Indirect Race Discrimination in Written Work Standards

The Tribunal found that the employer indirectly discriminated against the employee on the grounds of race by requiring a standard of written English that disproportionately affected individuals of the employee's race. The decision was based on the Anti-Discrimination Act 1977.

[NAME]: [NAME] v [NAME] ([NAME]) [2005] NSWADTAP 41 APPELLANT PARTIES: [NAME] RESPONDENT/CROSS APPELLANT [NAME]: 059018; 059022 HEARING DATES: 17/06/2005 SUBMISSIONS CLOSED: 06/17/2005 DATE OF DECISION: 08/25/2005

[NAME] v [NAME] & Anor [2005] NSWADT 30

DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Chesterman M - ADCJ (Deputy President); [NAME] Member CATCHWORDS: damages for lost opportunity - indirect discrimination - identification of compliance - indirect discrimination - rate of compliance with requirement MATTER FOR

DECISION: Principal matter FILE NUMBER UNDER APPEAL: 031116 & 031117 DATE OF

DECISION UNDER APPEAL: 02/21/2005 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Evidence Act 1995 Amery & Ors. v [NAME] (Director-[NAME] Department Of [NAME]) [2004] NSWCA 404 Australian Iron & Steel v Banovic (1989) 168 CLR 165 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 [NAME] -v- Commissioner of Police [1999] NSWADTAP 8 CASES CITED: Haines v Leves & Anor (1987) 8 NSWLR 442 [NAME] v [NAME] (1991) EOC 92-340, 78,370 Malec v J.C. Hutton Pty. Ltd (1990) 169 CLR 638 Orphanos v Queen Mary College [1985] AC 761Sellars v Adelaide Petroleum N.L. and Others (1994) 179 CLR 332 Waters v Public Transport Corporation (1991) 173 CLR 349 APPELLANT/RESPONDENT S Doctor, Counsel REPRESENTATION: RESPONDENT/CROSS APPELLANT S Beckett, Counsel ORDERS:

1. The appellant's appeal is dismissed;

2. The cross-appellant's appeal is dismissed

REASONS FOR

DECISION 1 [NAME] is a Sri Lankan. English is not his first language. He worked under contract as an estimator for [NAME] ([NAME]) for 3 months in 1998. During that time his supervisor, [NAME], was not satisfied with the standard of his written work and often sent it back with corrections to spelling, grammar, structure and syntax. For a short time after the contract had expired, [NAME] continued to carry out his duties but [NAME] then told him that the [NAME] no longer required his services. [NAME] complained to the [NAME] that he had been discriminated against on the ground of his race. The President of the Board referred the complaint to the Tribunal. 2 On 21 February 2005, the Tribunal decided that [NAME] (formerly Rail Services Authority) had "indirectly" discriminated against [NAME] on the ground of his race. The Tribunal ordered [NAME] to pay [NAME] $2000, but dismissed his complaint of victimisation. [NAME] appealed against the Tribunal's decision on the basis that the Tribunal had not calculated his damages correctly. [NAME] cross appealed on the ground that the Tribunal's finding of indirect race discrimination was legally flawed. We deal firstly with [NAME]'s cross appeal because it relates to the Tribunal's finding that the complaint was substantiated. Tribunal's findings 3 The Tribunal decided that [NAME]'s complaint did not amount to direct race discrimination as defined in s 7(1)(a) of the Act. That was partly because there was no evidence that the other estimators were treated differently from the way [NAME] was treated. Neither party appealed against that finding. However, the Tribunal did find that [NAME] had "indirectly" discriminated against [NAME] by failing to offer him a further contract. Indirect race discrimination is defined in s 7(1)(c) of the Act: (1) A person ( "[NAME]" ) discriminates against another person ( "[NAME]" ) on the ground of race if, on the ground of [NAME]'s race or the race of a relative or associate of [NAME]: (c) requires [NAME] to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which [NAME] does not or is not able to comply. 4 In order to substantiate a complaint of indirect race discrimination, [NAME] needed to prove four things: [NAME] required him to comply with a requirement or condition; a substantially higher proportion of people not of his race were able to comply with the requirement compared with people of his race; he could not comply with the requirement; and the requirement was not reasonable having regard to the circumstances of the case. 5 It was common ground that [NAME] could not comply with the requirement. Indirect discrimination must occur in relation to an activity which is covered by the Act. The Tribunal identified s 10(a) and (d) as provisions which may have been breached. Those provisions state that: It is unlawful for a principal to discriminate against a contract worker on the ground of race: (a) in the terms on which the principal allows him or her to work, … (d) by subjecting him or her to any other detriment. 6 Alternatively, the Tribunal noted that [NAME]'s complaint could be characterised as arising under s 8(a) and (b). We assume that the Tribunal intended to refer to s 8(1)(a) and s 8(1)(b) which relate to the arrangements an employer makes for the purpose of determining who should be offered employment, and the determination of who should be offered employment. [NAME] said that it was not evident from the decision which of these provisions the Tribunal found had been breached. On that basis [NAME] submitted that the Tribunal acted beyond its powers in finding that the complaint had been substantiated. [NAME] did not dispute that if the conduct does amount to indirect discrimination then it comes within the area of activity covered by s 8(1)(b). As we have found that there was no error of law in the Tribunal's finding that the conduct constituted indirect discrimination, this point of appeal does not need to be determined. Identification of the requirement 7 Tribunal's findings. The Tribunal found that the requirement in this case was that: ". . . in written work, certain matters be addressed (content), and written English be used (form), to a standard that, in [NAME]'s view, would neither convey inaccurate information nor compromise the Division's professional reputation." The Tribunal noted that the requirement, in so far as it was concerned with content, was to meet a standard reasonably expected of an estimator with experience: at [39]. The requirement as to form was to meet [NAME]'s own expectations of written English expression. 8 [NAME]'s submissions. According to [NAME], the requirement should have been expressed as: In order to be employed as an estimator at the [NAME] in 1998 an estimator must be able to prepare written reports, memoranda and correspondence that are accurate and can easily be understood by the reader. 9 This formulation avoids three errors which [NAME] says the Tribunal made, each of which rendered the requirement invalid. Firstly, the Tribunal did not structure the requirement correctly. Secondly, the requirement as to form was not generally applicable to all estimators and thirdly, the requirement as to form was a description of the way [NAME] imposed the more [NAME] requirement on, or "treated", [NAME]. If anything, it was an instance of direct discrimination, not indirect discrimination. 10 Structure of the requirement. [NAME] provided examples of how the requirement had been structured in other cases. For example, in Australian Iron & Steel v Banovic (1989) 168 CLR 165 at 185 the requirement was " . . . for an ironworker to remain in employment once retrenchments had begun in November 1982, he or she must have commenced employment before 6 January 1981. Similarly, in Waters v Public Transport Corporation (1991) 173 CLR 349 at 393, the requirement was expressed as "in order to travel on trams a scratch ticket must be used." The requirement as formulated by the Tribunal omitted the consequences of non-compliance, namely that such a person would not be employed (or offered a second contract) as an estimator. This is a technical error. Even if the Tribunal had prefaced the requirement with the words "In order to be employed as an estimator in 1998, . . " its conclusion would have been the same. 11 Not a [NAME] requirement. [NAME]'s second and third challenges to the Tribunal's formulation of the requirement are two ways of making a similar point. [NAME] said that the requirement must be one which applies generally to all estimators, but there was no evidence that other estimators had their work corrected as to form. According to [NAME] it was more likely that the correction of form was something that [NAME] did only to [NAME]'s work. The converse of that argument is that the requirement was merely a description of how [NAME] imposed the requirement on [NAME] as an individual. There was a [NAME] requirement in the job description that the "incumbent should possess good communication, people management and self management skills." [NAME] submitted that the Tribunal confused the [NAME] requirement for good communication skills, which it applied to all estimators, with the way [NAME] imposed the requirement on [NAME]. 12 [NAME]'s conclusion. The "requirement or condition" referred to in s 7(1)(c) should be interpreted broadly to "cover any form of qualification or prerequisite demanded by an employer of his employees" but it must be identified with some precision. (Australian Iron & Steel v Banovic (1989) 168 CLR 165 at 185 per Dawson J.) A requirement may be inferred or implicit. It does not have to be express: Waters v Public Transport Corporation (1991) 173 CLR 349 at 407 per McHugh J and at 360 per [NAME] JJ. 13 Although the job description for estimators mentioned good communication skills, there was also an implicit requirement as to form which depended on [NAME]'s view of what constituted an effective and professional standard of written communication. While there was no specific evidence that other estimators had their work corrected as to its form, the Tribunal noted at [30] that "[NAME], in answer to questions from [NAME], said that he had the same expectations of all estimators." In addition, [NAME] gave evidence that he reviewed the work of all estimators. While the requirement manifested itself in the way [NAME] corrected [NAME]'s written work, the evidence is sufficient to support a finding that the requirement itself was applicable to all estimators. For those reasons, the requirement as formulated by the Tribunal was a valid requirement within the meaning of that term in s 7(1)(c). Rate of compliance. 14 Tribunal's findings. The next element of indirect discrimination is that a substantially higher proportion of persons who are not of [NAME]'s race, comply or are able to comply with the requirement or condition, compared with people of his race. There is a line of authority which says that it is impractical to compare one nationality with every other nationality, but that point was not raised in this case. (See, for example, Orphanos v Queen Mary College [1985] AC 761.) The pool of people to whom the requirement is directed must be identified. The Tribunal found, at [52] that: The group of people among whom the comparison must be made consists of those people subject to the requirement, that is: estimators working under [NAME] at [NAME]. As the first respondent submitted, the pool is, effectively, anyone capable of performing an estimator's duties. Any number of people of any race could have worked under [NAME] at [NAME] – relevantly, the pool of people within which the comparison is to be made encompasses people of all and any race including, for example, people of Anglo-Saxon background. 15 At [52], the Tribunal concluded, presumably on the basis of the doctrine of judicial notice, that . . . to the extent that the requirement meant having to use spelling, grammar, syntax and structure in a way that would satisfy [NAME], in our view a substantially higher proportion of persons not of [NAME]'s race, for example, a person of Anglo-Saxon background, would have been able to comply with the requirement than [NAME] was able to. 16 [NAME]'s submissions. [NAME] submitted that the Tribunal erred by limiting its comparison to persons of Anglo-Saxon background. In addition, [NAME] said that it was unclear whether the Tribunal meant the pool to encompass people living in Sydney, New South Wales, Australia or the world who could potentially do the work of an estimator. Finally, [NAME] said that there was no evidence, statistical or otherwise, of the impact of the requirement on members of the pool. 17 [NAME]'s conclusions. The rate of compliance with the requirement is essentially a question of fact: Amery & Ors. v. [NAME] (Director-[NAME] Department Of [NAME]) [2004] NSWCA 404 at [136]; Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 at pp.178-179. As [NAME]'s legal representative correctly pointed out, the pool of people to be compared must be meaningful in the sense that it must reveal the significance of race to compliance with the requirement: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 at 180 per Deane and Gaudron JJ. [NAME] conceded that as there were only three estimators at [NAME]'s level in 1998, it would not sufficiently reveal the effect of the requirement on different races to compare the rate of compliance using that pool. 18 Contrary to [NAME]'s first submission, the Tribunal did not limit its comparison to people of Anglo-Saxon background. It merely used people of that race as an example of those people who would be more likely to comply with the requirement. Secondly, although it may have been preferable for the Tribunal to have nominated the geographical extent of the pool of potentially qualified estimators, its failure to do so does not constitute an error of law. Given that the Act operates within New South Wales, it can be inferred that the relevant pool is the population of New South Wales who could potentially do the work of an estimator. 19 [NAME]'s final submission in relation to the lack of evidence to support the Tribunal's finding, is a more significant point. There was no statistical evidence supporting the Tribunal's finding that a substantially higher proportion of persons not of [NAME]'s race would have been able to comply with the requirement. Nor was there any statistical evidence that Sri Lankans would be less likely to be able to comply. The only relevant evidence the Tribunal had on this point was [NAME]'s agreement with the proposition that his vocabulary, sentence structure and grammar were typical of those used by other Sri Lankans when writing English. He was not cross-examined on that point, nor did [NAME] adduce any contrary evidence. 20 The Tribunal acknowledged the difficulty of comparing the compliance rates of Sri-Lankans and non Sri-Lankans when it said at [52] that: To the extent that the requirement meant having to anticipate, and to infer accurately from his corrections, how [NAME] wanted matters expressed, people of any race might have been as unable as [NAME] was to comply; as we noted above, some of [NAME]'s expectations appear to have been as much a matter of choice as a matter of correct grammar. 21 Despite this difficulty, the Tribunal concluded that a substantially higher proportion of persons not of [NAME]'s race, would have been able to comply with the requirement. In coming to that view, the Tribunal must have accepted that it was common knowledge that people from nationalities whose first language is English would have substantially less difficulty complying with the requirement than those of Sri-Lankan nationality whose first language is not English. Although not bound by the rules of evidence, in our view that fact is a matter of common knowledge and is not reasonably open to question. (See s 144 of the Evidence Act 1995.) Consequently, [NAME]'s submissions on this point do not disclose any legal error. Reasonableness of the requirement 22 Tribunal's findings. The final element of indirect discrimination is that the requirement is not reasonable having regard to the circumstances of the case. The Tribunal found that the requirement as to content was reasonable and then went on to deal with the requirement as to form at [41]: To the extent the requirement was concerned with form, [NAME] did not set out or describe what standard of written English he expected. At no time did [NAME] say to [NAME] what standard he expected of his written English. [NAME] was not told, for example, that he should ensure that his grammar and syntax conformed to ordinary Australian usage. He was not told, by reference to a particular error, how he should express himself differently on the next occasion. The requirement was simply that the form of [NAME]'s written expression conform to [NAME]'s expectations. The unreasonableness of that requirement is illustrated by looking at [NAME]'s corrections of the fax cover sheet (see paragraphs [24]-[26] above). 23 [NAME]'s submissions. [NAME] submitted that the Tribunal erred by splitting the requirement into two parts – form and content – and finding that one part was reasonable and the other part was unreasonable. According to [NAME], the Tribunal should have examined the requirement as a whole and decided whether or not it was reasonable. [NAME] also submitted that we should consider its version of the requirement, not the Tribunal's, when determining reasonableness. 24 [NAME]'s conclusion. A requirement can contain more than one element. For example, in [NAME] v [NAME], (1991) EOC 92-340 at 78,370 the requirement was that "the appointee to a third Deputy Principal position must be a senior teacher with a substantial period of uninterrupted full-time service." (1991) EOC 92-340 at 78,370.) However, in this case, the requirements were not cumulative. Non-compliance with either part of the requirement meant that the estimator would not have been offered further work. Consequently the Tribunal did not err by assessing the reasonableness of each part of the requirement separately. As we have found no error in the Tribunal's formulation of the requirement, it is that version that must be the focus of our inquiry as to reasonableness, not [NAME]'s version. [NAME] did not raise any other grounds of objection to the manner in which the Tribunal interpreted or applied the test of reasonableness. Extension to the merits 25 Section 113(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) allows a party to appeal to an [NAME] of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. [NAME] applied to the [NAME] for its appeal to be extended to the merits of the Tribunal's decision if we found no error of law. The extension was sought on the basis that the Tribunal's findings reveal manifest error. We have not found manifest error or any other basis for granting leave to extend the appeal to the merits of the Tribunal's decision. [NAME]'s appeal on economic loss 26 Introduction. Under the former s 113(1)(b) of the Act, if the Tribunal finds a complaint substantiated it may order the respondent to pay "damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct." [NAME] appealed against the Tribunal's finding that he was not entitled to compensation for economic loss as there was no real lost opportunity on which he could place any value. The Tribunal awarded [NAME] $2000 for non-economic loss. 27 Tribunal's reasons. The relevant parts of the Tribunal's decision are set out below: 72 [NAME]'s assertion is that, but for the discriminatory requirement, he would have been employed. He assumes it is certain that, had he not been subject to the discriminatory conduct, he would have been offered what [NAME] called 'temporary employment', that is contract employment, and would have continued in that employment for some six years, to the time of the Tribunal's inquiry. 73 That assumption cannot be made. [NAME] was rejected as a prospective employee after a period on assignment from an agency. He had an opportunity to be employed, and we must consider the probability of his having been employed in the circumstances, but for the discrimination. When assessing damages we should take into account the probability of [NAME]'s being employed, "unless the chance is so low as to be regarded as speculative - say less than 1 per cent" ( [NAME] v [COMPANY] . (1990) 169 CLR 638 at 643; and see Sellars v Adelaide Petroleum N.L. and Others (1994) 179 CLR 332; [NAME], Loss of a Chance (1999) 29 VUWLR 225). 74 This approach is taken when damages are to be assessed "for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s.52(1) [of the Trade Practice Act ]" ( [NAME] at p 355). Although the status of a breach of the Anti-Discrimination Act remains unclear (see eg Commissioner of Police v The Estate of Edward John Russell & Ors (2002) 55 NSWLR 232 at [69]-[78]; [99]), it is appropriate, in light of current authorities and practice, for this Tribunal to proceed on the basis that damages under the Anti-Discrimination Act are assessed at least by analogy with, if not actually as, tortious damages (see eg the authorities set out in Commissioner of Police, NSW Police Service v [NAME] . [2001] NSWSC 745 at [33]). 75 A clear barrier to [NAME]'s employment prospects, and thus to his obtaining a remedy based on likely employment, is that, to an extent, he did not comply with that part of the requirement concerned with content. Quite apart from [NAME]'s dissatisfaction with [NAME]'s grammar and syntax, he was dissatisfied with what [NAME], as an estimator, included in and omitted from his drafts. [NAME] may have been harsh in this assessment, but it is an assessment that he clearly made and its fairness is a matter we cannot look into. 76 In the circumstances, we assess the probability of [NAME]'s being employed by [NAME] in June 1998 as having been "so low as to be regarded as speculative – say less than 1 per cent" (per [NAME]), and its value to have been negligible (per [NAME] at 355). As there is no real lost opportunity on which [NAME] can place any value, he is not entitled to compensation for economic loss. Grounds of appeal 28 [NAME] appealed against the Tribunal's findings in relation to two "lost opportunities" to gain employment with [NAME]. The first was in June 1998 when he was not offered a further contract and the second was in February 1999 when his application for employment as an estimator with [NAME] in [NAME] was unsuccessful. In relation to the lost opportunity in 1998, [NAME]'s submission appears to be that while the Tribunal correctly identified the legal principles to be applied, it failed to apply those principles to his situation. In relation to the lost opportunity in 1999, [NAME] says that the Tribunal erred because it did not take into account that lost opportunity at all. Lost opportunity in 1998 29 Legal principles. When determining whether a person is entitled to damages for a lost opportunity, the first question is whether the discriminatory treatment caused the person to lose an opportunity which they may otherwise have enjoyed. The second question is the amount, if any, which should be awarded for the loss of that opportunity. The amount is to be assessed on the basis of the likelihood that the relevant event, such as being offered a second contract, would have occurred. [NAME] submitted that the likelihood of him being re-employed, but for the discrimination, was in the vicinity of 15%. Such a finding would result in [NAME] being awarded 15% of the amount he lost by not being re-employed. However, a person is not entitled to be awarded any damages for lost opportunity if ". . . the chance is so low as to be regarded as speculative - say less than 1 per cent." (See Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 and Sellars v Adelaide Petroleum (1992) 179 CLR 332 at 355.) 30 Tribunal's approach. We agree with [NAME]'s submission that it is implicit in the Tribunal's decision that it answered the first question in the affirmative. The Tribunal was satisfied that [NAME] had established that there was some chance of obtaining employment with [NAME] because it went on to assess that chance. In relation to the second question, the Tribunal correctly identified the relevant legal principle in relation to assessment of damages when it said at [73] that ". . .we must consider the probability of his having been employed in the circumstances, but for the discrimination. When assessing damages we should take into account the probability of [NAME]'s being employed, 'unless the chance is so low as to be regarded as speculative - say less than 1 per cent'." 31 Identification of "errors." [NAME] said that rather than assessing the likelihood of him being employed, the Tribunal decided, on the balance of probabilities, that he would not have been re-employed. [NAME] draws that conclusion on the basis of two comments the Tribunal made. The first was the Tribunal's rejection of [NAME]'s assumption that he would certainly have been employed but for the discriminatory conduct: [72] & [73]. According to [NAME] certainty as to the chance of gaining the benefit that has allegedly been lost is not required. [NAME] also referred to the passage at [75] of the reasons where the Tribunal said "A clear barrier to [NAME]'s employment prospects, and thus to his obtaining a remedy based on likely employment, is that to an extent, he did not comply with that part of the requirement concerned with content." (Emphasis added.) According to [NAME], the use of the word "likely" in this sentence indicates that the Tribunal was assessing on the balance of probabilities whether [NAME] would have been re-employed instead of assessing the likelihood of that event occurring in percentage terms. 32 [NAME]'s conclusion. Neither of these points demonstrates that the Tribunal decided, on the balance of probabilities, that [NAME] would not have been re-employed in 1998. The Tribunal said that [NAME] assumed that it was certain that, had he not been subject to the discriminatory conduct, he would have been offered employment. The Tribunal disagreed with that assumption and went on to assess the likelihood of him being employed in 1998 as less than 1 per cent. The use of the word "likely" in [75] is merely a short hand way of referring to the likelihood of being employed. 33 Contrary to the evidence. The next point [NAME] made was that the Tribunal's finding that there was a negligible chance of him being given a second contract, even without the discriminatory conduct, was contrary to the evidence. To amount to an error law it is not enough that a finding be found to be "perverse" or "contrary to the overwhelming weight of the evidence": Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 at 155-156. When referring to that passage in Haines v Leves & Anor (1987) 8 NSWLR 442 Kirby P, as he then was, said, at 470, that: The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law. 34 There was evidence before the Tribunal which supported its finding that the probability of re-employment was negligible. That evidence was that [NAME] was not satisfied with [NAME]'s performance in relation to the content of his written work. Consequently the Tribunal did not make an error of law in relation to that finding. Application for job in February 1999 35 [NAME]'s submission. The second limb of [NAME]'s appeal was that the Tribunal did not consider whether he was entitled to damages in relation to his unsuccessful application for a job at [NAME] in 1999. That incident was the subject of a separate complaint of victimisation which the Tribunal dismissed. [NAME] said on appeal that his damages should be assessed on the basis that he lost a chance to be employed by [NAME] at [NAME], he did not put that to the Tribunal. Even so, [NAME] said that the Tribunal should have also taken into account that incident when assessing damages. 36 [NAME]'s conclusion. [NAME] was not legally represented before the Tribunal, it is not an error for the Tribunal to fail to alert him to the possibility that he may have had a claim for damages based on the 1999 incident. [NAME] did not submit that he was entitled to damages as a result of that incident, we would need to extend the appeal to the merits of the decision to assess that claim now. [NAME] says that leave should be refused because [NAME] had an opportunity to raise the issue before the Tribunal. [NAME] addressed this incident as a victimisation complaint, not as part of [NAME]'s claim for damages. 37 Extension to the merits? The [NAME] has remarked that "It would not be proper to embark on a consideration of the merits where no error of law was established": [NAME] -v- Commissioner of Police [1999] NSWADTAP 8 at [4]. Even if the [NAME] has discretion to extend an appeal to the merits where no legal error has been identified, we are not persuaded that we should do so in this case. [NAME] was not legally represented before the Tribunal, he had a reasonable opportunity to put his case. The fact that lawyers have now considered his complaint and identified ways that it could have been better argued, does not justify the [NAME] re-opening the matter. Orders 1. The appellant's appeal is dismissed.

2. The cross-appellant's appeal is dismissed. Costs 38 We assume that as both appeals have been dismissed, neither party will pursue their application for costs. If that is not the case, then the parties should advise the Registry within 7 days of the date of these reasons and directions will be made for the filing of submissions in relation to costs and for the determination of any application.

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