Supreme Court New South Wales Medium Neutral Citation: Snowy River Alliance Inc v Water Administration Ministerial Corporation [2011] NSWSC 652 Hearing dates: 14 March 2011 Decision date: 30 June 2011 Jurisdiction: Common Law - Administrative Law Before: Hislop J Decision: Summons dismissed. Legislation Cited: Snowy Hydro Corporation Act 1997 Cases Cited: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Lockwood v The Commonwealth (1954) 90 CLR 177 Category: Principal judgment Parties: Snowy River Alliance Inc (Plaintiff) Water Administration Ministerial Corporation (1st Defendant) Snowy Hydro Limited (2nd Defendant) Representation: Counsel: S Free (Plaintiff) C Norton (1st Defendant) I R Pike (2nd Defendant) Solicitors: The Environmental Defender's Office (Plaintiff) NSW Office of Water (1st Defendant) Mallesons Stephen Jaques (2nd Defendant) File Number(s): 2010/245123 Judgment Introduction 1By summons filed on 23 July 2010 the plaintiff sought the following relief: "1. A declaration that the review culminating in the "Final Report Five-year Review of the Snowy Hydro Water Licence" published by the Water Administration Ministerial Corporation in November 2009 was not, for the purposes of the Snowy Hydro Corporatisation Act 1997 and the Snowy water licence issued thereunder, a review of the kind referred to in s 25(1) and s 25(2)(a) of the Act and cl 10.1 of the licence. 2. A declaration that the purported variation to the Snowy water licence by the Water Administration Ministerial Corporation issued on 29 April 2010 (with effect from 1 May 2010) was void and of no effect. 3. An order setting aside the purported variation to the Snowy water licence by the Water Administration Ministerial Corporation issued on 29 April 2010 (with effect from 1 May 2010). 4. An order that the First and Second Defendants pay the Plaintiff's costs of the proceedings." 2The defendants oppose the orders and declarations sought. Background 3The Snowy River is a river in south eastern Australia which rises near Mount Kosciuszko. 4The Snowy Mountains Hydro Electric Scheme ("Snowy Scheme") captures the waters of the upper Snowy River and its tributaries in the Great Dividing Range and diverts these waters inland through a system of trans-mountain tunnels into the Murray and Murrumbidgee river valleys for use by downstream users. These water diversions produce hydro-electricity through a complex system of infrastructure. 5The construction of the Snowy Scheme resulted in the diversion of 99 per cent of the Snowy River's mean natural flow at Jindabyne. 6Jindabyne Dam is located on the eastern side of the Snowy Mountains. It collects water in the Snowy River that has not otherwise been collected or diverted upstream. Water in Lake Jindabyne can be either stored in Lake Jindabyne, released from Jindabyne Dam to flow down the Snowy River or pumped out of Lake Jindabyne and released to the west towards the Murray or Murrumbidgee valleys. 7The Mowamba River is confluent with the Snowy River downstream of Lake Jindabyne. 8The Mowamba Weir is constructed on the Mowamba River upstream of the confluence with the Snowy River. Most, but not all, of the water flowing in the Mowamba River upstream of the Mowamba Weir is collected behind the weir and does not flow directly into the Snowy River unless the weir overtops, or the water is released. 9The Mowamba Aqueduct is able to convey water stored behind the Mowamba Weir to Lake Jindabyne. 10Cobbon Creek is confluent with the Snowy River downstream of Lake Jindabyne but upstream of the Mowamba River. 11The Cobbon Creek Weir is constructed on Cobbon Creek upstream of the confluence with the Snowy River. Most, but not all, of the water flowing in Cobbon Creek upstream of the Mowamba Weir is collected behind the weir and does not flow directly into the Snowy River unless the weir overtops, or the water is released. 12An aqueduct connects the Cobbon Creek Weir to the Mowamba Aqueduct, and is able to convey water stored behind the Cobbon Creek Weir to Lake Jindabyne. 13The Snowy Scheme was built and operated by the Snowy Mountains Hydro-Electric Authority ("Authority"). 14The Snowy Hydro Corporation Act 1997 ("the Act") has the stated object of reforming the Snowy Scheme by corporatising the Authority and making related changes to the Scheme (s 3(1)). 15The Act provides for a corporatised entity (the Snowy Hydro Company - which is defined to mean the second defendant, Snowy Hydro Limited) to operate and maintain the Snowy Scheme. It provides (inter alia) for: (a) the holding of a Water Inquiry "with respect to environmental issues arising from the current pattern of water flows in rivers and streams in the designated area of inquiry caused by the operation of the Snowy Mountains Hydro-electric Scheme" (Pt 3 esp s 20); (b) the issue of a water licence to the Snowy Hydro Company conferring certain rights and obligations (Pt 5 esp ss 22 and 23). 16The Water Inquiry was commissioned in 1998 under Pt 4 of the Act. The Terms of Reference for that Inquiry reflected the requirements of s 20 of the Act. The Water Inquiry delivered its Final Report in 1998. 17On 5 December 2000, the governments of New South Wales and Victoria entered into an agreement entitled "Agreement on the Outcomes of the Snowy Water Inquiry" (OSWI). 18On 6 December 2000, the governments of New South Wales, Victoria and the Commonwealth of Australia agreed on the terms of a document entitled "Heads of Agreement - the Agreed Outcome from the Snowy Water Inquiry". 19The Heads of Agreement are expressed to have been prepared "to outline arrangements to implement the outcome from the Snowy Water Inquiry which has been agreed between the New South Wales, Victorian and Commonwealth Governments." 20The Heads of Agreement record that the three governments adopted target levels of water flows to be achieved progressively within 10 years, including an aspiration to achieve total flows equivalent to 21 percent of average natural flow in the Snowy River. 21The Heads of Agreement also record that: "All increased flows in the Snowy River...will be offset with water acquired primarily through prior verified water savings in diversions from the River Murray and in the Murrumbidgee and Goulburn-Murray river systems and, if necessary, through purchases of water from these areas", and that: "2.2 The three Governments agree that flows in the Snowy River below Jindabyne will not be increased...unless they are first offset by water acquired through: * primarily undertaking water saving, environmental improvement and regional development projects in diversions from the River Murray and in the Murrumbidgee and Goulburn-Murray river systems; and * if necessary, purchasing water entitlements and water rights from holders in a manner which promotes the water trading market. 2.3 The three Governments agree that, at any given time, the total volume of water releases from the Snowy Scheme to the Snowy River below Jindabyne cannot exceed the total verified volumes of water acquired through the processes outlined in Clause 2.2." 22Section 3 of the Heads of Agreement provides for the establishment of a "Joint Government Enterprise" to acquire water entitlements and to invest in water saving projects with the objective, relevantly, of acquiring sufficient water to offset proposed increased flows in the Snowy River. 23Section 4 of the Heads of Agreement sets out, in some detail, the stages in which the three governments agreed to achieve or target increased flows of water in the Snowy River below Jindabyne. 24On 3 June 2002, the Governments of the Commonwealth of Australia, the State of New South Wales and the State of Victoria entered into the Snowy Water Inquiry Outcomes Implementation Deed ("SWIOID"). The SWIOID is an agreement between the three governments. 25Relevantly, the SWIOID sets out the agreement between the three governments as to the volume of increased flows which are to be released into the Snowy River. Clause 7.1 of the SWIOID states that: "The Parties acknowledge that the arrangements and actions contemplated under this Deed are intended to achieve the following target flows and allocations progressively in tandem with increases in the volume of Water Savings." 26Thus, it is the SWIOID which makes provision for the relevant governments to progressively increase the targeted volumes of environmental releases from 38 gigalitres per annum to 212 gigalitres per annum as referred to in the OSWI Agreement. 27On 30 May 2002, the first defendant issued a licence under s 22 of the Act ("the Licence"). 28Under the Licence, and subject to its provisions, the first defendant conferred on Snowy Hydro Limited the following rights (cl 7.1): (a) the right to collect all waters from the rivers, streams and lakes within the Snowy Water Catchment; (b) the right to divert that water; (c) the right to store that water; (d) the right to use that water to generate electricity and for purposes that are incidental or related to the generation of electricity or to the management of that water in the Works; and (e) the right to release water from storage. 29Section 23(3) provides: "The Snowy water licence is to give effect to any agreement between the States of New South Wales and Victoria following the report of the water inquiry under Part 4 and, in particular, the licence is to give effect to the provisions of the agreement relating to the initial release of water to the Snowy River for environmental reasons on the issue of the licence." 30Clause 10.5 of the Licence provides: "The Ministerial Corporation may not vary the increased flow requirements so as to cause this Licence to not give effect to the Snowy Water Inquiry Outcomes Implementation Deed." The issues 31The Act provides for the review of the Licence and, in particular, for review after the first five years (s 25(2)). 32The first defendant purported to perform the five year review and in November 2009 the report of such review was published. 33On 29 April 2010 the Licence was purportedly varied. 34The plaintiff seeks judicial review in respect of the purported five year review and the variation of the Licence. Three primary issues were discerned. They are identified and discussed hereunder. Issue 1 - Did the review process miscarry by reason of the exclusion of the topic of the adequacy of environmental flows with the result that the purported review was void and of no effect as it was not a review contemplated by s 25(1) of the Act. 35The first defendant's obligation to conduct a review after the first five years from the corporation date was imposed by s 25 of the Act and cl 10.1 of the Licence. 36They are in the following terms. Section 25 of the Act provides: "Review of licence (1) The Water Administration Ministerial Corporation is to review the obligations under the Snowy water licence at such intervals, and in such manner, as the licence provides. (2) The licence must provide for such reviews at the following intervals: (a) after the first 5 years (being a review of the provisions of the licence relating to the initial release of water to the Snowy River for environmental reasons), and (b) at intervals of 10 years thereafter. (3) It is the duty of the Water Administration Ministerial Corporation to use its best endeavours to complete that first review, and to give effect to the results of the review, within 6 months after the fifth anniversary of the issue of the licence. For that purpose, the Corporation may commence public consultation on the review before that anniversary." 37The "initial release of water" was described in the agreement on the outcomes of the Snowy Water Inquiry (para 2) in the following terms: "NSW and Victoria agree that, on the issue of the Snowy Water Licence, the initial release of water to the Snowy River for environmental purposes by the Snowy Hydro Company will comprise an increase over the existing flows in the Snowy River of up to 38 gigalitres per annum measured immediately below the confluence between the Snowy and the Mowamba Rivers." 38Clause 10.1 of the Licence provides: "The Ministerial Corporation must (1) on the fifth anniversary of the Corporation Date: review the provisions of this licence relating to Snowy River Increased Flows: and (2) on every tenth anniversary of the date referred to in sub-cl 10.1(1): review the Licensee's Obligations, and in each such review the Ministerial Corporation must consider in good faith any submission from the Licensee. 39"Snowy River Increased Flows" is defined in cl 1.1.61 of the Licence as "means releases of water in addition to the Base Passing Flow that: (a) the licensee releases from the Jindabyne Dam into the Snowy River; and/or (b) the licensee releases from either or both of the Mowamba River and Cobbon Creek aqueducts into the Snowy River, In both cases under Part Two of Schedule Three (of the Licence)." 40Base Passing Flow is defined in the licence (para 1.1.8) as "Means (a) with respect to the Snowy River: the volume of 9 GL per Water Year from Jindabyne Dam plus the non-regulated flow past the relevant Works on the Mowamba River and Cobbon Creek prior to the Corporatisation Date..." 41The "Provisions of this Licence" relating to Snowy River increased flows are identified in Pts 2, 3 and 4 of Sch 3 of the Licence. 42Section 27 of the Act provides: "(1) The Water Administration Ministerial Corporation is to undertake public consultation in accordance with this section in connection with (a) any review of the Snowy water licence under section 25 ... (2) In order to give the public an opportunity to make submissions, the Water Administration Ministerial Corporation must (a) exhibit at its Head office and its regional offices a copy of the provisions under review or the proposed variation ..." 43In December 2007 public submissions were invited "to inform the five year review of the Snowy River environmental flow provisions" of the Licence. The invitation for public submissions described the review scope in the following terms: "The scope of this first five year review is limited to the provisions of the licence relating to the initial release of water to the Snowy River for environmental reasons (Appendix A). Specifically following licence provisions are included in the review: * Snowy River increased flows generally (Sch 3 Pt 2 of the licence); * Any other provisions of the licence that relate to the initial release of water to the Snowy River for environmental reasons; * Identify anomalies in the licence and make changes necessary to improve clarity of the licence conditions; * SHL's performance in meeting the conditions of the licence . The review will not address the following: * The adequacy of the volumes of the environmental flow releases... It must be noted that submissions not directly related to the licence conditions identified for review will not be considered." 44The final report of the five year review of the Snowy Hydro Water Licence contained the following statements: "7. Adequacy of volumes of environmental flows A number of submissions raised issues concerning the adequacy of environmental flow volumes allocated to the Snowy, montane and western flowing rivers. Since the review period, the Snowy Scientific Committee has completed a study of adequacy and the Government has responded to the findings of the study. The total volume for environmental releases required for the Snowy, montane and western flowing rivers were determined through the Snowy Water Inquiry. It is premature to reassess the effectiveness of the volume of environmental releases as, due to the drought, the full range of flows has not yet been available for release. Any changes to the volume of water allocated are outside the scope of this review and would have to be renegotiated between the shareholder governments. However, within the limits of the original environmental releases volumes, there is an opportunity to improve the current release strategy and adopt an effective monitoring regime for montane rivers. Development of an appropriate release strategy and monitoring regime will take some time and is also a matter that can be further considered by the SSC. Further, any release strategy requiring any changes to the existing outlet works will need to be undertaken in consultation with SHL... Evaluation of the effectiveness of the environmental flow regime The evaluation of the effectiveness of the current environmental flow regime was based on the information available as a result of the Snowy River Environmental Flow Response Monitoring Project. This project was set up in 2000 to provide a physical, chemical and biological assessment of the river and to quantify the changes if any, caused by the implementation of environmental flows. The data from the various reports used to inform this review were collected from autumn 2000 to autumn 2005. No environmental flow releases were made from Jindabyne Dam during this time. As such, the data provides only limited evidence of the changes to river conditions due to the release of environmental flows. The monitoring results showed that: * There were slight improvements as to the amount of water below Jindabyne Dam, but this amount was substantially less than the simulated natural flows for the same period * The effects of the prolonged drought and the reduced volumes of water available for environmental flow releases made it very difficult to measure any quantifiable changes in environmental conditions. More time and higher volumes of water are required to determine whether changes are occurring..." 45The plaintiff, in short, submitted: (a) it was clear from the terms of the invitation for public submissions that the adequacy of the volumes of the environmental flow releases had been excluded from the review; (b) the volumes to be released are central to the operation of Pts 3 and 4 of Sch 3 of the Licence; (c) by excluding any consideration of the volumes of the environmental flow releases, the first defendant failed to review critical and essential aspects of the "provisions of the Licence relating to Snowy River increased flows"; (d) it was of central importance to the concept of the "review" that it include a consideration of the adequacy of water which had been released and which could be required to be released, to the Snowy River from the Jindabyne Dam; (e) the SWIOID itself could not alter the statutory obligations imposed by s 25(1) on the first defendant. 46The defendants, in short, submitted that: (a) the annual volume of Snowy River increased flows is determined by water savings procured and water entitlements purchased under SWIOID. The volume of environmental flow releases is a matter for the determination of the New South Wales, Victorian and Commonwealth Governments under SWIOID; (b) that subject matter falls outside the scope of a review which is concerned with the provisions of the Licence and its possible variation; (c) the Licence merely makes provision for how the annual volumes, once determined outside the bounds of the Licence, are to be released by the second defendant throughout the year on a monthly or daily basis and employing particular infrastructure; (d) It is clear from the final report [44] that there was a consideration by the first defendant of the topic of releases overall and conclusions reached based on the facts which were available to it. As reported: "...in terms of assessing complete adequacy of the regime set out, there is insufficient scientific data available at the present time because of the drought conditions that have been in force to enable us to judge the overall adequacy of the provisions. To reach a final conclusion in relation to adequacy, one has to wait until we have seen what the effect of releasing the 10 gigalitres is once more water is available and once the drought concludes." (e) the first defendant did what it was required to do. Clearly it reviewed the provisions of the Licence relating to Snowy River increased flows, being those contained in Pts 2, 3 and 4 of Sch 3. 47I accept the defendant's submissions. In my opinion, the review process did not miscarry. Issue 2 - The Ministerial Corporation did not, as required by s 27(2)(b) of the Act, exhibit any state of the environment report of the Snowy Scientific Committee as required by that sub-section with the consequence that there was no power to vary the licence and the purported variation was therefore void and of no effect. 48The Snowy Scientific Committee was established as a body corporate by the Act (s 57(1)). It consists of six members appointed by the Minister (s 57(5)), only one of whom was nominated by the Minister. The Committee is not subject to the control or direction of the Minister (s 57(7)). 49The principal functions of the Committee are "57. (3)(a) to advise the Water Administration Ministerial Corporation each year on the regime for the release of water for environmental reasons under the Snowy water licence; (b) to advise that Corporation from time to time on the adequacy of those releases and the programs for management and restoration of the catchments (and the Snowy River and other rivers and streams) receiving water from those releases, including the arrangements for consultation, monitoring and on-going research about those programs." 50The Committee "is to produce every year a public state of the environment report on the catchments (and the Snowy River and other rivers and streams) affected by the Snowy Mountains Hydro-electric Scheme. The report is to include an executive summary of its contents. The Committee is to provide a copy of each such report to the Water Administration Ministerial Corporation" - s 57(4). 51Section 27 of the Act states: "(1) The Water Administration Ministerial Corporation is to undertake public consultation in accordance with this section in connection with: (a) any review of the Snowy water licence under section 25, or (b) any variation of the Snowy water licence. (2) In order to give the public an opportunity to make submissions, the Water Administration Ministerial Corporation must: (b) in the case of a review - also so exhibit a copy of each state of the environment report of the Snowy Scientific Committee under section 57(4), and... For the purposes of paragraph (b), a copy of a report that is more than 5 years old need not be exhibited if a copy of the report is available on request for inspection at the place of exhibition." 52It was common ground that members of the Snowy Scientific Committee were first appointed by the Minister in January 2008 and that as of November 2009 the Committee had not produced or provided to the first defendant a public state of the environment report of the kind referred to in s 57(4) of the Act with the consequence no such report was exhibited as required by s 27(2)(b). 53The question is whether the absence of a report under s 57(4) means that no valid review could be carried out. 54The plaintiff submitted that s 57 assumes the Committee, established by the commencement of the section, would be operational from that time and would produce an annual report pursuant to s 57(4). The procedure contemplated by the Act has miscarried. As a consequence the first defendant did not carry out a review in the manner required by the Act with the consequence that the review was not valid. The obligation is in mandatory terms. The provision creates, by necessary implication, a jurisdictional precondition to the carrying out of the review process that there must be annual reports of the Committee and that those reports must be exhibited in order for consultation to be carried out in accordance with the section. The first defendant cannot undertake the mandatory public consultation (and therefore cannot complete a review) unless and until annual reports have been provided by the Committee. The fact that Parliament has expressly dealt with old reports confirms this is an important matter and that failure to exhibit them would invalidate the whole process. 55The defendants submitted the timing of reviews is clearly a matter of some importance as the time at which reviews are to occur is prescribed. The legislature has considered the timing of the first review to be of such importance that it has imposed a duty on the first defendant to use its best endeavours to complete it within a specified time. The plaintiff's proffered construction would mean that the time requirements are set at nought if the Committee has not produced the required number of reports because no valid review can take place unless and until all reports have been exhibited. A more harmonious construction of the provisions is that the reference to "each state of the environment report" in s 27(2)(b) is intended as a reference to each such report which actually exists. It is not a reference to reports which should have or could have been produced but have not actually been produced. 56In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] it was said that: "...the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated so far as possible by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which is the subordinate provision, and which must give way to the other. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which bests gives effect to its purpose and language while maintaining the unity of the statutory scheme." 57It was further submitted by the defendants that the Minister had no control over the Committee. If the plaintiff's submission is accepted, it would create a situation where a third party would have the ability to completely stymie the five year review in circumstances where it is quite clear from the provisions of s 25 that the legislature did intend that a five year review was to be done in a timely manner. 58In my opinion, the construction advanced by the defendants should be preferred. I agree with the defendants' submissions. The absence of a report under s 57(4) in the circumstances of this matter does not prevent the review being carried out and does not affect the validity of the review or variations. Issue 3 - If the review did not happen according to law what was the consequence of the variation of the licence that did occur. 59The issue, it was agreed, was one of relief rather than an independent ground of review. The question was what was the consequence for the validity of the variation of the Licence by the Water Administration Ministerial Corporation which did occur if the Court finds that the review did not happen according to law. 60Section 26 of the Act provides - "(1) The Snowy water licence may be varied by the Water Administration Ministerial Corporation ... (b) for the purpose of giving effect to the results of a review of the obligations under the licence as referred to in s 25, or ... (e) with the agreement of the Snowy Hydro Company." 61The licence provides: " 10.2 Variation following Fifth Anniversary Review The provisions of this Licence relating to Snowy River Increased Flows may be varied by the Ministerial Corporation following a review of those provisions under sub-cl 10.1(1). 10.3 The licensee's obligations excluding the increased Flow Requirements and the Water Release Requirements may be varied by the Ministerial Corporation: (1) at any time with the agreement of the Licensee; or (2) with respect to a variation proposed by the Ministerial Corporation that is not agreed to by the Licensee, only following ... 10.4 Subject to clauses 10.5 and 10.6 the Increased Flow Requirements and Water Release Requirements may be varied by the Ministerial Corporation (1) at any time with the agreement of the Licensee." 62The plaintiff submitted that the defect in the review process necessarily invalidated any variation to the Licence made for the purpose of giving effect to the results of the five year review. The legislature must be taken to have intended that a valid review was a necessary precondition to a valid variation to the Licence made pursuant to s 26(1)(b). 63The defendants submitted the review was conducted according to law and therefore Issue 3 did not arise. 64Alternatively the defendants submitted the whole of the variation to the Licence was made with the agreement of the second defendant and thus was a valid exercise of the power contained in s 26(1)(e). They submitted that that conclusion was confirmed by the heading of the variation document which stated that it was in accordance with cl 26(1)(b) and (e) and the signature of the executive officer of the second defendant beneath the words "Acceptance of the variations by Snowy Hydro Limited is acknowledged" on the front page of the variation of Snowy Water Licence. 65The plaintiff accepted that to the extent that the variations were made with the agreement of the second defendant then s 26(1)(e) provided an alternative source of power for those variations and it was not tainted by the allegedly invalid review. 66In Lockwood v The Commonwealth (1954) 90 CLR 177 Fullagar J said: "It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power." 67In my opinion, the review was conducted according to law and Issue 3 does not arise. 68Alternatively I find that the variation was made pursuant to the power conferred by s 26(1)(e) of the Act and was valid for the following reasons: (a) the first page of the instrument of variation of the Licence states that the variation is made "in accordance with cl 26(1)(b) and (e) of the Act; (b) the officer of the second defendant signed the front page of the variation instrument under the words "Acceptance of the variations by Snowy Hydro Limited is acknowledged"; (c) the variation instrument does not set out which of paragraphs (b) or (e) is relied upon to make each individual amendment to the Licence. This demonstrates that every individual amendment made to the Licence by the variation instrument was made in reliance upon both paragraphs 26(1)(b) and (e) of the Act; (d) in its submission on the variations proposed the second defendant stated that it "supports the variations to the Snowy Water Licence as proposed by the NSW Office of Water following completion by the office of the five year review of the Snowy Water Licence." Conclusion 69In my opinion, the summons should be dismissed. At the request of the parties I reserve the question of costs. In the event the parties are able to reach agreement as to the appropriate costs orders, short minutes of the agreed orders should be forwarded to my Associate within 14 days of this date. Otherwise each of the parties should serve written submissions as to costs within 21 days of this date. Each of the parties is to have a right to reply to the other party's submissions within 7 days of receipt. Orders 70I make the following order: 1. Summons 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. Decision last updated: 06 July 2011