Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Linfox Australia Pty Limited [2014] NSWIRComm 1013 Hearing dates: 02/09/2013, 04/09/2013, 24/09/2013, 10/04/2014, 21/05/2014 Decision date: 12 June 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Fatigue breaks prescribed by the Road Transport (Vehicle and Driver Management) Regulation 2005 are unpaid breaks for the purposes of the Transport Industry - General Carriers Contract Determination. Catchwords: TRANSPORT INDUSTRY - Industrial dispute - Failure to pay pursuant to increase in rates in Contract Determination - claimed offset - fatigue breaks - whether fatigue breaks 'interruption to work' within meaning of the Determination - held, fatigue breaks 'interruption to work' and therefore unpaid. JURISDICTION - asserted want of jurisdiction - claim that contracts of carriage not identified - jurisdictional objection one of form rather than substance - jurisdiction found. OFFSETS - claim that overpayment may be offset against underpayment - mixed question of fact and law - not able to be determined as evidence insufficient PRACTICE AND PROCEDURE - parties presenting only part of a case - vice of decisions on preliminary issues - efficient use of Commission's resources Legislation Cited: Industrial Relations Act 1996 ss.130, 175, 332(2) Road Transport (Vehicle and Driver Management) Act 2005 Road Transport (Vehicle and Driver Management) Regulation 2005 Cases Cited: Amcor Limited v CFMEU (2005) 222 CLR 241 Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Ceccato v Almona [2007] NSWIRComm 318 Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412 Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359 King Gee Clothing Company Pty Ltd v The Commonwealth (1945) 71 CLR 184 Kirk v Industrial Court (NSW) 2010 239 CLR 531 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 Poletti v Ecob (No 2) (1989) 31 IR 321 RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4 Ray v Radano (1967) 67 AR(NSW) 471 Category: Principal judgment Parties: Transport Workers' Union of New South Wales - Applicant Linfox Australia Pty Limited - Respondent Representation: McCabes Lawyers - Respondent File Number(s): IRC 713 of 2013 DECISION 1This matter comes before the Commission as an industrial dispute notified pursuant to s.130 of the Industrial Relations Act 1996 ('the Act') by the Transport Workers' Union of New South Wales. ('the applicant') 2The matter was the subject of conciliation in 2013. Ultimately that conciliation did not resolve the matter and it was set down for arbitration. 3The centre of the dispute is a claim by the applicant that its members have been underpaid. However, the matter was not brought before the Commission as a claim for payment but rather as, in practical terms, a claim for interpretation pursuant to s.175 of the Act. 4The decision by the applicant to approach the matter in this way gave rise to a submission by the respondent that no jurisdiction lay in the Commission to determine the matter in the way the applicant sought. The argument on jurisdiction was the subject of discrete submissions and the Commission reserved its decision on the point, continuing to hear the balance of the matter. I return to, and decide, the jurisdictional question below. Substance of argument 5In short compass, the substantive issue before the Commission was this: the applicant contended, and the respondent conceded, that the respondent had not met its obligations to increase the rates of pay of 10 contract carriers under the Transport Industry - General Carriers Contract Determination ('the Determination') for a period between 10 September 2012 and 21 May 2013. In other words, for a period of about seven months the respondent had failed to pass on to contract drivers increases in the rates of pay in the Determination that it was lawfully bound to pay to them. 6Conceding that it had an obligation to pay certain monies to contract drivers pursuant to the Determination for the identified period, the respondent however asserted that it was entitled to offset against that obligation certain monies which, it claimed, it had overpaid to the drivers for reason that it had paid the drivers, during the relevant period, for fatigue breaks which, it said, should properly have been unpaid breaks. 7Two immediate questions arose from this contention. 8The first, of course, was whether the fatigue breaks were properly regarded as paid or unpaid breaks. 9The second was this; if the breaks were held to be properly characterised as unpaid breaks, whether the respondent had a right to offset the monies it undoubtedly owed to the contractors under the Determination by the amounts said to be overpaid if the breaks were properly regarded as unpaid breaks. That question turned on premises articulated in the line of authority beginning with Ray v Radano (1967) 67 AR(NSW) 471. It is a question of mixed fact and law. I return to this issue below. Facts 10The parties had helpfully compiled an Agreed Statement of Facts. 11Relevantly, those facts as they were advanced to the Commission were as follows. 12The respondent relevantly engaged 10 drivers as contract carriers within the meaning of section 309 of the Act. The drivers were engaged pursuant to the Determination. 13The rates in the Determination were varied by consent on 28 August 2012 with an effective date of 10 September 2012. 14The respondent had an obligation to increase the rates of the drivers in accordance with the variation. It failed to increase the rates of the drivers on 10 September 2012. It did increase the rates of the drivers on 21 May 2013. It did not back pay the drivers for the failure to increase their rates on 10 September 2012. 15In the period during which the increased rates were not passed on, the respondent paid for time spent by the drivers in taking fatigue breaks. These fatigue breaks were taken in accordance with the requirements of the Road Transport (Vehicle and Driver Management) Regulation 2005. ('the regulation'). 16As of 5 April 2013, the respondent ceased paying for the time spent on fatigue breaks. 17There then followed some material concerning trips taken outside of the County of Cumberland. In the end result that matter fell away and does not require determination by the Commission in this decision; I do not set out the material here. The jurisdictional objection 18Before addressing whetter the substantive issue need be determined, I necessarily address the jurisdictional issue. 19The respondent argued that there was no jurisdiction in the Commission to hear this matter. As I said to the parties on the day of hearing, to agitate such an argument seemed in a practical sense counterproductive, as the parties had an evident wish that the fundamental substantive question between them be resolved by the Commission. 20If it were the case that the Commission were to find that it had no jurisdiction, the matter would remain unresolved, unless further proceedings were instituted at the expense of cost and delay, including unwarranted use of the Commission's limited time. 21It would also appear that if the jurisdictional argument prevailed, and the Commission were obliged to bring the proceedings to an end, that would leave the respondent with an admitted obligation to pay drivers sums that it had not paid under what is delegated legislation, the Determination. If that were so the respondent would appear to be liable immediately to make payments to those drivers and additionally be exposed to potential claims for interest and penalty. 22These matters were raised with solicitors for the respondent, but the respondent indicated that it was determined to press on with its jurisdictional argument, on the basis, as Mr Baroni put it, that if the Commission did not have jurisdiction, it did not have jurisdiction. 23The jurisdictional argument was framed in this way. 24The applicant was necessarily, it was said, asserting that section 332(2) of the Act has been breached. 25From that it was pointed out, correctly, that the only part of section 332(2) which applies to contract carriers is section 332(2)(c). That subsection applies where a relevantly registered Association becomes aware of an industrial dispute that might lead or has led 'to bailees of public vehicles or carriers under contracts of carriage being in breach of those contracts.' 26The proposition that only subsection 332(2)(c) could here apply was, very properly, conceded by Mr Warnes for the applicant. 27The respondent then submitted that the applicant had not identified which "contracts of carriage" had been breached or how they had been breached, and that, as a consequence, the application under section 332 did not enliven the Commission's jurisdiction. As the respondent's written submissions expressed it, without identifying the contracts of carriage that have been breached and how they have been breached the Application under section 332 is deficient. 28In my view the jurisdictional objection is misconceived. The applicant can properly in my view on the evidence before the Commission point to an industrial dispute that has led 'to ... carriers under contracts of carriage being in breach of those contracts' and accordingly the Commission's jurisdiction is enlivened. 29True it is that the applicant's notification is deficient on its face in setting out in precise terms the specific contracts of carriage said to have been breached. 30However, the respondent did not assert that there were simply no contracts of carriage involved at all. 31On the contrary, as Mr Baroni for the respondents expressly accepted, there is no doubt that the drivers concerned were and are engaged under a contract of carriage by the respondent, and are covered by the Determination: transcript, p.12, and again at transcript pp 43-44: "I think I did in some debate with Mr Warnes made a discussion that perhaps one of my propositions were that there was not a contract of carriage. Just to clear that up there always has to be a contract of carriage." 32That is in any event apparent on the evidence, both from the agreed statement of facts proffered by the applicant and respondent jointly and from the affidavit of Mr Verlander tendered by the respondent. 33The Commission is of course not entitled to exceed its jurisdiction: Kirk v Industrial Court (NSW) 2010 239 CLR 531. However, where the jurisdictional facts are sufficiently advanced to the Commission to enable its jurisdiction to be enlivened, jurisdiction lies. 34Once it was accepted by both parties that there were, firstly, contracts of carriage in place; secondly, that the sums of money required to be paid pursuant to those contracts were not in full paid; thirdly, that that is a matter of contest between the drivers and the respondent; and fourthly, that an industrial organisation is aware of that dispute, there was simply no need for any more precise identification of the specific contracts to be made in order for the Commission to have jurisdiction. More detail would be required to make orders for payment, but orders of that kind are not presently sought, and that detail is a question of evidentiary fact, not jurisdictional fact. 35It follows that the jurisdictional objection is one of form rather than of substance, and the wisdom of using time and resources to agitate it questionable. The Commission's powers under s.175 36It is clear that the powers given the Commission under s.175 may be exercised only 'for the purpose of exercising [the Commission's] functions in a matter before it', in this case the powers set out in s.332 of the Act: Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67]; Health Services Union v Director-General, Department of Health (NSW) [2010] NSWIRComm 42; (2010) 193 IR 359 at [57] - [58]. 37I am satsified that the Commission has in this case powers to provide, as it is asked to here, an interpretation of a clause in an industrial instrument pursuant to s.175, as that is patently a necessary step to take for the purpose of exercising its powers under s.332. The substantive question 38I now turn to the substantive question before the Commission. 39The contract carriers are drivers of heavy vehicles, and accordingly they are required to comply with the provisions of the Road Transport (Vehicle and Driver Management) Act 2005. ('the RMS Act') Section 11B(2)(d) of the RMS Act provides for regulations, to which I have referred above, governing periods that drivers of heavy vehicles spend working and resting. 40Pursuant to r. 64 of the regulation, carriers must take rest breaks, characterised in the industry and in this decision as 'fatigue breaks', after certain periods of 'work time'. 41The regulation defines 'work time' at r. 57 of the regulation as: (a) the time that the driver spends driving a regulated heavy vehicle, whether or not it is on a road or road related area, and (b) any other time that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including (but not limited to) the following: (i) loading or unloading the vehicle, (ii) inspecting, servicing or repairing the vehicle, (iii) inspecting or attending to the load on the vehicle, (iv) attending to the passengers of a bus, (v) cleaning or refuelling the vehicle, (vi) performing marketing tasks in relation to the operation of the vehicle, (vii) helping with, or supervising, an activity mentioned in subparagraphs (i)-(vi), (viii) recording information, or completing a document, in accordance with this Part or otherwise, in relation to the operation of the vehicle. 42Importantly, 'rest time' is defined in r. 58 of the regulation as 'time that is not work time of the driver.' Work time involves doing a number of other things than driving - for example, 'performing marketing tasks in relation to the operation of the vehicle', but 'rest time' is expressly not 'work time.' 43The Determination by which the requirement to pay contract drivers is established sets out two relevant kinds of payment that must be made. 44A contract driver must be paid, while driving, the rate of remuneration per kilometre provided at Schedule 1 to the Determination as being the running rate applicable to the contract driver's vehicle for the contract distance; Determination, subclause 16(1)(a); and, while standing, the rate of remuneration provided in Schedule 1 as the standing hourly rate applicable to the driver's vehicle for the contract time calculated to the nearest half hour; Determination, subclause 16(1)(b). There is no obligation to pay a driver other than on these two bases. 45It is the second of these bases for payment here at issue. 46A driver whose truck is standing is to be paid, and is only to be paid, 'for the contract time'. What then is 'contract time'?' 'Contract time' is defined at Clause 1 of the Determination as follows: "'Contract time' means in relation to a contract of carriage the time during which the Contract Carrier has necessarily been engaged in performing the contract of carriage, namely, the time necessarily occupied in travelling from the starting place to a place of delivery together with any time necessarily occupied in returning to the starting place, or, subject to the Contract Carrier observing any instructions given by the Principal Contractor under clause 6 (26) in the event that the Principal Contractor does not require the Contract Carrier to return to the start starting place, any time which in the opinion of the Principal Contract the Contract Carrier would have been necessarily occupied in travelling if he had returned to the starting place but does not include the time of a delay (other than a delay for which the Contract Carrier is not reasonably responsible), the time of a delay not promptly notified by telephone or radio to the Principal Contractor, the time lost because of breakdowns or accidents or the time taken by the Contract Carrier for meal breaks or any other interruption to work." (emphasis added) 47The question before the Commission crystallises to this: are the fatigue breaks properly part of 'contract time', which is paid time, or are they not? 48The matter before the Commission therefore resolves itself into a question of statutory interpretation. Interpretation of terms of an industrial instrument 49I turn briefly to the proper approach to construction of an industrial instrument. 50The High Court has recently and comprehensively stated the principles of statutory construction: Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412; [2012] HCA 56. 51Nothing there said modifies the principles set out by the Full Bench of this Commission in Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158, which also establishes that the canons of construction there identified apply equally to industrial instruments. 52The basic and overriding principle is that construction of any provision must involve a purposive approach: Certain Lloyd's Underwriters loc cit at [25]; Fire Brigade Employees loc cit at [42]. That step must involve the consideration of the meaning of a provision in the context of the instrument as a whole: Certain Lloyd's Underwriters loc cit at [23], [88]. 53An industrial agreement is to be understood in the light of its industrial context and purpose and must have regard to the industrial purpose of the agreement, and the commercial and, I emphasise for the purposes of this decision, legislative context in which it applies: Amcor Limited v CFMEU (2005) 222 CLR 241 at [2], [13], [30]. 54So far as this matter turns on the terms of the regulation, the principles relating to the construction of regulations are of course the same as those applying to the construction of the relevant enabling legislation: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398; King Gee Clothing Company Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195. The question for determination 55At the outset, while there was some debate over the proper reading of the definition of 'contract time' as it is set out above, it is in my view inescapable that the definition reads in the following way, removing superfluous words for clarity: 'Contract time' ...does not include the time of a delay... or the time taken by the Contract Carrier for meal breaks or any other interruption to work.' 56No other construction is grammatically or logically available. 57In other words, contract time - for which payment is to be made - does not include time taken by the carrier for meal breaks or for 'any other interruption to work'. 58The question for resolution set out above may then more accurately be articulated in this way: are the fatigue breaks prescribed by the regulation excluded from the definition of 'contract time' because they fall under the words contained in that definition, 'meal breaks or any other interruption to work'? 59It is apt here to observe that the Determination at clause 5 makes provision for a mandatory meal break styled a 'lunch break'. The Determination prescribes that 'each carrier shall take a half hour lunch break on each day' that he is carrying out the work with which this matter is concerned. That lunch break is, by the effect of the definition of contract time in Clause 1, an unpaid break. 60In support of the proposition that the fatigue breaks were paid breaks, the Applicant pointed to the consideration of the term 'contract time' under the Determination undertaken by a Full Bench of the Commission in RJ Enterprises (Aust) Pty Ltd v Booth Transport Pty Ltd [2012] NSWIRComm 4. There the Full Bench held: "Accordingly, what must be considered in relation to a contract of carriage is the time during which the Contract Carrier has necessarily been engaged performing it. This will be the time necessarily occupied in travelling from the starting place to a place of delivery, being, again, any place of delivery, together with any time necessarily occupied in returning to the starting place. This definition also focuses attention on the performance of the contract of carriage. Such a contract has as its purpose the transportation of goods, but the time during which a carrier will be necessarily so engaged must accommodate everything which the carrier is required to carry out to enable the goods to be transported." 61The Full Bench went on to hold: "a contract of carriage extends beyond the mere movement of goods after they have been loaded until arriving at the place of delivery." 62The applicant argued that 'contract time' is the time spent satisfying all the obligations of the contract of carriage, which includes the obligations imposed by the Determination. This will include, it was submitted, not only obligations such as driving the vehicle, loading, and unloading, but also ancillary (but necessary) obligations such as filling in paperwork, waiting in queues, and complying with statutory requirements. In short, it was said, everything that a Contract Carrier is required to do under the Determination to discharge his obligations, namely, the transportation of goods from one place to another, attracts the remuneration payable under clause 16. 63The applicant submitted that this interpretation is supported by the wording of clause 16, that is, that unless a deduction or adjustment is provided for in the Determination, a contract carrier should be paid for the time spent performing the contract. That proposition is in my view necessarily correct. The question here is whether the Determination does provide a deduction or adjustment. 64The applicant made the point that the fatigue breaks are mandatory, and that therefore a driver cannot carry out a contract lawfully without observing the fatigue breaks. 65It submitted that on that basis, the definition of 'contract time' in the Determination, that is, time 'which the Contract Carrier has necessarily been engaged in performing the contract of carriage' embraced prescribed fatigue breaks. 66The applicant advanced a further aspect of this reasoning in oral submission: 'We say that it flows that a fatigue break is part of work because Linfox has directed the work to be performed with a fatigue break included.... Linfox has instructed or directed its contract carriers to perform work, which is what this dispute is all about - the definition of work - by taking a fatigue break.' (transcript, p 37) Public interest submission 67The applicant advanced a supporting submission in these terms: although the regulation does not expressly provide for payment to be made to contract carriers, it contains powerful obligations that are placed on those that engage in business in the road transport industry. The extent and purpose of those obligations demonstrates to the Commission that public policy dictates that all that can put in place to prevent fatigue should occur. This would, and should, include an incentive to comply with the Regulation by way of payment for fatigue breaks. (emphasis added) 68Having made this submission, the applicant expressly disavowed this proposition being determinative of the issue at hand. 69It is beyond doubt that public policy dictates that all that can put in place to prevent driver fatigue should be put in place, as the applicant has submitted. That ultimately is the function of the Parliament, which passes Acts and empowers regulations to be made to give effect to public policy objectives. The Commission's function is to, at first instance at least, determine what it is that those Acts and regulations actually say. That is the function of the present decision. It is not open to the Commission to recast the provisions of Acts and regulations to achieve public policy objectives, however reasonable those objectives may be. Consideration 70As the applicant correctly points out, the Full Bench in RJ Enterprises supra held that 'the time during which a carrier will be necessarily engaged on a contract must accommodate everything which the carrier is required to carry out to enable the goods to be transported.' In so holding, the Full Bench certainly did not hold, and could not have held, that paid contract time included time taken for the compulsory lunch break. That is because Clause 1 of the Determination expressly provides that that time is excluded from contract time. The Full Bench did not make any observation in terms about mandatory fatigue breaks. 71It is apparent that a driver carrying out a contract of carriage is intended to be paid for a range of matters other than actually driving. Those matters are set out in the Determination. 72It is also apparent that a driver is not to be paid for taking the mandatory lunch break, even though he has to take it in order to carry out the contract, and even though it adds to the overall time of the day's work. Even though the taking of a meal break is necessarily something 'which the carrier is required to carry out to enable the goods to be transported', to use the words of the Full Bench, it is expressly not and cannot be regarded as 'contract time', for reason of the express provision of the Determination that it is not 'contract time'. 73The meal break is distinguishable from all the other things the carrier must do in this one significant way, however; during his lunch break the driver is not required to work, whether it be driving, loading, cleaning, refuelling, inspecting, marketing or recording information. He is free to have lunch, go to sleep, read a newspaper, as he wishes. He cannot be asked to work. 74The meal break is accordingly, in the words of the Determination, an 'interruption to work'. 75 In my view the compulsory fatigue breaks are of precisely the same nature as the meal break and must be treated in the same way under the Determination. 76In precisely the same way as the lunch break, a driver must take a fatigue break and cannot complete the contract of carriage without so doing. The taking of a fatigue break is necessarily something 'which the carrier is required to carry out to enable the goods to be transported.' 77However, like the lunch break, the fatigue break is distinguishable from all the other things the carrier must do to carry out a contract of carriage in that during his fatigue break the driver is simply not required to work, whether it be driving, loading, cleaning, refuelling, inspecting, marketing or recording information. He is necessarily relieved from the obligation to carry out any work; indeed he cannot be asked to carry out work. 78The fatigue break is accordingly an 'interruption to work' as those words are used in the Determination. An 'Interruption to work' is not, according to Clause 1 of the Determination, to be contract time and is not to be paid time. 79The applicant puts that the respondent 'directs' the drivers to take fatigue breaks. That is technically so, although the true position is that the RMS Act requires it. In the same way the respondent 'directs' drivers to take lunch breaks. That does not render the respondent responsible for paying for those lunch breaks, because the Determination says otherwise. Nor does it in my reading of the Determination make the respondent responsible for paying for a fatigue break. 80In my view the fatigue breaks are, as the RMS Act and the regulation and the Determination presently stand, necessarily unpaid breaks. Whether that is an intended consequence is not for the Commission to speculate; it is, however, the only way that the Determination can in my view correctly be construed. These proceedings 81 It was put by the parties that a decision upon whether breaks were paid or unpaid would resolve the issue between the parties. It certainly does not, however, resolve the whole of the matter as it has been agitated before the Commission. 82That is because, as I made I hope clear to the respondent in the course of hearing, the proposition advanced by the respondent that it is entitled to offset the payments it made to drivers for time taken on fatigue breaks is not made out on the evidence before the Commission. 83I have referred above to the fact that the application of the principles in Ray v Radano loc cit is a question of mixed fact and law. The fact that monies were paid, even overpaid, is not sufficient of itself to entitle an employer to offset those monies against an underpayment. In some cases it may; in some it may not: Poletti v Ecob (No 2) (1989) 31 IR 321; Ceccato v Almona [2007] NSWIRComm 318. 84There must be evidence of the way in which the monies were characterised when they were paid, and the purpose for which they were paid. That evidence is not before the Commission. Mr Verlander's affidavit does not carry off the evidentiary burden the respondent has in order to establish a right to offset payments against underpayments admittedly made pursuant to the Determination. 85It may not matter: as Mr Warnes for the applicant put at the end of the proceedings: Commissioner, I just thought I'd mention this and I can't say this with any certainty but my hope will be that whatever decision you hand down here obviously depending on any appeal by either party would solve this matter. No matter which way it went, I would hope that and if TWU has a relationship with Linfox, this issue of fatigue breaks has been adjudicated on so to speak, then the parties can go back and everyone knows what their obligations are then. The only element of contention we really have is the payment of these fatigue breaks so we hope that you wouldn't have to do anything, that it probably would be a final decision. (transcript, pp 68-69) 86It may be that the parties can determine between themselves whether an offset is lawfully available. I hope so. But I am bound to say that the necessity to give an incomplete decision in this matter is an example of the unsatisfactory result that can arise from parties electing to run part of a case before the Commission. Such a course is rarely efficient and can, not infrequently, lead to duplication and indeed error: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Liverpool City Council [2014] NSWIRComm 17 at [8]. 87I hope that the parties can, as I say, deal with this aspect of the matter; if not, the Commission will, of course, determine the question if it is brought before it. Conclusion and interpretation 88In my view, the proper interpretation of Clause 1 of the Determination is that the phrase 'other interruptions to work' there appearing includes the fatigue breaks required by the regulation. It follows that the fatigue breaks are, as the Determination presently stands, unpaid breaks. PETER NEWALL Commissioner 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: 12 June 2014