RESPONDENT 1 (A418/03): National Aikido Association Inc

RESPONDENT 1 (A323/03): National Aikido Association Inc

[2005] VCAT 245

Pursuant to ss75 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders-

1. That the claim of sex discrimination is struck out.

2. That the claim of breach of s98 of the Equal Opportunity Act 1995 contained in particulars of complaint filed with the Tribunal is struck out.

3. Respondent's costs' in relation to the strike out application are reserved. They have liberty to apply for those costs on reasonable notice to the Complainant and the Tribunal.

4. This matter will be listed for a Directions hearing as soon as possible after written reasons have been provided to the parties.

Pursuant to ss75 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders-

1. That the Complaint is strike out except for the claim that the Respondent victimised the Complainant when, during the process of handling her Complaint to the Respondent Mr Savage of the Respondent criticised her for not paying Association membership fees.

2. That the claim of breach of s98 of the Equal Opportunity Act 1995 contained in particulars of complaint filed with the Tribunal is struck out.

3. The Respondent's costs in relation to the strike out application are reserved. It has liberty to apply for those costs on reasonable notice to the Complainant and the Tribunal.

4. This matter will be listed for a Directions Hearing as soon as possible after written reasons have been provided to the parties.

(1) Now, I am in a position to be able to hand down this decision and it is that the complaints are struck out in part. I now give my reasons.

(2)

On 3 February 2003 Ms Besley lodged with the Equal Opportunity Commission, ("the Commission"), a complaint under the Equal Opportunity Act 1995, ("the Equal Opportunity Act"), against Mr Watson and the National Aikido Association Incorporated, ("the Association"). I call this "the first complaint". The Commission referred the complaint for conciliation and conciliation was unsuccessful. Ms Besley requested the Commission to refer the complaint to VCAT. It did so by letter dated 28 August 2003. The proceeding was numbered A323 of 2003 in the Tribunal's records.

(3)

In it's letter of referral the Commission states that the complaint claims sexual harassment and sex discrimination.

(4)

On 11 September 2003 Ms Besley wrote to VCAT explaining that by clerical oversight in the Commission, a victimisation claim, which ought to have been included in the first complaint, had been omitted. It is clear from her letter that she understood that the Commission's advice was that she would have to lodge a fresh complaint. She asks for the first complaint and the second complaint, which she then proposed to lodge, to be heard together by VCAT if the need arises.

(5)

By directions dated 29 September 2003 the Tribunal, among other things, listed the matter for an administrative mention on 30 July 2004. It is clear from the correspondence on the Tribunal's file that this direction was made because Ms Besley was to be absent overseas for approximately a year from some time in October 2003. She was to be in Afghanistan.

(6)

On 15 December 2003 the respondents' solicitor wrote to Ms Besley and to VCAT foreshadowing an application to strike out the complaint.

(7)

On 30 July 2004, the date of the administrative mention, the respondents' solicitor wrote to VCAT requesting it to make orders for the filing and service of particulars of complaint and saying that it applied to strike out the complaint. It asked the Tribunal to set a timetable for submissions on that application. The Tribunal made the orders requested on 9 August 2004.

(8)

On 15 September 2003 Ms Besley lodged, with the Commission, another complaint under the Equal Opportunity Act. I call this "the second complaint". It is against the Association. The Commission declined to entertain the complaint under s.108(1)(a) of the Equal Opportunity Act. That section permits the Commission to decline a complaint which it considers frivolous, vexatious, misconceived or lacking in substance. Ms Besley requested the Commission to refer the complaint to VCAT. It did so by letter dated 5 November 2003. The proceeding is numbered A418 of 2003 in the Tribunal's records.

(9)

In its letter of referral the Commission said this complaint claims victimisation in the provision of goods and services.

(10)

The Tribunal listed this complaint for mediation on 18 December 2003. It is clear from Ms Besley's letters on the Tribunal's file, that she advised the Tribunal in early December 2003 that she could not attend the mediation because she was by that time working in Afghanistan. The Tribunal then listed the matter for an administrative mention on the same date as the first complaint, that is 30 July 2004.

(11)

On 30 July 2004 the respondents also applied to strike out this complaint. By orders dated 9 August 2004 the Tribunal made provisions in similar terms to those in its orders relating to the first complaint, requiring particulars of the complaint to be filed and served, and setting a timetable for submissions on the respondents' application.

(12)

I now have before me particulars of complaint which deal collectively with both complaints, and written and oral submissions from the parties on both complaints.

(13)

I first deal with the law. I then say something about the complainant's material. Next, I consider the respondents submissions.

THE STRIKE OUT APPLICATION AND THE LAW RELATING TO IT

(14)

The respondents apply under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). That section permits the Tribunal to strike out or dismiss a proceeding which it considers frivolous, vexatious, misconceived, lacking in substance or an abuse of process. On a reading of their submissions as a whole the respondents apply to strike out both complaints on all of these grounds.

(15)

The principles to apply when determining applications under this section have been considered by the Tribunal in many cases - For example Norman v. Australian Red Cross Society (1998) 14 VAR at p.243. The Tribunal has followed what the Victorian Court of Appeal has said in relation to a similar section in the now repealed Equal Opportunity Act 1984 in Rabel v. State Electricity Commission (1998) 1 V.R. at p.102. Relevantly to this case those principles are these.

(16)

This section involves the summary termination of a proceeding, here a complaint. The Tribunal must be cautious before doing this and so depriving the litigant of the chance to have the case heard in the ordinary course. It can only do so if for a reason set out in the section the case is manifestly hopeless, undoubtedly untenable or doomed to fail. If there are disputed issues of fact it will not generally be appropriate at this stage, where no evidence has been given or tested by cross-examination, to make findings on those issues. Rather, those issues go to a full hearing where evidence as to them can be given and tested.

(17)

The first complaint claims sex discrimination and sexual harassment. The second complaint claims victimisation. In her particulars of complaint Ms Besley also claims that the Association is vicariously liable under s.102 of the Equal Opportunity Act and has breached s.98 of that Act.

(18)

I briefly say something about the relevant provisions of the Equal Opportunity Act. There is nothing in Ms Besley's material to suggest that she claims indirect discrimination. I treat her claim as one of direct discrimination. Sex is an attribute listed in s.6 of the Act. Under s.8 direct discrimination occurs if a person treats someone with an attribute less favourably than the person treats, or would treat someone without that attribute, or with a different attribute in the same or similar circumstances. The attribute must be a substantial reason for the treatment although it need not be the only or dominant reason.

(19)

To apply these provisions to this case, Ms Besley's claim is that Mr Watson, one of the head instructors at the Associations Dojo venues at Caulfield and Clifton Hill, substantially because she was a woman, treated her less favourably than in similar circumstances he would treat a man. Among other things, s.60 prohibits a club or a member of its governing body from discriminating against a club member by subjecting the member to a detriment.

(20)

Among other things s.94 of the Equal Opportunity Act prohibits a member of a club from sexually harassing another member of that club. In her particulars of complaint Ms Besley claims that Mr Watson has breached that section.

(21)

I note, in its written submission, that the respondents argue that the Association was not a club within the meaning of the Equal Opportunity Act. However, in their oral submissions they abandoned that argument. I also note that although in the first complaint the Commission says that the claim is of sex discrimination and sexual harassment in the provision of goods and services and then lists various sections which it says are relied on, that list does not include s.92 of the Act which relates to sexual harassment in the provision of goods and services. I note that in her particulars of complaint Ms Besley does not mention that the conduct of which she complains occurs in the course of the provision of goods and services. I therefore treat her claim as relating to clubs only.

(22)

Section 85 of the Equal Opportunity Act defines sexual harassment. Under it, a person sexually harasses another person if he or she makes an unwelcome sexual advance or unwelcome request for sexual favours to the other person, or engages in any other unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. (See s.85(1)). Section 85(2) states that conduct of a sexual nature includes certain things. It does not give an exhaustive list. It is clear from the provisions of that subsection that conduct of this kind can cover actions, words or gestures.

(23)

Section 96 prohibits one person from victimising another. Section 97 defines victimisation. Under s.97 victimisation occurs if, among other things, a person subjects another person to detriment because the other person has alleged that any person has breached Part 3, 5 or 6 of the Act. (See in particular s.97(1)(f)). There are certain exceptions to this provision which are not relevant here. Parts 3, 5 and 6 contain respectively the prohibitions on discrimination, sexual harassment, authorising and assisting the breach of the Act and victimisation. The allegation must only state the conduct which would breach the Act, not the provisions breached. The allegation must be a substantial reason for the victimiser's conduct but need not be the only or dominant reason for that conduct.

(24)

"Detriment" is defined in s.4 to include humiliation and denigration.

"A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 3, 5 or 6."

(26)

I note that the section heading and the heading of the division in which the section appears, refer only to authorising or assisting discrimination but that the section itself also covers the parts concerning sexual harassment, victimisation and encouraging or assisting a breach of the Act.

(27)

The effect of s.99 is that if as a result of a person's conduct mentioned in s.98 another person breaches Part 3, 5 or 6, a complaint can be lodged against either or both of them for breach of substantive provision.

(28)

Relevantly, as far as this case is concerned, and looking at s.102, the effect of that section is that if a person while acting as the Association's agent, breaches Part 3, 5 or 6, or engages in conduct which if engaged in by the Association itself would breach Part 3, 5 or 6, then they both breach those provisions and a complaint can be lodged against either or both of them. Section 103 provides a defence if the Association can prove that it took reasonable precautions to prevent the agent breaching the Act.

(29)

I now briefly deal with the material put before the Tribunal by Ms Besley. I make, first, two general comments.

(30)

First, the respondents argue that Ms Besley has breached the Tribunal's directions to provide separate particulars of complaint for each complaint by providing consolidated particulars of complaint. Ms Besley is not a lawyer and was not represented by a lawyer at the relevant time. It is clear from the VCAT Act that the Tribunal should look at the merits of the matter rather than to technicalities, and should proceed without undue technicality or formality.

(31)

I approach the complaint, and what Ms Besley has done, by looking at the matter in this way. In my view she has substantially complied with the Tribunal's directions to the best of her ability.

(32)

Second, the complaints, particularly the first complaint, give more details of Ms Besley's allegations than do her particulars of complaint. An application to terminate her complaints summarily is a serious matter. I have looked at her material in a broader non-technical way to see whether her case is in truth manifestly hopeless for one of the reasons set out in s.75. In doing this I have had regard to the particulars of complaint and the complaints, so as to fully understand the allegations.

(33)

I now come to her allegations. First she alleges that Mr Watson sexually harassed her as follows.

(A) In 1997 in the car park of the Association's Caulfield Dojo he said to her that he was going to proposition her but his wife was home that night.

(B) A few weeks later, he told a friend of hers what I have set out under paragraph (a) and gave that friend a box of chocolates to give to

(C) A year after this while in England, and after Ms Besley had explained to him before he left Australia, that she was offended by his earlier conduct, he wrote to her a letter in impersonal terms and sent it to one of her friends to be given to her. Ms Besley says she replied to this letter in similarly impersonal terms.

(D) On his return from England he gave Ms Besley a CD as a present.

Ms Besley says that she was not in at that time. She says that she had not given him her home phone number.

(F) On the day of the phone call, and at training that night, he said to Ms Besley that he was having visions of them having lunch on a sunny sidewalk café.

(G) He told a friend of Ms Besley that he, Mr Watson, would have left his wife for Ms Besley. The friend repeated the comment to Ms Besley.

Ms Besley at her home, said he was in depression of his feelings for her and said that he couldn't help it if he was attracted to her.

Ms Besley says that by her manner, and sometimes in words, she showed Mr Watson that his conduct (described in paragraphs (A) to (H))offended her.

(I) On 10 January 2002 Mr Watson at an Association summer school held at Melbourne University, said to Ms Besley "Have you paid for the summer school yet?" And when she said "No I'm not" and began to walk away Mr Watson began to yell at her in front of a number of other people "You shouldn't be training." Ms Besley's claim here is that Mr Watson humiliated her in front of others because she had rejected his sexual advances and requests.

(34)

Ms Besley's second claim is that the Association victimised her by mishandling the complaint she made to it about the alleged conduct of Mr Watson. The basis of this claim is set out in the first complaint but no victimisation claim is made in that complaint. The second complaint substantially repeats the alleged factual basis of this victimisation claim and expressly characterises the claim as a victimisation claim. It contains no new material apart from that characterisation.

(35)

Ms Besley says, and the respondents do not dispute, that the second complaint was lodged because, through an oversight of the Commission, the characterisation of victimisation was omitted from the first complaint and the Commission advised her that if she wished to complain of victimisation she must lodge a second complaint. Her allegations of victimisation can be summarised in this way.

(36)

On 10 January 2002 she made an oral complaint to Miss Birman about Mr Watson's alleged conduct. Miss Birman was a member of the Victorian Committee of the Association. Miss Birman did not respond to this complaint until 3 September 2002 when she wrote to Ms Besley and then only after Ms Besley had written about the handling of the complaint to Mr Savage, who was then the area representative of Victoria for the Association. Her letter to Mr Savage is dated 2 September 2002. Miss Birman's letter, according to Ms Besley, did not details conversations she had had with Mr Watson or others, or the outcome of those conversations, and did not indicate that action would be taken to prevent any further unwanted contact between her and Mr Watson .

(37)

On 9 September 2002 Ms Besley met Mr Savage. It is clear from her submissions that she makes no claim concerning this meeting. Ms Besley said at this meeting they discussed what complaint handling process should apply and that she requested a written assurance from Mr Watson not to contact her inappropriately. There was an understanding at the meeting that Mr Savage would contact others in the Association and get Mr Watson's side of the story.

(38)

Ms Besley says that she heard nothing from Mr Savage until she phoned him on 24 September, 2002. He told her that Mr Watson agreed with certain parts of her account of what happened between them but disagreed with other parts and wanted to write his own version. Mr Savage, according to Ms Besley, said that this may take a few weeks.

(39)

By letter dated 25 September 2002 Ms Besley wrote to Mr Savage suggesting that Mr Watson should stop training until the matter was resolved. She pointed out that she herself felt unable to train until the matter was resolved.

(40)

Ms Besley said that on 25 September 2002 Mr Watson phoned her and asked her to sign a written assurance not to contact Mr Watson and said that she had omitted certain matters from her story. I do not need to repeat here the detailed allegations made by Ms Besley about this conversation. Suffice it to say that in my view her claim is that Mr Savage was not an impartial investigator, that he was more sympathetic to Mr Watson than Ms Besley, and that he was unwilling to raise with Mr Watson suggestions made by Ms Besley as part of her attempt to resolve the complaint - For example suggestions that Mr Watson might stop training. She also says that Mr Savage raised what, in her view, was an unrelated issue of her failure to pay certain Association membership fees. I should add that Ms Besley says that eventually Mr Savage agreed to raise the training issue with Mr Watson.

(41)

At a meeting between Mr Savage, Ms Besley, and a friend of Ms Besley's on 9 October 2002, there were further discussions concerning ways of resolving the matter. I do not need to go through this in detail.

Ms Besley says that she believes that Mr Savage did not understand the impact of Mr Watson's alleged conduct on her. She says that Mr Savage said it was poor form of Ms Besley to respond to Mr Watson's letter from England. Ms Besley says that Mr Savage would not listen to her and seemed disinterested in what she said. She says that Mr Savage told her he thought it unreasonable of her to have asked Mr Watson to stop training, and also that it was her choice whether or not to train. According to Ms Besley, he again raised the subject of her membership fee payments. Ms Besley says that she asked for an assurance from Mr Watson within a week. Mr Savage, according to her, said that he would speak to Mr Watson and update her within a week. Ms Besley asked what would happen if Mr Watson gave her an assurance in relation to the matter of contact and then breached that assurance. Her question was what action the Association would take. She says that Mr Savage suggested that the matter should be taken up externally.

(42)

On 16 October 2002, according to Ms Besley, Mr Savage rang her to give her the update she had requested. She then requested that their dealings in future be in writing. More correspondence followed, the upshot of which was that it would appear that Ms Besley approached the Commission and complained in late October 2002.

DOES THE SEXUAL HARRASSMENT CLAIM LACK SUBSTANCES?

(43)

I now come to the respondents' submissions. The respondents first say that the complaint of sexual harassment lacks substance. It consists, they say, of two allegations, one allegedly occurring almost five years and one more than a year before the lodgement of the first complaint.

(44)

Reading the particulars of complaint and the first complaint together I consider that Ms Besley is claiming that there was a pattern of conduct, the pattern consisting of more than two incidents. I am not prepared to strike out these incidents because they occurred too long ago. A pattern does not emerge until a number of events have occurred. The complainant may not see the pattern until a number of incidents have occurred and may not consider lodging a complaint until he or she sees the pattern and it impacts on him or her. I do not, therefore, strike out claims (A) to (H) as I have summarised them in the first complaint.

SHOULD THE SEX DISCRIMINATION CLAIM BE STRUCK OUT?

(45)

In my view, claim (I) should be struck out. The alleged conduct of Mr Watson of yelling at Ms Besley cannot constitute sexual harassment. It is not conduct of a sexual nature. Nor is it clear how it could constitute sex discrimination. While humiliation is clearly a detriment within the meaning of the Act, there is nothing to indicate how the conduct was substantially based on Ms Besley's sex. It is not clear how the treatment is less favourable or how Mr Watson, according to Ms Besley, would have treated a man in similar circumstances - that is, a man who had been subjected by Mr Watson to the same conduct which Ms Besley alleges she was subjected to. It is not clear whether Mr Watson would have treated a man in any different way. If Ms Besley wishes to continue with this claim of sex discrimination she must apply to have it reinstated, explaining how it is put.

SHOULD THE CLAIM OF VICTIMISATION BE STRUCK OUT?

(46)

I come now to the claim of victimisation. The respondents argue that the second complaint should be struck out as an abuse of process because it repeats those parts of the first complaint which relate to the handling of the complaint made to the association by Ms Besley. For this purpose I accept Ms Besley's uncontested assertion that the victimisation claim was omitted from the first complaint by the Commission's oversight. Clearly it would have been preferable for the first complaint to contain that claim. But given that it did not I assume that the complaint went forward to conciliation on the basis that the claim was for sexual harassment and sex discrimination alone. In these circumstances an application after the referral of the first complaint to amend that complaint to include victimisation might well not be successful.

(47)

Ms Besley has done what the Commission asked her to do and lodged a second complaint, clearly characterising the claim as victimisation. That claim has been referred to the Tribunal. Ms Besley is not a lawyer and presumably relied on the Commission, whose duty was to assist her in formulating her complaint, for advice as to how to characterise it under the Equal Opportunity Act. I am not prepared, in these circumstances, to characterise this second complaint as an abuse of process.

(48)

Nor does the doctrine of Anshun estoppel argued for by the respondents apply. That doctrine only applies where a proceeding has been heard and determined and where a party to the proceeding could have raised an issue relevant to the determination but did not do so, and where that failure was unreasonable.

(49)

A complaint at the Commission stage is not such a proceeding. Ms Besley did raise the factual allegations on which the claim of victimisation was based. The characterisation of those allegations is the only matter that was not raised. Failure to raise that matter was due to the Commission's oversight rather than Ms Besley's omission. There was no unreasonable failure here.

(50)

The Commission, I note, declined the second complaint on the basis that flaws in the complaint process were not capable of constituting victimisation within the meaning of the Act. Those flaws were incapable of constituting a detriment within the meaning of the Act or within the concept of victimisation as defined in s97 and so were incapable of constituting victimisation. The respondents repeat these views of the Commission.

(51)

It is clear that flaws in a complaint handling process can constitute a failure to take reasonable precautions to prevent a breach of Parts 3, 5 or 6 of the Equal Opportunity Act. That would mean that the defence under s.103 would not be available to a principal, in this case the Association. The respondent would then be vicariously liable for its agent's action under s. 102 of the Equal Opportunity Act.

(52)

But in my view a flaw in the complaint handling process, without more, and except in very unusual circumstances, will not be capable of constituting victimisation. This is so for two reasons.

(53)

First, it will be impossible to show that the allegation made by complainant is a substantial reason for the flows in the complaint handling process. That complaint handling process would not have occurred but for the making of the complaint or the allegation. But this is not the same thing as showing that the flaw in the process is directly attributable to the making of the allegation or that the of the allegation is a substantial reason for the flaw. Generally, the reasons for the flaw will be a matter of inference. An equally or more probable explanation for the flaw will often be misunderstanding, ignorance, inefficiency or incompetence. In my view such an explanation is clearly available here even on Ms Besley's own version of events.

(54)

Second, in most cases, the flaw cannot be characterised as a detriment. It is the conduct the subject of the original allegation which usually will be the detriment. The complaint handling process itself will almost always result in tension and stress, whether or not that process is flawed. In other words the attention or stress comes from the process not from particular flaws in it.

(55)

However, there can be detriment where something occurs beyond the process itself, and that something occurs substantially because of the making of the allegation.

(56)

Here Ms Besley alleges that during the complaint handling process Mr Savage subjected her to criticism about her non-payment of Association membership fees, although this was unrelated to the complaint handling process. This allegation, in my view, is not incapable of constituting victimisation . The other allegations are incapable of constituting victimisation and should be struck out.

DID THE ASSOCIATION AUTHORISE OR ENCOURAGE BREACH OF THE ACT?

(57)

In her particulars of complaint, Ms Besley claims the Association has breached s.98 of the Equal Opportunity Act. On a reading of her particulars and the complaints as a whole, the claim is that by mishandling the process of investigating her complaint about her alleged sexual harassment by Mr Watson, the Association condoned the sexual harassment, or condoned Mr Savage's conduct during his mishandling of the complaints process.

(58)

The respondents submit that even if Ms Besley can prove that the complaint handling process was flawed, the conduct is incapable of constituting a breach of s.98. I agree. Apart from the word "encourage" s.98 uses the words "request, instruct, induce, authorise or assist" in relation to a breach of the Act by another person. Section 99 provides that: "Is as a result of a person doing any of the things specified in s.98" another person breaches the Act, then either or both are taken to be liable and the complaint may be lodged against either or both of them.

(59)

Given the wording of s.98 and s.99 which deals with liability where as a result of conduct in s.98 another person breaches the Act, I conclude that s.98 looks at something occurring before what I might call the substantive breach. In other words the instruction, authorisation, encouragement, inducement or assistance to the other person to breach the Act, must occur before that other person commits the breach. On Ms Besley's material the complaint handling process occurred after the alleged sexual harassment. Section 98 is, in my view, not directed to condoning a breach of the Act after the event. Of course it would cover encouraging, assisting, et cetera, a person to breach the Act even if no breach occurs. But this is not the claim here.

(60)

There is nothing in Ms Besley's material to suggest that the Association itself by some act of its governing body, has done anything mentioned in s.98 to condone the conduct of Mr Savage during the complaint process.

Ms Besley's material is incapable of constituting a breach of s.98. The claim of breach of that section in her particulars of complaint should be struck out.

(61)

She mentions this claim in neither of her complaints. This being so, she would have to ask the Tribunal to amend those complaints to include that claim. She has not done so expressly. But even if she has done so impliedly I would refuse the request because the claim itself is, as I have said, incapable of constituting a breach of the section. This being so the claim, as I said, in her particulars should be struck out.

(62)

I make some concluding comments. First, I recognise that many of the allegations made by Ms Besley are disputed by the respondent. For example, Ms Besley says that at the relevant time she was a financial member of the Association, or was treated as such. The Association disputes this and says that at most relevant times she was not a member. Again, the respondents in effect say that Mr Savage's conduct of the complaint handling process was both appropriate and reasonable. As is clear from what I have already said, Ms Besley strongly disputes this. These disputes are matters for the full hearing and for evidence. For the purposes of this proceeding I assume that Ms Besley will be able to prove what she asserts as fact and take her case at it's highest.

(63)

Second, it has been a difficult process to glean from Ms Besley's material, the exact nature of her allegations. She must prepare fresh particulars of complaint setting out in detail what her case will be, and omitting the claims which I have struck out. The respondents need to know exactly the case they will have to meet.

(64)

Third, to the extent that the complaints survive, I propose to consolidate them into one proceeding subject to anything the parties might raise.

(65)

Fourth, given the time which has already passed since the first complaint was referred to this Tribunal, I propose to set a timetable which will bring the matter on for hearing as soon as possible.

(66)

Fifth, I notice that mediation was unsuccessful. I also note that the result of this strike out application has been to refine and limit the issues before the Tribunal. I would suggest a further attempt at mediation, perhaps after the filing and service of particulars of complaint and defence. Again this is subject to what the parties have to say.

(67)

That concludes my reasons for decision.