submitted that the contrary decision of White JA was wrong and should not be followed. Macfarlan JA did not decide this question. Basten JA's construction of the current version of s 101(4) and (5) of the Civil Procedure Act and application of that construction to UCPR r 36.16(3) is consistent with the approach taken by McColl JA in Zepinic v Chateau Construction (Australia) Ltd (No 2) [2013] NSWCA 227 at [82], [85] and [88] and by Handley JA, with whom Tobias JA and Macfarlan JA agreed, in Drummond & Rosen Pty Ltd v Barry Easey (No 2) [2009] NSWCA 331 at [49], notwithstanding that those decisions were considering the earlier version of s 101(4) and (5) of the Civil Procedure Act, which required the court to make an order for interest on costs rather than interest on costs automatically being payable unless the court orders otherwise.

Williams' argument of power to vary the interest payable

1. Williams contested that the Court did not have power now to make an order varying the date from which interest on costs is to be calculated from being the date the order for costs was made. Williams relied on the decision of White JA in Hutley v Cosco (No 2). Williams submitted firstly that the Court's order that Sydney Water pay Williams' costs did not determine Williams' claim for interest on costs. The word "it" at the end of the chapeau of r 36.16(3) refers to the judgment or order made by the court, which is the subject of the application for setting aside or variation. It is that judgment or order that must determine any claim for relief or determine any question arising on any claim for relief. In the present case, the order the Court made on 8 July 2021 was only an order for the payment of costs. The source of the power to make that order for costs was s 98 of the Civil Procedure Act. That order for costs did determine Williams' claim for costs but did not determine its claim for interest on costs. Interest on costs is determined under s 101 of the Civil Procedure Act.
2. Hence, Williams' application to vary the date from which interest is to be calculated is not an application to set aside or vary the Court's order made on 8 July 2021 for the payment of costs. The Court's order for the payment of costs will be unaffected whether the Court makes or refuses an order varying the date from which interest on an amount payable under the order for the payment of costs is to be calculated: see Hutley v Cosco (No 2) at [52] per White JA.
3. Williams secondly submitted that the application under s 101(5) of the Civil Procedure Act to vary the date from which interest on costs is to be calculated from being the date of the costs order to being any other date is a claim for interest on costs to be calculated from that varied date. That claim for relief was not determined by the Court when it made the order for payment of costs as the application under s 101(5) of the Civil Procedure Act to vary the date from which interest on costs is to be calculated had not been made at that time: at [57] per White JA.
4. Williams submitted that, either way, the Court's order for the payment of costs did not determine Williams' claim for interest generally or for variation of the date from which interest on costs is to be calculated particularly, so that the Court is not precluded by UCPR r 36.16(3) from determining Williams' application to vary the date from which interest on costs is to be calculated.

No power now to vary the interest payable

1. I find that the Court no longer has power to vary the date from which interest on the amount payable under the Court's order for costs is to be calculated. Williams' claim for the payment of interest on the amount payable under the Court's order that Sydney Water pay Williams' costs was determined upon the Court making that costs order on 8 July 2021. Williams' application to vary the date from which interest on costs is to be calculated was filed on 19 November 2021, well after the 14 day period for setting aside or varying a judgment or order was entered, allowed for by UCPR r 36.16(3).
2. The power of the Court to make an order under s 101(5) of the Civil Procedure Act varying the date from which interest on costs is to be calculated depends on whether the Court's order that Sydney Water pay Williams' costs determined not only the claim for costs but also the claim for interest on costs or any question arising on the claim for interest on costs. If the Court's order for the payment of costs did determine either the claim for interest on costs or a question concerning the claim for interest on costs, then the Court has no power under UCPR r 36.16(3) to set aside or vary the Court's order for the payment of costs. I find that this is the case.
3. It may be accepted that the source of the Court's power to make the order for the payment of costs was s 98 of the Civil Procedure Act. In terms, the Court's order only ordered the payment of costs and not interest on the amount payable under the order for the payment of costs. Moreover "costs" are defined in s 3(1) of the Civil Procedure Act to mean, in relation to proceedings, "costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration."
4. Since the amendments to s 101 of the Civil Procedure Act in 2015, which took effect from 24 November 2015, the Court no longer needs to make a positive order that interest be payable on an amount payable under an order for costs. Section 101(4) and (5) set a default position that interest on costs is payable, to be calculated in a prescribed manner and from the date of the costs order, unless the court otherwise orders. Subsection (4) provides that "interest is payable on an amount payable under an order for the payment of costs" unless the court orders otherwise. This reverses the position prior to 2015: before the amendments, a positive order of the court was required in order for interest on costs to be payable while after the amendments, a positive order of the court is required in order for interest on costs not to be payable.
5. Subsection (5) sets the default position as to how to calculate the interest that subsection (4) provides is payable on the amount payable under an order for the payment of costs. The interest on costs that is payable is to be calculated, firstly, at the prescribed rate in UCPR r 36.7 and, secondly, as from the date the order for the payment of costs was made, unless the court orders that any other rate or any other date should be used to calculate the interest. Again, this provision requires a positive order of the court setting another rate or another date to the rate and date set by the subsection in order to change the default position for the calculation of the interest on the amount payable under the order for the payment of costs.
6. Subsections (4) and (5) of s 101 of the Civil Procedure Act, therefore, operate to determine a claim for interest on costs - there is a statutory determination of a claim for interest on costs. There is a condition precedent to this statutory determination - the court must make an order for the payment of costs. But upon the court making an order for costs, s 101(4) of the Civil Procedure Act operates to determine that interest is payable on an amount payable under the order for costs and s 101(5) operates to determine that this interest is to be calculated at the prescribed rate and as from the date the order for costs was made.
7. The default operation of s 101(4) and (5) in these ways can only be varied by the court taking an affirmative step to order otherwise - to order that interest is not payable under an amount payable under an order for costs or at all, to order that the rate for the calculation of interest is to be a rate other than the prescribed rate, or to order that the date from which interest is to be calculated is to be a date other than the date the order for costs was made.
8. With this understanding of how s 101(4) and (5) of the Civil Procedure Act operate, it becomes evident that the Court's order that Sydney Water pay Williams' costs not only determined Williams' claim for costs (being one claim for relief) but also determined Williams' claim for interest on costs (being another claim for relief). The order for the payment of costs determined the claim for interest on costs because the making of the order for costs triggered the operation of s 101(4) and (5) of the Civil Procedure Act, which determined that interest is payable on the amount payable under the order for costs and how that interest is to be calculated, at the prescribed rate and as from the date the order for costs was made. No aspect of the claim for interest on costs was left undetermined by the operation s 101(4) and (5).
9. There was no need for the Court to take any affirmative step in relation to the claim for interest on costs, although it could have ordered otherwise under s 101(4) and (5), in order for the claim for interest on costs to be determined - the statutory provisions operated to determine the interest payable on the amount payable under the order for costs.
10. There is another way this interactive operation of the order for costs and the provisions of s 101(4) and (5) can be put, although to the same effect. One of the questions arising on the claim for interest on costs (being the relevant claim for relief) is whether an order for costs has been made - evidently interest can only be payable on an amount payable under an order for costs if such an order has been made. The making of an order for costs not only determines this question arising on the claim for interest on costs but also triggers the operation of s 101(4) and (5) of the Civil Procedure Act to determine the claim for interest on costs by providing that interest is payable on an amount payable under the order for costs and that interest is to be calculated at the prescribed rate and as from the date of the order for costs, unless the Court orders otherwise. Viewed this way too, the Court's order that Sydney Water pay Williams' costs determines "any question (whether of fact or law or both) arising on any claim for relief" (UCPR r 36.16(3)(a)).
11. What I have said so far deals with, and rejects, Williams' first argument that the Court's order that Sydney Water pay Williams' costs did not determine Williams' claim for interest on costs or any question arising on its claim for interest on costs.
12. Williams' second argument is unmeritorious. Williams' application for an order under s 101(5) of the Civil Procedure Act varying the date from which interest is to be calculated from the default date of the date the order for costs was made is not itself a "claim for relief" for the purposes of UCPR r 36.16(3). It may be accepted that a claim for interest on costs is a claim for relief for the purposes of r 36.16(3), but an application to change how interest on costs is to be calculated is not itself a claim for relief. Subsection (5) of s 101 sets the default position for how interest that, by operation of subsection (4), is payable on an amount payable under an order for costs is to be calculated. There are two parameters for the calculation of interest: the rate of interest and the date from which interest is to be calculated. The default position imposed by subsection (5) is for the rate of interest to be the prescribed rate and for the date from which interest is to be calculated to be the date the order for costs was made. These default parameters for calculating the interest can be changed by an order of the court. Making an order that the rate of interest or the date from which interest is to be calculated is to be otherwise than the default parameters is not a determination of the claim for interest, but only a determination of how interest is to be calculated.
13. Accordingly, it matters not that the Court's order for the payment of costs did not (and temporally could not) determine Williams' application under s 101(5) of the Civil Procedure Act for the date from which interest is to be calculated to be other than the date that the order for costs was made. This was because the application to vary the date from which interest is to be calculated is not a claim for relief. What does matter is that the claim for interest on costs (which is a claim for relief) has been determined upon the Court making the order for the payment of costs by operation of s 101(4) and (5) of the Civil Procedure Act.
14. The application to vary the date from which interest on costs is to be calculated is an application for the Court to set aside or vary the order for the payment of costs in two ways. First, it seeks an additional order, being an order under s 101(5) of the Civil Procedure Act varying the date from which interest on the amount payable under the order for costs is to be calculated from the default date of the date the order for costs was made to another date. As McColl JA observed in Zepinic v Chateau Constructions (Australia) Ltd (No 2) at [85]: "An application for an order not made in the Court's original orders is an application for a variation of a judgment or orders of the Court, albeit that it would add an order, rather than amend an existing order."
15. Second, in a sense, an otherwise order under s 101(5) of the Civil Procedure Act does vary the order the Court made for the payment of costs in that it changes how that order operates. Because the Court did not make an otherwise order under s 101(5) at the time it made the order for the payment of costs, the default position on how to calculate the interest payable on an amount payable under the order for costs operated. One of the default parameters is the date from which interest is to be calculated. This is the date the order for costs was made. The order for costs triggers the determination that interest is payable on the amount of costs payable under the order for costs at the prescribed rate and as from the date of the order for costs. The application now made by Williams for an order under s 101(5) of the Civil Procedure Act is to vary this operation of the order for costs by varying how interest on the amount payable under the order for costs is to be calculated and hence the amount of interest payable. The amount payable under an order for costs includes, by operation of s 101(4) and (5) of the Civil Procedure Act, the amount of interest payable on the amount payable under the order for costs. If the amount of interest is varied, by varying how interest is to be calculated, such as by changing the date from which interest is to be calculated, the amount payable under the order for costs is varied: Hutley v Cosco (No 2) at [28].
16. In either of these ways, Williams' application to vary the date from which interest is calculated is an application to vary the Court's order that Sydney Water pay Williams' costs.
17. For these reasons, Williams' application is out of time. The Court no longer has power to set aside or vary the order it made on 8 July 2021 for the payment of costs by varying the date from which interest is to be calculated and hence the amount of interest payable on the amount of costs payable under the order for costs. The notice of motion should therefore be dismissed.

Discretionary refusal to vary the interest payable

1. This is sufficient to dispose of Williams' application. I would add, however, that even if the Court were to have power to vary the date from which interest on costs is to be calculated, I would not make such an order in the exercise of my discretion. There are three reasons. Rather than setting out each party's submissions on discretion separately, I will incorporate their submissions with each of my reasons.
2. First, Williams' application was delayed. Under UCPR r 36.16(3A), application to set aside or vary a judgment or order is to be made within 14 days of the judgment or order being entered. Williams did not do so. The Court made the order for the payment of costs which triggered the statutory determination for payment of interest on costs on 8 July 2021. Williams did not file its notice of motion applying to vary the interest payable until 19 November 2021, over four months later.
3. Assuming the Court were to have power to determine Williams' application to vary the interest payable, made more than 14 days after the Court's order for costs was entered, the delay in making the application undermines the principle of finality. Sydney Water was entitled to expect that Williams' claims for costs and interest on costs had been finally disposed of and were beyond recall once the 14 day period from the date of the Court's orders had expired. As Barwick JA observed in Bailey v Marinoff at 530: "It would…not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed." That was put as a matter of power, but it is equally relevant to the exercise of discretion if there be power. It would not promote the due administration of the law or the promotion of justice for a court many months after finally disposing of proceedings to recall and revise its orders that determined all of the claims for relief in the proceedings.
4. Secondly, Williams has not advanced any explanation for why it did not make application under s 101(5) of the Civil Procedure Act for any order that interest be calculated from a date other than the date of the order for costs, either at the time the Court was considering the costs order to be made or within 14 days after the Court made the costs order.
5. In my judgment of 18 March 2021 determining the substantive proceedings, I directed the parties, if they "wish to contend for a costs order different to the usual order for costs that Sydney Water pay Williams' costs of both proceedings, they should include that submission in their submission on the injunctive relief that should be granted" (at [317]). Whilst I did not refer expressly to the interest payable on any amount payable under any order for costs I might make, that silence needs to be understood in the context of s 101(4) and (5) of the Civil Procedure Act, which operate to make interest payable on an amount payable under an order for costs. In this context, if any party wished to contend for interest not to be payable on costs (which would be different to the default position under s 101(4)) or to be calculated differently (to how s 101(5) provides interest is to be calculated), it was incumbent on the party to have made that submission in their submissions on costs and the injunctive relief that should be granted.
6. In response to the Court's direction, Williams filed on 1 April 2021 proposed orders and written submissions. Under the heading of "Costs", Williams submitted: "Consistently with the observations of the Court in [317] of the Judgment delivered on 18 March 2021, JKW [Williams] seeks an order that Sydney Water pay JKW's costs of and incidental to both proceedings."
7. Williams made no application under s 101(5) of the Civil Procedure Act or any submission that interest should be calculated differently to the default position under s 101(5). Sydney Water did not contest in its submissions that it should be ordered to pay Williams' costs of the proceedings. It also made no application or submission about interest on costs.
8. There was a hearing on 2 July 2021, at which the parties adduced evidence and made submissions on the injunctive orders that should be made. There was no contest about the costs order that should be made. Williams did not apply for an order under s 101(5) of the Civil Procedure Act or make any submission that interest on costs should be calculated differently to the default position under s 101(5).
9. On 8 July 2021, I made the order that Sydney Water pay Williams' costs. Thereupon interest on costs was payable by operation of s 101(4) of the Civil Procedure Act.
10. Williams did not make the present application to vary the interest payable until 19 November 2021 and did not give any prior notice of that application to Sydney Water.
11. Williams did not provide any explanation for its delay in making the application. Mr Hartog, the sole director of Williams, gave affidavit evidence regarding the loan facilities, and the payment of legal fees and other costs before and during the litigation drawing on those loan facilities, in an endeavour to justify why the date from which interest on costs should be calculated should be different from the default position of the date the order for costs was made. But this evidence did not explain why, if such order were to be justified, Williams did not apply earlier, either at the time the Court was considering the costs order to be made or shortly after the Court made the costs order. The lack of explanation for the delay works against making an order varying the interest payable.
12. Thirdly, Williams has not established that it will in fact suffer prejudice if the Court were not to make the order sought to vary the date from which interest is to be calculated. The default position under s 101(4) and (5) of the Civil Procedure Act is that Williams is entitled to be paid interest on the amount of costs payable under the Court's order for costs, to be calculated at the prescribed rate and as from the date the Court's order for costs was made. Williams' evidence does not establish that the amount of interest that would be so calculated will not compensate Williams for being out of pocket in respect of costs that it has paid.
13. Williams' evidence does not establish whether, and if so when, Williams paid the various invoices that comprise the agreeable amount of costs that Sydney Water has been ordered to pay. Williams, being J.K. Williams Staff Pty Ltd, is but one company in the J.K. Williams group of companies. The loan facility with the Commonwealth Bank of Australia was for four borrowers in the corporate group, Williams, as well as J.K. Williams Contracting Pty Ltd, J.K. Williams Plant Pty Ltd and J.K. Williams Constructions Pty Ltd. The loan facility provided for different tranches to the four borrowers. Tranche B - Market Rate Loan Facility was for Williams, the facility limit being $672,000. Other tranches for other borrowers were for considerably greater amounts. The interest rate under Tranche B was "BBSY Rate plus a margin of 1.0% per annum calculated on the aggregate principal amount of each Utilisation which is then outstanding under this Facility." What this precise interest rate was, at any relevant time when Williams might have incurred costs, was not explained. In particular, it was not explained whether the interest rate was more or less than the prescribed rate of interest under UCPR r 36.7.
14. Williams tendered bank statements purporting to show the draw down on the loan facility to pay invoices for costs. One bank statement was for a "Business Cheque Account" with the National Australia Bank in the name of another company, J.K. Williams Contracting Pty Ltd. An account statement showed an aggregate payment of $699,223.38 on 15 September 2017, of which $26,480.50 was paid to a firm of solicitors, but that included a sum of $4,455.20 for another matter. The invoice of this firm of solicitors was addressed to Williams (J.K. Williams Staff Pty Ltd). This bank statement, therefore, did not establish that Williams itself paid any amount of the costs in these proceedings, only that another company in the J.K. Williams group paid the amounts that were invoiced to Williams.
15. Williams also tendered a bank statement for a "Contracting Operating Account" with the Commonwealth Bank. The account holder was listed as "JKW Holdings Pty Ltd", referring to the holding company in the J.K. Williams group, J.K. Williams Holdings Pty Ltd. This bank statement showed an outgoing payment of $2,545,332.32 on 30 November 2020 to "J K Williams Cont Co", referring to J.K. Williams Contracting Pty Ltd. One of the items making up this aggregate payment was to another firm of solicitors in the amount of $43,380.70 and to senior counsel in the amount of $10,670. The invoices for these amounts were addressed or referred to Williams (J.K. Williams Staff Pty Ltd). Again, however, the bank statement does not establish that Williams itself paid any amount of the costs in these proceedings, only that another company in the J.K. Williams Group paid these amounts that were invoiced to Williams.
16. The evidence does not establish, therefore, that Williams itself will be out of pocket for interest it has incurred on amounts of costs it has paid or, if so, what the amount of that interest is or how that amount of interest is calculated. Without this evidence, Williams has not provided justification for the Court ordering that interest on costs should be calculated from a date other than the date on which the Court made the order for costs.
17. Williams referred to the statement of the Court of Appeal in South West Helicopters Pty Ltd v Stevenson (No 2) [2018] NSWCA 99 at [41], referring to the majority view in Drummond & Rosen Pty Ltd v Barry Easey (No 2) at [3], that it was "unnecessary for there to be evidence of the date or dates on which the costs concerned were paid for an order for the payment of interest to be made". This is of little relevance in the present case, not only because the amendment of s 101(4) of the Civil Procedure Act has obviated the need for the Court to make an order for the payment of interest, but also because here the critical question is whether and if so when Williams itself paid the costs concerned, so as to be out of pocket.
18. Williams also referred to the statement in South West Helicopters Pty Ltd v Stevenson (No 2) at [43], referring to the statement in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [403], that "in the absence of any countervailing discretionary factor, it is appropriate that an order for interest on costs be made to compensate the party having the benefit of a costs order for being out of pocket in respect of relevant costs which it had paid. There is no requirement to establish that the circumstances of the case are out of the ordinary."
19. Again, however, that misses the point of concern here, which is whether and if so when, Williams paid the amounts of costs. This is foundational to Williams establishing that it is out of pocket and if so from when, so that the order for interest on costs can and will compensate Williams. As Sydney Water submitted, to make an order under s 101(5) of the Civil Procedure Act without knowing what or when costs were paid by Williams, and what interest Williams actually incurred on those costs, risks overcompensating Williams.
20. For these reasons, I am not persuaded in the exercise of my discretion to order under s 101(5) of the Civil Procedure Act that the date for calculating the interest payable on the amount of costs payable under the Court's order for costs should be a date different to the date the costs order was made.

Conclusion and orders

1. As Williams' application under s 101(5) of the Civil Procure Act to vary the date from which interest on costs is to be calculated has been made more than 14 days after the Court's order for costs was made, the Court no longer has power to make an order under s 101(5) of the Civil Procedure Act. Even if it were to have such power, however, I would not do so in the exercise of my discretion. Williams' notice of motion should be dismissed with costs.
2. The Court orders: 1. The applicant's notice of motion filed 19 November 2021 is dismissed. 2. The applicant is to pay the respondent's costs of the motion.

Amendments 14 March 2022 - Correction to typographical errors at [3] and [26]. 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: 14 March 2022