CITATION: O'Sullivan v Sydney South West Area Health Service [2007] NSWADT 51 DIVISION: General Division APPLICANT PARTIES: Dr Brendan Thomas O'Sullivan RESPONDENT Sydney South West Area Health Service FILE NUMBER: 053376 HEARING DATES: On the papers SUBMISSIONS CLOSED: 1 September 2006 DATE OF DECISION: 9 March 2007 BEFORE: Higgins S - Judicial Member CATCHWORDS: access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSW ADT 195 APPLICANT In person REPRESENTATION: RESPONDENT P King, solicitor ORDERS: The Applicant has failed to raise a s.24(2) of the FOI Act issue and the application is dismissed REASONS FOR DECISION Introduction 1 This is a decision on a preliminary issue as to the Tribunal's jurisdiction to further consider the applicant's application for review of a decision, dated 6 October 2005, of the respondent agency (Sydney South West Area Health Services) pursuant to the Freedom of Information Act 1989 (the FOI Act). This preliminary issue arose following the decision of the President in Cianfrano v Director General, Department of Commerce & anor (No 2) [2006] NSWADT 195. That decision related to the Tribunal's jurisdiction to deal with an application under the FOI Act where an applicant alleges that an agency has failed to locate documents in its possession which fall within the terms of his/her FOI request. In Cianfrano, at [65], the President held that such a failure amounted to a determination, by an agency pursuant to s.24(2) of the FOI Act, to refuse access of those documents and was reviewable by the Tribunal. That sub-section provides as follows: '24(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.' 2 In Cianfrano, at [65], the President went on to say that where an applicant alleges a failure by the agency to locate documents, the Tribunal must first decide whether the applicant is in fact raising a s.24(2) question. He then said at [69]: 'An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non compliance of the kind to which s.24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency through the cost and effort of making further searches or putting on affidavit evidence.' 3 For the reasons set out below, the Tribunal finds that, on the material before it, the applicant has failed to raise a s.24(2) issue. Further more the Tribunal finds that the issues raised by the applicant are satellite issues and do not arise from the determination by the respondent that is the subject of review under s.53(1) of the FOI Act. Consequently, the Tribunal finds that it has no jurisdiction to hear and determine the applicant's application. Background 4 The applicant's application for review has been a long and protracted matter and it is necessary to first set out in some detail the terms of his FOI request and the decision the subject of review. 5 Applicant's FOI request - On 29 July 2005, the applicant wrote to the respondent seeking the following categories of documents pursuant to the FOI Act: '(i) all copies of documentation in relation to the use of "courier" services to and from Her Excellency Governor Marie Bashir by CSAHS (SSWAHS) in the period 1 July 2000 to the present; (ii) copies of all of the "documents" sent by Dr Storm and Ms Lombardo to Her Excellency Governor Marie Bashir as referred to in the attached letter dated 4 June 2003; (iii) copies of all documentation sent by Dr Storm and Ms Lombardo to Her Excellency Governor Marie Bashir at any other time in the period 1 July 2003 to the present; (iv) copies of all documentation sent by any other administrative officer of CSAHS (SSWAHS) to Her Excellency Governor Marie Bashir in the period July 2000 until the present, and in particular any document sent by Dr Diana Horvath, Mr Michael Wallace and Dr Gregory Stewart to Her Excellency Governor Marie Bashir; and (v) copies of all e-mails, file notes of all telephone conversations, minutes of all meetings and all other documents in relation to me, that have passed between Her Excellency Governor Marie Bashir and any administrative officer of CSAHS (SSWAHS) from the period 1 July 2000 to the present, in particular any documents sent to or received by Dr Diana Horvath, Mr Michael Wallace; Dr Gregory Stewart, Dr Harold V. Storm and Ms Rosa Lombardo.' 6 Subsequent to sending his FOI request, on 5 August 2005 the applicant requested that his FOI request be amended to include a copy of Dr Stewart's notes as referred to in Mr Wallace's witness statement and a copy of file note and/or minutes of Dr Horvath and Dr Wallace's meeting with Mr Dix and Dr K. Wilhelm concerning the applicant. 7 Original determination of respondent - The respondent determined the applicant's FOI request on 6 September 2005. In respect to each of the categories of documents for which access was sought the respondent, in summary, replied as follows: (a) in respect to documents coming within para (i) – access was refused on the grounds of s.25(1)(a) of the FOI Act in that the work involved in dealing with the applicant's application for access to these documents would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions; (b) in respect to paragraph (ii) – no documents could be located or identified; (c) in regard to paragraph (iii) – one document was identified and was released in full; (d) in regard to paragraph (iv) – no documents had been identified; (e) in regard to paragraph (v) – three documents were identified, two of which were released in full and the other released with deletions in respect of two exempt matters coming within Cl 6 of Schedule 1 of the FOI Act (personal affairs); (f) in regard to notes of Dr Stewart as referred to in Mr Wallace's written statement – two documents were identified and released in full; and (g) in regard to file notes and/or minutes of Dr Horvath and Dr Wallace's meeting with Mr Dix and Dr K. Wilhelm concerning the Applicant – no documents were identified. 8 As the applicant has at no stage pressed, in the course of these proceedings, the respondents determination in respect to paragraph (i) of his FOI request, or the deletions in respect to the one document released in response to paragraph (v) of his FOI request, the Tribunal has not considered this aspect of the respondent's determination any further. 9 Internal review request - On 9 September 2005, the applicant made an internal review request. In that internal review request the applicant challenged each and every aspect of the respondent's initial determination. In summary, the applicant's response was as follows: (a) …; (b) in respect to paragraph (ii) – the applicant asserted that Dr Storm had failed to provide the necessary documents; (c) in regard to paragraph (iii) – the applicant asserted that the response was 'manifestly dishonest'; (d) in respect to paragraph (iv) – the applicant referred to the 'limited response' and asserted that it was also 'manifestly dishonest' and he went on to assert that file notes were supposed to be kept by all administrative staff; (e) in respect to paragraph (v) – the applicant asserted that 'all e-mail records had not been produced as required nor have they ever been'. … In respect to the document that had been produced, the applicant asserted that this demonstrated the respondent's failure to comply with past FOI request he had made; (f) in respect to paragraph (vi) – an allegation that the documents that were produced in respect to this paragraph had been previously sought under FOI requests as well as pursuant to Summonses to Produce issued from the Tribunal and the fact that the Applicant had raised the matter with the NSW Ombudsmen; and (g) in respect to paragraph (vii) – an assertion that it was 'simply not honest to indicate that no documents exist regarding the arrangements of' the meeting between Dr Horvath and Mr Wallace and Mr Dix and Dr Wilhelm. 10 Internal review determination of respondent - As mentioned above, on 6 October 2005, the respondent made its determination in respect to the applicant's request for internal review. In that internal review determination, the respondent addressed each and every assertion that had been made by the applicant in his internal review application. In respect to those paragraphs in which the applicant asserted that the respondent had failed to identify all documents coming within his FOI request, the respondent replied that 'reasonable and appropriate searches had been made to locate documentation falling within the scope of his request but no documents were found'. 11 Application to the Tribunal - In his application for external review the applicant stated the following as his reasons for seeking external review of the respondent's decision of 6 October 2005: ' The Complainant contends that the Respondent has since the first Freedom of Information request was made in 2003 failed to deal with all applications in a proper and timely manner and has failed to deal with all requests for internal review properly. The Complainant further asserts that the Respondent has wrongfully withheld and improperly avoided the production of documents which are within possession, custody and/or control of the Respondent and in respect of which production by the Respondent is proper and appropriate …' 12 Planning Meetings and Directions The applicant's application came before the Tribunal for a planning meeting or directions on 29 November 2005, 15 December 2005, 31 January 2006, 14 March 2006, 6 April 2006 and 18 August 2006. The purpose of these meetings and directions is to identify the issues of concern to the applicant in relation to the decision that is the subject to review. Accordingly, during the first planning meeting this issue was raised with counsel who appeared on behalf of the applicant. Following some discussion the applicant was ordered to file and serve an amended application which particularised the decisions for which he sought review and the particular aspects of the decision he sought review of. At the same planning meeting the respondent was ordered to file and serve, in point form, the searches that had been conducted by the respondent in respect to the applicant's 29 July and 5 August 2005 FOI request and which was the subject to the decision for review (i.e. the 6 October 2005 decision). 13 The respondent complied with the Tribunal's orders. However, the applicant repeatedly failed to comply. He did at some stage indicate that the decisions he sought review of were decisions dating back to 2003, in respect to his first FOI request to the respondent. However, he was not able to produce a copy of his request or the decision of the respondent in respect to that request. Indeed he failed to produce a copy of any FOI request he had made prior to the request that is the subject of the review decision, but he continued to assert that the respondent had repeatedly failed to locate documents in response to all his FOI request, in particular a failure to locate relevant emails. 14 Accordingly, following the applicant's failure to comply with orders of the Tribunal and on the application of the respondent it was agreed that the Tribunal would determine as a preliminary issue as to whether the applicant had produced sufficient material to raise a s.24(2) of the FOI Act issue in respect to the decision the subject of review. 15 It should be noted that following the initial planning meetings and directions the applicant was not legally represented at subsequent directions. However, he continued to appear in person and file written submissions. Evidence 16 The applicant filed several folders of documents with his application. Included in these documents was an affidavit of the applicant sworn on 28 October 2005. That affidavit had numerous documents attached to it, including an affidavit sworn by James Winchmore Henderson ('Mr Henderson') on 6 October 2005. In that affidavit Mr Henderson, a person with IT qualifications and experience, gave evidence to the effect that documents that were 'electronically stored' 'should be relatively easy to access by the relevant IT officer and/or manager/s using search strings.' From the material before the Tribunal it would appear that this affidavit was prepared for use in proceedings involving the applicant before the Medical Tribunal of NSW. The contents of the affidavit suggest it was used to show the inadequacy of the respondent's response to a request or order for the production of documents to the Medical Tribunal of NSW. 17 A further affidavit of Mr Henderson, sworn 6 April 2006, was filed in these proceedings. In that affidavit, Mr Henderson makes reference to the applicant having made an FOI request to the University of Sydney in September 2005 and that documents were produced by the University on or about 21 October 2001 pursuant to that request. Mr Henderson then makes reference to four documents to which the applicant had been given access to by the University, copies of which were attached to the affidavit. He lists the documents under four headings, namely date of the document, 'the sender and description of the document' and 'Proof of posting to office/s of the Respondent and identity of the officers of the Respondent'. In summary the four documents are as follows: (a) email dated 28 October 2002 and sent at 15:47:19 from Diana Horvath to Peter Beaumont and Victor Storm, with copy to Diana Horvath, Mike Wallace and J Young; (b) email dated 24 April 2002 and sent at 10:55:23 from Victor Strom to Peter Beaumont with a copy to Peter Kennedy; (c) a forwarded email dated 28 October 2002 and sent at 14:50:07 from Peter Beaumont to Mike Wallace with copy to Victor Strom, Diana Horvath; John Young; and Steve; and (c) email dated 28 October 2002 and sent at 14:50:07 from Peter Beaumont to Mike Wallace with copy to Victor Strom, Diana Horvath; John Young; and Steve together with 3 attached documents. 18 The applicant also filed an affidavit of Peter Far ('Mr Far'), solicitor, sworn on 5 April 2006. That affidavit only relates to documents that were filed by Mr Far on behalf of the applicant at the time the applicant's application for review was filed with the Tribunal. 19 On 13 April and 18 August 2006, the applicant filed two further affidavits. The first affidavit, filed in response to a strike out application of the respondent, makes reference to the abovementioned four emails and the affidavits of Mr Henderson. The applicant also asserts that these emails were indicative of the internal communications that were used between the respondent's officers and those at the University and that '…[it] is probable that there have been a substantial number of emails passing between officers of the Respondent regarding myself since 1999 to date, and ongoing, I say that all of these documents are relevant and should be produced and disclosed.' The applicant also attached a copy of the abovementioned four emails and copies of other documents that he said should have been produced. None of these documents were addressed to or from 'Her Excellency Governor Marie Bashir'. 20 In addition to the abovementioned affidavit's the applicant filed submissions and additional material in support of his allegation of the failure of the respondent to locate documents coming within his FOI request. Included in this material was an email dated 20 November 2002 sent at 14:09:40 from Peter Beaumont to M Fry with a copy to Michael Wallace, Philip Boyce, Her Excellency Professor Marie Bashir, Victor Storm and Stephen Newman on which the applicant wrote: 'Mr Wallace should have given this under FOI'. 21 In the second affidavit, sworn on 18 August 2006, the applicant again refers to all his previous FOI requests. He states that in or about May 2005 he had a conversation with Gale Berg ('Ms Berg'), the respondent's FOI officer, as to why she was not producing any emails in response to his FOI requests. He states that Ms Berg responded by saying that they no longer had them as their contents had been deleted. He then went on to state that such deletions were contrary to the IT protocol of the respondent and that of the Department of Health. He also asserts that if they had been deleted then this had been done deliberately to avoid the production of sensitive material concerning him. 22 The respondent also provided the Tribunal with a copy of the applicant's FOI request of 29 July and as amended on 5 August 2005, the original determination of Ms Berg and the documents that were released pursuant to that determination, the applicant's internal review request and the internal review determination. Cianfrano decision 23 In Cianfrano v Director General, Department of Commerce & Anor (No.2) [2006] NSWADT 195, the President considered in some detail the Tribunal's jurisdiction in respect to adequacy of search by an agency in respect to an FOI request that has been made to it under the FOI Act. 24 In that case, the applicant had submitted that there were additional documents that had not been disclosed by the respondent agency. This submission was made after the applicant had filed his application for external review and also following planning meetings. In his submissions, the applicant also listed those documents which he asserted came within his FOI request and which had not been produced. 25 Following consideration of previous decisions of the Tribunal in respect to adequacies of search and the provisions of the FOI Act (NSW) and equivalent Freedom of Information provisions in the Commonwealth and Victorian FOI legislation, the President stated the following at [62]: […].As I have already mentioned, FOI legislation generally – and in this respect the NSW Act is no different – gives citizens a right to see all documents actually held by government, subject to various limitations. It is a mechanism for obtaining access to documents that are extant. It does not depend on any notion of 'reasonable expectations'. While I agree (step (ii)) that the agency must respond to the 'whole ambit of the request' I do not think it can be asserted that the agency is therefore obliged to provide all documents 'which the applicant alleges to be 'held' by the agency regardless of whether this is in fact the case'. 26 The President went on to conclude as follows: 65. Raising of a section 24(2) question: In my view if an applicant contends that there has been a failure to locate relevant documents the Tribunal must decide whether the applicant is raising a s.24(2) question. The situation that arose in Burton underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can properly characterise as a refusal of the kind referred to in s.24(2); and is reviewable. 66. … 67. … 68. I think it clear that the function of s.24(2) in the scheme of the Act is to ensure that an agency fully determines an application, and for such a refusal to be subject to the scrutiny of both internal and external review. 69. In considering whether there is an arguable issue, the Tribunal may, it seems to me, have regard to whether the applicant has, in the spirit of the act, made the objection at the first reasonable opportunity. Normally this would occur at the time the original response to the request is received. This case is odd in that regard, in that the substantive determination refusing access to various documents was made after the application to review had been lodged with Tribunal. (The application for review, as filed, challenged an advanced deposit determination), with the result that the applicant brought forward for the first his contention that the response was inadequate when the matter was before the Tribunal. 70. The applicant will be in a stronger position where he or she has specified in relatively precise terms the documents that he or she is seeking, and has material to indicate that some documents relevant to the request are of a kind that should be held by the agency but have not been identified. This kind of situation presented itself in the early Queensland case, Smith. 71. The position is, obviously, much more difficult in cases where the original request is of a sweeping or vague character. There may be room for debate as to what precisely the request is seeking to cover. The applicant may have a very wide view of the request, and the agency a different and narrower view. The provisions already mentioned requiring the applicant to be reasonably precise and requiring the agency to consult with the applicant are the primary mechanisms in the Act designed to address this kind of difficulty.' Consideration and findings 27 It is clear from the material filed by the applicant that he has been in dispute with the respondent for some considerable period of time in regard to several matters, most of which are not relevant to the current application for review. I have considered all the material that has been filed, including the written submissions of both the applicant and the respondent. However, before I address the specific assertions of the applicant in regard to the failure to locate documents it is necessary to briefly set out the Tribunal's jurisdiction in respect to decisions of an agency made pursuant to the FOI Act. I have done this in light of the applicant's continual failure to accept the limits of the Tribunal's jurisdiction on an external review under the FOI Act. 28 Administrative Decisions Tribunal Act 1987 In reviewing an administrative decision of an government agency, the Tribunal is conducting an external review and its jurisdiction as to what decisions are reviewable by it is set out in s.38 of the Administrative Decisions Tribunal Act 1987 ('the ADT Act). That section provides that the Tribunal only has jurisdiction to review a decision where an Act other than the ADT Act confers such jurisdiction on the Tribunal: see s.38(1) and s.5 of the ADT Act. That is, the source of the Tribunal's jurisdiction to review a decision of an agency must be found in another piece of legislation which expressly gives the Tribunal jurisdiction to conduct a review of that decision. In this application, the relevant legislation is the FOI Act, in particular s.53 of that Act. 29 FOI Act S.53 of the FOI Act, so far as it is relevant to this application, provides as follows: 53. Right to make a review application (1) A person who is aggrieved by a determination made by an agency or Minister under s.24 or 43 may apply to the Tribunal for a review of the determination (2) ... (3) For the purposes of this section, a person is aggrieved by a determination; (a) in the case of a determination that relates to an access application made by the person under s.17, 34 or 36 – if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document, or (ii) … (underlining added) 30 It is clear from the terms of this section of the FOI Act that what is reviewable is 'a determination' (i.e. a decision) of an agency under specific sections of the FOI Act which relates to an 'access application'. That is, 'the determination' which is reviewable must be a decision that was made pursuant to ss.24 or 43 of the FOI Act in response to a particular 'access application.' The term 'access application' is defined in s.52B of the FOI Act and it includes an application for 'access to a document of an agency.' Provision is made for such applications in s.17 of the FOI Act. 31 It is this section (i.e. s.17) which triggers the regime as set out in Part 3 of the FOI Act in regard to: (a) when and how an agency is to determine an application for access to documents (see Division 1 and 2 of Part 3 of the FOI Act, in particular ss.24 and 28); (b) when and how the 'access' applicant is entitled to request an internal review of any determination that is made in regard to his/her application for access to documents (see s.34); and (c) when and how an agency is to determine an internal review application (see s.34(4) to (6)). 32 A s.17 application not only triggers the regime concerning determinations for access, its contents also form the parameters within which determinations are to be made, namely in respect to those documents identified in the application for which access is sought (see s.17(d) which expressly provides that an application for access, which must be in writing, is to 'contain such information as is reasonably necessary to enable the document to be identified' and s.19(1) which provides that an agency is not to refuse to accept an FOI request because it does not contain sufficient information to enable the document to which the request relates to be identified without first taking such steps as are reasonably practicable to assist the applicant to provide such information. See also paragraph [25] above). That is, every determination by an agency under s.24 of the FOI Act (whether it be an original determination or an internal review determination) is a decision in respect to those document identified by the FOI applicant in his/her FOI request. And where an applicant makes several FOI requests over a period of time, the agency is required to deal with each request as and when it is received and then make a determination within the time prescribed under the FOI Act (i.e. 21 days for initial determination and 14 days for internal review determination). Accordingly, where several applications for access are made over a period of time an agency will generally make a separate determination on each application. 33 Where an FOI applicant makes an application for external review under the ADT Act of a determination of an agency under the FOI Act, the applicant must identify which determination of the agency he/she seeks external review of. This will in turn identify the particular FOI request or documents that the determination relates to. An application for external review of a specified determination under the FOI Act is not open ended in that the Tribunal can review other earlier determinations of the agency under the FOI Act. 34 Findings The first matter for determination is identifying the determination or decision of the respondent that is the subject of external review in this application. In this regard the applicant has clearly identified, in his application to the Tribunal, the determination of 8 October 2005 as being the relevant determination. 35 The next matter for determination is identifying the documents or FOI request to which that determination relates. Again as mentioned in paragraphs [5] and [6] above the relevant documents are those contained in his FOI request of 29 July and 5 August 2005. Of these documents, the only ones in dispute are those documents sent by Dr Storm, Miss Lombardo, and any other administrative officer of the respondent (in particular, Diana Horvath, Michael Wallace and Gregory Stewart) to Her Excellency Governor Marie Bashir and any documents passed between Her Excellency Governor Marie Bashir and any administrative officer of the respondent. The applicant had also restricted the ambit of his request to documents that related to him during specified periods of time. 36 As mentioned in paragraph [7] and [9] above, the respondent did locate some documents and granted the applicant access to these. It also stated that in some instances documents could not be located and the applicant's complaint is that the respondent has deliberately failed to locate documents that he has requested, in particular emails. 37 In this regard I find that the affidavit evidence of Mr Henderson is of limited assistance. The fact that, in response to an FOI request, the University of Sydney granted the applicant access to four e-mails as attached to the affidavit of Mr Henderson does not mean that the respondent was required to locate these in respect to the July and August 2005 FOI request of the applicant. On the contrary, the content of these emails show that they fall outside the ambit of that request as neither e-mail is addressed to or copied to Her Excellency Governor Marie Bashir. Nor is there any evidence that they passed between Her Excellency and the relevant officers of the respondent. The same applies to the e-mail from Peter Beaumont, dated 20 November 2002, which was attached to the written submissions of the applicant. In that case although a copy of the e-mail is stated to have been copied to 'Her Excellency Governor Marie Bashir', it cannot be said that it is an e-mail between Her Excellency and the relevant officers of the respondent. 38 The fact that a copy of an email was sent to 'Her Excellency Governor Marie Bashir' is not indicative of a usual practise of officers of the respondent corresponding with Her Excellency by means of email. In this case it was only one email and it did not emanate from an officer of the respondent, it emanated from the University. 39 In respect to the earlier affidavit of Mr Henderson which was prepared for different proceedings in a different Tribunal, I find this evidence to be of no assistance as the respondent's position has never been that it was difficult to locate relevant documents on the respondent's computerised systems, which was the issue before the Medical Tribunal of NSW. 40 This leaves the evidence of the applicant in relation to his alleged conversation with Ms Berg in May 2005. That conversation as recounted by the applicant occurred prior to his FOI request that is the subject of this application and yet it was not until 18 August 2006 that he has raised it even though he has continually alleged that the respondent was not providing him access to documents he had requested. In any event, even if it were to be found that Ms Berg said this and it was true, there would be no such documents in the possession of the respondent that fell within the terms of the applicant's FOI request at the time it was made. The question as to whether Ms Berg did say this and whether it is correct is not a matter the Tribunal can investigate, it is a matter that is more appropriately addressed by the Ombudsman. Conclusion 41 As set out in paragraph [2] and [26] above, the question for determination in this preliminary application is whether the applicant has put on some credible material or submissions which persuades the Tribunal that there is an arguable case that the respondent has failed to locate documents that fall within his July/August 2005 FOI request. In my opinion, on the basis of my findings above he has failed to do so, in respect to the determination that is the subject of his external review application to the Tribunal. At all times his assertions have been general and directed towards every determination of the respondent has made under the FOI Act since 2003 in regard to his various requests. That is these assertions cannot be said to be such that they specify with any precision the documents that the applicant asserts have not been located and which fall within his July/August FOI request. On the other hand the respondent has provided in brief point form the areas where enquiries have been made to locate relevant documents and the applicant has not in any way challenged these other than to continue with his general assertions. 42 Accordingly, I find that the applicant has failed to raise a s.24(2) issue and on this basis the applicant's application should be dismissed. 43 The Tribunal orders that the applicant has failed to raise a s.24(2) of the FOI Act issue and the application should be dismissed. 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.