Land and Environment Court New South Wales Medium Neutral Citation: Flip Out - Trampoline Arena Trading Pty Limited v Penrith City Council [2013] NSWLEC 1229 Hearing dates: 25 - 26 November 2013 Decision date: 28 November 2013 Jurisdiction: Class 1 Before: Morris C Decision: In matter No. 10804 of 2013 see para 49. In matter No. 10805 of 2013 the appeal is upheld in part. Catchwords: Development application - Order - Building occupied without consent; fire safety Legislation Cited: Environmental Planning and Assessment Act 1979; Penrith Local Environmental Plan 2010; Environmental Planning and Assessment Regulation 2000 Texts Cited: Penrith Development Control Plan 2010 Category: Principal judgment Parties: Flip Out - Trampoline Arena Trading Pty Limited (Applicant) Penrith City Council (Respondent) Representation: Mr A Pickles (Applicant) Mr M Seymour (Respondent) Mr J Grassi Joseph Grassi & Associates Ms J Wauchope Gadens File Number(s): 10804 of 2013 10805 of 2013 Judgment 1Flip Out Trampoline Arena Trading Pty Ltd (Flipout) had occupied a former car sales yard premises at 80 to 82 Mulgoa Rd Jamisontown (site) as a recreation facility. It had not obtained development consent from the Council prior to its occupation of the site. In response to notices issued by the Council, Flipout lodged Development Application DA13/0441 seeking consent to use the site as an indoor recreation facility. Penrith City Council refused consent and FlipOut is appealing that decision. (Matter No. 10804 of 2013) The Council has also issued an Emergency Order No. 1 under the provisions of s121B of the Environmental Planning and Assessment Act 1979 (the Act) requiring the cessation of use of the site because consent had not been obtained and its concerns in relation to public safety, in particular, fire safety. That Order is also the subject of an appeal, Matter No 10805 of 2013. 2The proceedings, including an associated Class 4 application have been expedited by the Court. The parties agreed that the Class 1 matters be heard concurrently with evidence in one being evidence in the other. The site and its context 3The site is situated on the eastern side of Mulgoa Road and also has a secondary frontage to Regentville Road. It is immediately surrounded by commercial and industrial development with residential development located on the opposite side of Mulgoa Road. The site area is the approximately 1.47 hectares and contains a former car sales and repair building surrounded by paved parking and landscaped areas. The building on the site has a ground floor footprint of approximately 1,843 square metres and includes a mezzanine with a floor area of approximately 563 square metres. 4An outdoor trampoline jumping structure with adjacent seating area has been erected in the north western corner of the site. That structure is not physically connected to the main building in any way. An outdoor foam pit and bike ramp have also been constructed adjacent to the northern and western facade of the building below an awning attached to the main building. Within the building, a further two trampoline areas have been installed with a workshop, storerooms, activity rooms, cafe areas, party rooms and a seating area also located within the building. Background and the proposal 5The development application was lodged with the Council on 14 May 2013, and was subsequently amended to seek consent to use the site as an indoor recreation facility incorporating the following: * An outdoor trampoline jumping structure with adjacent seating area * An outdoor foam pit and bike ramp * Main indoor trampoline jumping structure and foam pit * Two Under 7's trampoline jumping structures with adjacent parent seating areas, customer amenities and party room * Two cafes with associated food preparation areas and storerooms * Workshop and store * Mezzanine floor, containing a kids' cinema, learning area, audiovisual room, Xbox room and toilet facilities * At grade car parking and driveway areas, providing a total of 321 formalised car parking spaces * Addition of fire escape doorways. 6No construction activities were proposed as part of the development application 7The Council notified adjacent property owners and occupiers of the development application in May and June 2013. It received submissions and complaints in relation to the operation. The issues of noise impact from loud music, children and vehicle noise on the site; structural integrity of the trampoline structures based on the maximum number of children using each trampoline; external lighting impacts given the orientation of existing lighting towards residential properties to the west and signage were raised in that correspondence. 8Officers of Fire & Rescue NSW inspected the site on 13 September 2013 and identified a number of potential deficiencies that were unable to be rectified by an Emergency Order 6. These issues related to the failure to display annual fire safety certificates and a fire safety schedule, inaccessible fire hydrants not maintained in accordance with the relevant standard, hose reels not maintained, failure to provide portable fire extinguishers in appropriate locations and to maintain those that were provided, inadequate number of exits within the building and where exits were provided they did not meet the relevant Australian Standard. 9The Council has also undertaken a number of inspections of the site in its assessment of the application, in response to the advice from Fire & Rescue NSW and to ascertain compliance with the Building Code of Australia (BCA). Because consent had not been granted and the council had identified a range of matters that do not meet fire safety standards it issued Emergency Order 1 to Flipout on 4 October 2013. 10The terms of the Order required Flipout to cease using the premises known as the Flip Out Trampoline Arena Penrith for the purpose of an (sic) trampoline centre, entertainment venue, canteen and training facility by 5pm on Friday 4 October 2013. The reasons for the emergency order were stated as follows: (1)Development consent had not been granted for the use of the site has a trampoline centre, entertainment venue, canteen and training facility. Furthermore, a development consent was refused for the Flip Out Trampoline Arena at 78 Mulgoa Rd, Jamisontown on 26 July 2013. (2)Fire and Rescue NSW inspected the premises on 13 September 2013 and provided Council with a written report in accordance with section 118L(1) of the Environmental Planning and Assessment Act 1979. The report observed the following issues (a)The fire hydrant booster assembly is inaccessible and not maintained in accordance with the standard. (b)The fire hydrant booster systems, internal attack hydrants are not accessible due to the construction of trampoline structures. (c)Fire hose reels are not maintained with the requirements of AS1851-2012. (d)Portable fire extinguishers are not maintained in accordance with the requirements of AS1851-2012. (e)The building contained an inadequate number of exits for the intended use. (f)Travel distances within the building are excessive and not in accordance with the requirements of Part D1.4 of the Building Code of Australia (g)Exit lighting is missing or non-operational contrary to the requirements of Part E4.5 of the Building Code of Australia (h)There are inadequate directional exit signs to allow occupants to evacuate safely in accordance with the requirements of AS2293.1-2005 (i)All doors that serve as required exits were either sliding or did not open in the path of travel in accordance with the requirements of Part D2.20 of the Building Code of Australia (j)All doors that serve as a required exit do not have panic bars installed in accordance with the requirements of Part D of the Building Code of Australia for an entertainment venue (3)The combustible materials in the building are likely to have life threatening consequences in the event of a fire, due to their potential toxicity. This is particularly the case for foam and plastic products. (4)The premises at 80 and 82 Mulgoa Rd Jamisontown is likely to constitute a life threatening hazard or a threat to public health or public safety 11That Order is the subject of the appeal and the use has continued to be conducted on the site, contrary to its terms. The planning controls 12The site is zoned IN2 Light Industrial under Penrith Local Environmental Plan 2010 (LEP). Within that zone, a recreation facility (Indoor) is permissible with consent whereas a recreation facility (outdoor) is prohibited. The objectives of the IN2 zone are: + To provide a wide range of light industrial, warehouse and related land uses. + To encourage employment opportunities and to support the viability of centres. + To minimise any adverse effect of industry on other land uses. + To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. + To support and protect industrial land for industrial uses. + To promote development that makes efficient use of industrial land. 13The site is identified on the Scenic and Landscape Values Map and accordingly the provisions of clause 6.5 of the LEP apply to the application. The provisions of that clause state: Protection of scenic character and landscape values (1) The objectives of this clause are as follows: (a) to identify areas that have particular scenic value either from major roads, identified heritage items or other public places, (b) to ensure development in these areas is located and designed to minimise its visual impact. (2) This clause applies to land identified as "Land with scenic and landscape values" on the Scenic and Landscape Values Map. (3) Development consent must not be granted for any development on land to which this clause applies unless the consent authority is satisfied that measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development from major roads, identified heritage items and other public places. 14Penrith Development Control Plan 2010 (DCP) applies to the site and of particular relevance to the application is a requirement for a 20 m building setback to achieve the requirements of clause 6.5 of the LEP. 15Clause 93 of the Environmental Planning and Assessment Regulation 2000 (Regulation) relates to change of use where no building works are proposed. That clause states: (1) This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building. (2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building's proposed use. (3) Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building's proposed use. Note. The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent. (4) Subclause (3) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4). (5) The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act. 16Clause 94 of the Regulation states: (1) This clause applies to a development application for development involving the rebuilding, alteration, enlargement or extension of an existing building where: (a) the proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or (b) the measures contained in the building are inadequate: (i) to protect persons using the building, and to facilitate their egress from the building, in the event of fire, or (ii) to restrict the spread of fire from the building to other buildings nearby. (c) (Repealed) (2) In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia. (2A), (2B) (Repealed) (3) The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act. The issues 17The contentions in the case are whether the outdoor component of the use is a separate, prohibited use; whether sufficient information has been provided to assess the application; whether adequate fire safety provision is made in the building for its use as a recreation facility; whether the amenity of neighbouring properties will be adversely affected by the development and whether the proposal minimises visual impacts. 18The applicant made a series of amendments to the application during the course of the hearing that provided additional information in relation to its operations, a draft Plan of Management (POM), relocated the external trampoline facility and tendered further amended plans that deleted the use of a number of areas and introduced an accessible party room on the ground floor level of the building. The council did not oppose the changes nor seek costs pursuant to s97B of the Act however did raise the issue for consideration at a further time, saying the changes were not minor. The applicant says the changes are minor. This is not a matter that requires my determination. 19The result of those amendments has been that a number of the council's contentions, including contention 1, the categorisation of use, have been resolved. It is now agreed that the use of the whole of the site is for the purposes of recreation facility (indoor), provided that any consent issued is conditional on the trampoline being relocated in the area to the immediate north of the building in the area identified as parking spaces 123-128 and marked on the plan, Exhibit O. Similarly contention 6, which relates to the visual impact is addressed as the structure is no longer located within the 20m front building setback to Mulgoa Road. 20In addition, in an attempt to address the Council's contentions that relate to fire safety and respond to the Order, the applicant has undertaken work at the site. As a result of that work, a number of the particulars in these contentions have the addressed however, it is the Council's position that the building remains unsafe. In response to additional information prepared by the experts in the appeal and provided by the applicant, the council agrees that many of the further particulars can be addressed through consent conditions, in particular in finalisation of the POM, restrictions on the hours of use of the outdoor trampoline facility, disabled access and signage. The evidence 21The Court undertook a view of the site at the commencement of the proceedings. It is agreed that much of the work detailed in the Statement of Facts and Contentions had been undertaken in recent times however, additional works are still required. The experts explained the extent of work undertaken to address fire safety and what remained to be completed, including the areas that remain in dispute. 22Mr Ralph Williams, a structural engineer, prepared an expert report and identified particular aspects of the recommendations contained within that report whilst the Court was on site. Mr Williams was not required for cross-examination. The implementation of those recommendations is required by the council and addressed through consent conditions. 23Mr Robert Valades and Mr Russel Grove provided expert evidence on BCA and fire safety issues for the applicant with Mr Colin Wood providing evidence for the council. It is common ground that, in accordance with the provisions of Clause 93 of the Regulation, the building must comply or be capable of complying with the Category 1 fire safety provisions applicable to the building's proposed use. 24Mr Valades and Mr Wood agree that the deletion of the theatrette from the application addressed their disagreement in relation to classification of part of the upstairs area as an entertainment venue. 25The three experts prepared a supplementary joint report, Exhibit 7, which details further areas of agreement as to the works that are required to be undertaken to the building to address the requirements of clause 93 of the Regulation. However, rather than a further report being prepared as suggested in paragraph A of that exhibit, it was agreed that Mr Grove should prepare that report and provide details and a plan indicating the extent of that work. 26Mr Wood and Mr Grove agree that the Category 1 fire safety provisions are defined in the Regulation and relate to the following provisions of the BCA, namely EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One; that only Volume One applies to this building; that only the requirements of EP1.3 relating to hydrants and EP2.2 relating to the automatic shutdown of the ducted air conditioning system apply and all other performance requirements listed in the Category 1 fire safety provisions do not apply. 27They agree that a fully compliant hydrant system in accordance with AS2419.1 (2005) would satisfy EP1.3 and the installation of smoke alarms in accordance with NSW Table E2.2b would comply with EO2.2 in requiring a shutdown of the mechanical air handling system. 28Mr Wood says that the "Big Ticket Items" are the installation of the fire and smoke alarms and hydrants and that the use of the site should cease until such time as all of the outstanding works are undertaken wheras Mr Valades and Mr Grove say that, based on a risk assessment, the works should be done as soon as possible however the use could continue. 29Mr Grove says there is not a direct relationship to fire safety, and that if you could trust management in the role of evacuating the facility in the event of a fire, there would be no problem provided the works were done as soon as possible. He says the building in its current form is not unsafe, that hydrants aren't about safety, but rather, the protection of the building structure. Mr Valades says there is a hydrant system within the building with four different hydrant locations that had been recently upgraded and whilst technically those hydrants do not comply with the Australian Standards, the hydrants are available. All experts agreed that the work to install the fire and smoke alarms could be completed within seven to 10 days. 30Mr Wood says that the foam within the pits was of concern in relation to toxicity. He cited a recent fire that had occurred in a similar pit in Victoria and maintains that the foam used within the pit should be treated with a fire retardant and certified as it is a potential threat to persons using the building in the event of the need to evacuate. All experts agreed that the BCA does not provide a specification for fire rating that material. Mr Grove said that it is necessary to compare the risk to the base building. He says that whilst it is possible to treat the foam with a fire retardant he was unsure how enduring that treatment would be. He says that a condition that requires the application of such a retardant was not required and whilst he understands Mr Wood's concern it is more important that the building has a smoke detection system, which provides early warning to customers in the event of a fire. 31All experts agreed that any POM should include a requirement that prevents "hot working" i.e. welding or any activity that would cause sparks or ignition of the foam, to be undertaken when the facility in operational. 32Others areas of agreement between the experts are that an emergency evacuation plan in accordance with AS3745 must be developed for the site and is to be included in the POM. They also agree that access for persons with a disability is generally provided to the ground floor area however, in the event that access is required to the first floor of the building, that access is not available. They agree that a stairway platform lift could be installed, or alternately an intercom is provided at the entry to alert staff. They say this is required at the ground floor level to facilitate purchase of food or tickets. The provision of an accessible party room on the ground floor, also addressed in the POM for bookings should be required. The inclusion of this detail would address the contentions relating to access. 33Expert town planning evidence was heard from Mr Warwick Stinson for the applicant and Mr Robert Craig for the Council. As the council no longer pressed contention 1 the evidence was focused on the issue of the lighting and signage. The experts agree that it is appropriate to impose a condition that requires external lighting to be provided for the safety of customers and staff during the evening period in accordance with the requirements of AS4282 and that the lighting should be orientated so that it does not affect dwellings opposite the site. They also agree that a signage and way finding strategy should be prepared and submitted to the Council for approval and that the current extent of a signage, particularly that attached to the front fence is excessive and should be reduced. Draft conditions have been prepared and are agreed could address these requirements. The conditions 34A number of the draft without prejudice conditions (Exhibit 6) remain in dispute. Due to the changes to the development application made by the applicant during the hearing and the need for expedition, it was agreed that findings in relation to the appeal be made and final conditions be prepared to reflect those findings in the event that the development application appeal is upheld. 35The conditions in dispute are draft conditions 9 and 21 and the timing of the works required by conditions 5, 7, 12-21 and 71. Condition 9 requires that all staff members employed by the facility shall be first-aid accredited. The council has no policy that applies to such a condition but says that because the use is high-risk in terms of injury, this is required in the public interest. It cites the Flipout website note on 17 January 2013 that it has a 0.1% injury rate based on 4,000 visitors with 4 injuries. 36Mr Pickles, for the applicant, says the condition is unreasonable due to the large number of young, casual staff employed at the facility. In accordance with the Draft POM, he says that at all times the centre is operating there will be a minimum of one manager and supervisor on duty and the manager will be first aid trained. Mr Pickles submitted that the applicant would be prepared to extend this to include supervisors. Clause 10 of the POM requires that a supervisor is required for ever 30 jumping patrons, one on the foam pits and 1-2 on the bike/skate pit if in use. 37I do not consider that it is necessary for all staff to hold a first aid certificate. There are many high-risk situations where this is not required, building sites are an example. I do accept that there is a need to ensure the safety of patrons using the centre and consider that, based on the patronage restrictions and staff allocation rates included in the draft POM, only the managers and supervisors need to hold a first aid certificate. 38Condition 21 requires certification of the fire retardant treatment of the foam in the foam pits. The applicant has provided evidence that a fire retardant has been applied to the foam however, Mr Pickles submits that there is no standard against which the material can be certified, that no such certification is required under the BCA and, based on the evidence of Mr Grove, it is better to manage the risk through supervision. This is incorporated in the POM requiring a supervisor to be present at all times the foam pits are being used. 39Mr Seymour, for the council submits that there are laboratories that can certify the material and says that such certification should accord to AS 1530 - Part 2 - Test for flammability of materials. 40Having regard to the expert evidence on this issue, I am satisfied that a condition should be imposed requiring the treatment of the foam with a non-toxic fire retardant, that a supervisor be present at all times when the foam pits are in use and that no "hot work" is undertaken within the premises when the foam pits are being used and that certification is not required. 41The main issue in dispute is the timing of works, particularly the works to complete the agreed fire safety measures. The council submits that, had development consent been obtained prior to occupation of the building, all of this work would have been required to be completed prior to commencement of the use to ensure the building is safe for use and the accords with the Category 1 fire safety provisions required by clause 93(3) of the Regulation and that the fire protection and structural capacity of the building will be appropriate to the building's proposed use (clause 93(2)). For that reason, it is its position that the facility should close until the works are complete and an occupation certificate issued. 42The council takes a similar position in relation to the Order and says that the use should cease until such time as all outstanding fire safety works, structural alterations and noise control device installation have been completed. It also says an emergency evacuation plan in accordance with AS 3745 must be developed for the site before the use can recommence and has provided a list of works to be undertaken. 43The applicant says that the works can be completed within a short timeframe, probably two but maybe three weeks and that any modified Order should not require the closure of the premises, as it is safe in its present form. Findings 44Having regard to the evidence, the amendments made to the development application throughout the hearing and the consequential effect of the relocation of the outdoor trampoline structure addressing the council's contention regarding categorisation of the use, I am satisfied that the use is consistent with the objectives of the IN2 zone. Having regard to the provisions of s79C of the Act I am therefore satisfied that, subject to conditions that address amenity impacts, consent can be granted. Those conditions should include a condition that stipulates no "hot-working" shall be undertaken within the facility when it is operational, that the manager and supervisor on duty shall hold a first aid certificate and accord to the remainder of the conditions included in Exhibit 6. 45The timing of works is dependant on my decision in relation to the Order appeal. In accordance with the provisions of s121ZX of the Act, I may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 46It is common ground that additional works must be undertaken to the building to ensure that it complies with the Category 1 fire safety provisions and for that reason, it is not appropriate to revoke the Order. 47The safety of persons using the premises is of utmost importance. Whilst the applicant has been working towards achieving the requirements of the Act, there remains a list of works to be completed. Mr Grove's evidence that the building is safe is highly reliant on the ability and training of staff to evacuate the building and that; "if you could trust management" there would be no problem as long as the works were done as soon as possible. I note that there is no evacuation management plan for the site. I have no evidence that staff have been trained in evacuation procedures. The Plan of Management is not finalised. The building is compartmentalised with no view available between those compartments or early warning system in place to advise of a potential risk. There are combustible materials in the building that are likely to have life threatening consequences in the event of a fire, due to their potential toxicity. 48For these reasons, I am not satisfied that in the event of a fire at the premises adequate safeguards are in place to protect occupants. Therefore, use of the building should cease until such time as the fire and smoke alarms and hydrants are installed, an emergency evacuation plan is developed, the exit door is fitted to the area of the roller shutter in the northern most portion of the western wall in the over 7 year trampolining area and additional emergency lighting and signage is installed. The remaining works must be completed within three weeks. Conclusion 49Subject to receipt of final conditions that reflect these findings, consent to DA13/0441 can be granted and the parties are to file those conditions by 4pm Monday 2 December 2013. 50In matter No. 10805 of 2013, the Orders of the Court are: (1)The appeal is allowed in part. (2)The Order issued on 4 October 2013 under Item 1 to the Table to s121B of the Environmental Planning and Assessment Act 1979 by Penrith City Council to Flip Out Trampoline Arena Trading Pty Ltd is modified as follows: (a)Cease the use of the premises known as the Flip Out Trampoline Arena, Penrith for the purpose of a recreation centre (indoor) including trampoline centre, entertainment venue, canteen and training facility by 9.30 a.m. Friday 29 November until the works and actions specified in Schedule A have been carried out and evidence of the work having been carried out is been provided to Penrith City Council. (b)Complete those works and actions specified in Schedule B and provide evidence of the work having been carried out is been provided to Penrith City Council by 4pm Friday December 20, 2013. SCHEDULE A (1)A hydrant system complying with AS 2419.1(2005) is to be installed. (2)Smoke alarms are to be installed in the air handling system to comply with NSW table E2.2b of the BCA to shut down the air handling system. (3)A fire and smoke alarm system complying AS 1670.1 (2004) is to be installed throughout the building. Certification including plans detailing the location of detectors is to be submitted from an accredited C10 Fire Safety engineer. A preliminary assessment has identified that approximately 40 detectors are required in the following locations: a. Under 7 year old trampolining area - approximately 15 detectors b. First floor reception viewing area and rooms - 11 detectors c. Over 7 year old trampolining area -6 detectors d. Ground floor café and rooms -4 detectors e. Store room back of house -5 detectors The detectors are to be interconnected to sound a common alarm in accordance with clause 5(c)(ii) of specification E2.2(a) of the Building Code of Australia. (4)An emergency evacuation plan in accordance with AS 3745 must be developed for the site. (5)A suitable exit door is to be fitted in the area of the roller shutter in the northern most portion of the western wall in the over 7 year old trampolining area. The door is to be a minimum width of 1m and must be fitted with and approved panic bar. (6)Works to ensure the building is fully serviced by fire hose reels complying with AS2441(2005). (7)Additional emergency lighting fixtures are to be provided over each stair way, in the main portion of the storage area in the common area of the top floor of the under seven year old area on the ground floor of the under seven year old area and in the café area. The fixtures are to comply with the requirements of AS 2293.1 (2005). (8)Additional directional exit signage is to be provided to highlight the location of the north eastern exit from the over seven year old trampoline area. The fixtures are to comply with the requirements of AS 2293.1(2005). (9)Combustibles in the storage area are to be removed. SCHEDULE B (1)An electronic frequency limiting device to be installed to the sound system to ensure that the amplified background music is set to limit background music to the levels set out in Table 6-1 of the "Operational Noise Impact Assessment: Proposed Trampoline Centre - 78-82 Mulgoa Road, Penrith" prepared by Rodney Stevens Acoustics Pty Ltd dated 24 October 2013 (Report 13200R1, Revision 1). (2)Additional egress to be provided to the external foam pit adjacent to the skate ramp in accordance with AS 1657. (3)Structural works to the external trampoline structure in accordance with the Report of Ralph Williams expert report dated 22 November 2013. Sue Morris Commissioner of the Court Amendments 29 November 2013 - Typographical error - 27 November changed to 29 November 2013 Amended paragraphs: 50(2)(a) 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: 29 November 2013