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RAGLESS v OFFICE OF THE POLICE OMBUDSMAN [2015] SAEOT 2 (12 March 2015)

Last Updated: 17 March 2015

EQUAL OPPORTUNITY TRIBUNAL

(District Court Administrative and Disciplinary Division)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated.

RAGLESS v OFFICE OF THE POLICE OMBUDSMAN

[2015] SAEOT 2

Judgment of His Honour Judge Costello

12 March 2015





HUMAN RIGHTS - DISCRIMINATION

Complaint under the Whistleblowers Protection Act (WPA) and the Equal Opportunity Act alleging victimisation by the respondent on the ground that the complainant had made an appropriate disclosure of public interest information – public interest information asserted to be a failure by the Firearms Branch of South Australian Police to investigate properly an incident which complainant said occurred on the firearms range of his shooting club and the allegedly illegal behaviour of some officials at his club – complainant asserted that, in turn, the respondent failed to properly investigate his concerns – even on the assumption that the information disclosed was public interest information within the meaning of the WPA, it is not reasonably arguable that the respondent committed an act of victimisation in that any detriment suffered was not caused on the ground of his disclosure.

HELD: Complaint dismissed.

Whistleblowers Protection Act 1993 (SA) s 4, s 5, s 9 ; Equal Opportunity Act 1984 (SA) s 93, s 95, s 96 , referred to.

King v SA Psychological Board (1998) SASC 6621; Rogers v Department of Treasury and Finance [2013] SAEOT 8, considered.

RAGLESS v OFFICE OF THE POLICE OMBUDSMAN

[2015] SAEOT 2



Introduction

  1. In these proceedings the respondent has applied for an order dismissing the Complaint. It has made its application upon the basis that the complainant has no reasonable prospect of success of making out his Complaint.
  2. In the particulars supplied in support of his Complaint to the Equal Opportunity Commission, the complainant appeared to assert that he was entitled to protection under the Whistleblowers Protection Act 1993 (SA) (‘WPA’) because he had made an appropriate disclosure of public interest information within the meaning of the WPA.

The Statutory Scheme

  1. Section 5 of the WPA relevantly provides:
5—Immunity for appropriate disclosures of public interest information

(1) A person who makes an appropriate disclosure of public interest information incurs no civil or criminal liability by doing so.

(2) A person makes an appropriate disclosure of public interest information for the purposes of this Act if, and only if—

(a) the person—

(i) believes on reasonable grounds that the information is true; or

(ii) is not in a position to form a belief on reasonable grounds about the truth of the information but believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated; and

(b) the disclosure is made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure.

(3) A disclosure is taken to have been made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure if it is made to an appropriate authority (but this is not intended to suggest that an appropriate authority is the only person to whom a disclosure of public interest information may be reasonably and appropriately made).

(4) For the purposes of subsection (3), a disclosure of public interest information is made to an appropriate authority if it is made to a Minister of the Crown or—

(a) where the information relates to an illegal activity—to a member of the police force;

(b) where the information relates to a member of the police force—to the Police Ombudsman;

(c) where the information relates to the irregular or unauthorised use of public money—to the Auditor-General;

(d) where the information relates to a public sector employee—to the Commissioner for Public Sector Employment;

(e) where the information relates to a member of the judiciary—to the Chief Justice;

(f) where the information relates to a member of Parliament—to the Presiding Officer of the House of Parliament to which the member belongs;

(g) where the information relates to a public officer (other than a member of the police force or a member of the judiciary)—to the Ombudsman;

(h) where the information relates to a matter falling within the sphere of responsibility of an instrumentality, agency, department or administrative unit of government—to a responsible officer of that instrumentality, agency, department or administrative unit;

(i) where the information relates to a matter falling within the sphere of responsibility of a local Government body—to a responsible officer of that body;

(j) where the information relates to a person or a matter of a prescribed class—to an authority declared by the regulations to be an appropriate authority in relation to such information.

(5) If a disclosure of information relating to fraud or corruption is made, the person to whom the disclosure is made must pass the information on as soon as practicable to—

(a) in the case of information implicating a member of the police force in fraud or corruption—the Police Ombudsman;

(b) in any other case—the Anti-Corruption Branch of the police force.
  1. Section 4(1) relevantly provides:
4—Interpretation

public interest information means information that tends to show—
(a) that an adult person (whether or not a public officer), body corporate or government agency is or has been involved...—
  • (i) in an illegal activity; or
  • (ii) in an irregular and unauthorised use of public money; or
  • (iii) in substantial mismanagement of public resources; or
  • (iv) in conduct that causes a substantial risk to public health or safety, or to the environment; or


(b) that a public officer is guilty of maladministration in or in relation to the performance ... of official functions.
public officer means—

(a) a person appointed to public office by the Governor; or

(b) a member of Parliament; or

(c) a person employed in the Public Service of the State; or

(d) a member of the police force; or

(e) any other officer or employee of the Crown; or

(f) a member, officer or employee of—

(i) an agency or instrumentality of the Crown; or

(ii) a body that is subject to control or direction by a Minister, agency or instrumentality of the Crown; or

(iii) a body whose members, or a majority of whose members, are appointed by the Governor or a Minister, agency or instrumentality of the Crown; or

(g) a member of a local government body or an officer or employee of a local government body.
  1. Section 9 relevantly provides:
9—Victimisation

(1) A person who causes detriment to another on the ground, or substantially on the ground, that the other person ... has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation.

(2) An act of victimisation under this Act may be dealt with

(a) as a tort; or

(b) as if it were an act of victimisation under the Equal Opportunity Act 1984 but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort. (my emphasis)

...

(4) In this section—

detriment includes—

(a) injury, damage or loss; or

(b) intimidation or harassment; or

(c) ... or

(d) threats of reprisal.

The Equal Opportunity Act

  1. An act of victimisation under the WPA may be dealt with as if it were an act of victimisation under the Equal Opportunity Act 1984 (SA) (‘the EOA’).
  2. For the purposes of this application the EOA relevantly provides:
93—Making of complaints

(1) A complaint alleging that a person has acted in contravention of this Act may be made—

(a) by a person aggrieved by the act;

...

(1c) A complaint—

(a) must be in writing and set out the details of the alleged contravention; and

(b) must be lodged with the Commissioner.

(2) A complaint must be lodged—

(a) if the alleged contravention is constituted of a series of acts—within 12 months of the last of those acts;

(b) in any other case—within 12 months of the date on which the contravention is alleged to have been committed.

(2a) The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied—
(a) that there is good reason why the complaint was not made within the stipulated time period; and

(b) that in all the circumstances it is just and equitable to do so.
...

95B—Referral of complaints to Tribunal

If, in respect of a complaint, the Commissioner—

(a) is of the opinion that the matter cannot be resolved by conciliation; or

(b) has attempted to resolve the matter by conciliation but has not been successful in that attempt; or

(c) has declined to recognise the complaint as one on which action should be taken and the complainant has, within 3 months of being notified of the Commissioner's decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal, the Commissioner must refer the matter to the Tribunal for hearing and determination.

96—Power of Tribunal to make certain orders

(1) The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders:

(a) subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention;

...

(2) The Tribunal may, at any stage of proceedings under this Part—

(a) make an interim order to prevent prejudice to a person affected by the proceedings;

(b) make an order dismissing the proceedings.

...
  1. It may be seen from the above that in order for the complainant to succeed he must demonstrate that:
    • (i) he has made an appropriate disclosure of public interest information; and
    • (ii) the respondent committed an act of victimisation against him in that it has caused him detriment on the ground or substantially on the ground that he has made or intends to make an appropriate disclosure of public interest information.

The Public Interest Information

  1. The public interest information which the complainant asserts that he disclosed is related to an incident which occurred on the firearms range at his local gun club (the South Australian Field & Game Association Southern Branch) between himself and the then club secretary, Mr Peter Perry. He asserts that the incident was serious and dangerous but that the members of SAPOL’s Firearms Branch (FAB), to whom he disclosed this information, failed to investigate his report. He also asserts that the FAB took action to suspend his firearms licence on the basis of a spurious or malicious report from officials at his club designed to thwart his attempt to be elected as Secretary at his club.
  2. In related proceedings[1] the complainant outlined the incident in detail as follows:
I wish to lodge a formal complaint regarding an incident at the Southern Branch at a two day shoot on 19/9/12.

The incident highlights abusive language and un-save (sic) practice by Secretary of the branch and unfair and unreasonable treatment by the President.
  1. Some paragraphs later the complaint said:
I was standing about four metres North West of the stand and in a quiet conversation with Mark on rule interpretation interrupted by a very loud, ‘STEVE, SHUT THE FUCK UP’.

I looked up and Peter had turned in the stand, appeared noticeable agitated and angry and repeated, ‘JUST SHUT THE FUCK UP’.

I approached Peter and asked him to remove his shells from the gun, he turned to face the stand and I repeated my request. He replied that he was going to shoot.

When he left the stand I approached him and he said he did not want talk and would discuss it in the clubhouse.

I insisted and made the following comment, ‘PETER, IF YOU TALK DOWN TO ME OR ATTEMPT TO BELITTLE ME ONE MORE TIME, YOU WILL NOT ENJOY YOUR DAY’. Peter replied, ‘IS THAT A THREAT’? I repeated, ‘PETER, IF YOU TALK DOWN TO ME OR ATTEMPT TO BELITTLE ME ONE MORE TIME, YOU WILL NOT ENJOY YOUR DAY’. Peter asked ARE YOU THREATENING ME?

I do not remember this but Ross said that I replied something like ‘If that’s the way you take it then I am threatening you’.

We then moved on to station four without incident and on the way to five Peter wanted to get his hat and wanted us to start without him.

Allan was first up and on sighting the targets a branch that had been shot at was obscuring the view of the tower target. Allen shot the A target and put his second barrel at the branch which fell a couple of feet. I commented that now it obscured my view.

When Mark was in the stand he shot his first target and put his second shot into the branch which fell. Peter commented, ‘AS SECRETARY OF THIS CLUB AND SQUAD REFEREE IT IS MY DUTY TO INFORM YOU, IF THERE IS ANOTHER INCEDENT (sic) LIKE THAT I WILL REMOVE YOU FROM THE SQUAD AND YOU WILL NOT SHOOT AT THIS CLUB AGAIN’.

I shot the rest of the day and the last round on Sunday with Peter without further incident but I am sorry to say that in twenty three years of shooting Sporting Clays Peter is only the second person I will never shoot, or associate with again.

I was at the club from Friday night until about 4.30pm on Sunday and apart from a very short comment stating he would get the story from other members of the squad I had no action taken by the President to what I consider a very serious incident on a shooting range. As I have stated the President did not ask for my version or suggest I lodge a complaint even after hearing a version of the incident from at least two other squad members.

An incident report lodged with the President resulted in written confirmation of my version of the event from two of the squad members and a statement that the weekend was over and we all have to move on.

I believe there is no excuse for the treatment I received by both the President and Secretary of this club.

...
  1. I have considered in those related proceedings whether this incident is capable of constituting public interest information. In my opinion it does not.
  2. However, the essence of the disclosure of public interest information, which is asserted in this Complaint, is not the incident itself. The public interest information here is alleged to fall into two categories. First, there is an asserted failure on the part of the FAB to investigate the disclosure properly.
  3. For the purposes of these proceedings I am prepared to assume that this information is ‘public interest information’ as defined, although, on the material supplied, it is not entirely clear that it is.
  4. The other category of information relied upon by the complainant relates to the conduct of certain club officials which he asserts occurred in response to his report to club president of the incident on the shooting range.
  5. This information was detailed by the complainant in a letter to the Equal Opportunity Commission dated 12 February 2014. This letter relevantly records the following:
The club procedure is to report the incident to the branch president who has an obligation under the constitution to refer it to the State Body (Section 79) for an enquiry into the incident and notification to SAPOL under Section 21H if the incident was considered dangerous. Under this process Mr Perry the other squad members and I would have had to attend a meeting and comply with decisions made under the constitution by the State Council.

My verbal complaint to the Branch President (Mr Greg Dawes) was ignored so I sent a detailed complaint my Email and followed it up with phone calls. After stating that he and Bryan Stokes supported Peter Perry and telling me I had lost all credibility Greg Dawes hung up on me and a day or two later I found out he was planning to convince people I was in a state of Bi-Polar to protect Peter Perry. I should point out that I had at this point declared I would stand against Peter Perry at the imminent A.G.M.

Greg Dawes (Branch President), Bryan Stokes (Assistant Secretary) and Peter Perry (Branch Secretary and Stokes’s personal paid coach) coerced the association lawyer John Bennett to assist them in convincing the State President (David Rehn) and State Secretary (Darian Stringer) to support them. I had several communications with Darian Stringer who told me he was on the Firearms Legislation Advisroy Group with Angelo Pipos and warned me to ‘let the matter drop’.

When I sent an official complaint to Darian Stringer he contacted Angelo Pipos in the Firearms Branch who on Darian’s request sent out two of his police staff to remove my licence and firearms. My licence and firearms were seized under Section 27A of the Firearms Act that requires a prescribed person to report it after seeing me in their professional capacity. This did not happen and my Licence suspension was illegal.

Stringer had a two hour meeting with the Firearms branch who used this fale information to order an illegal suspension of my licence. To cover up this issue and provide the Medical report required for my suspension, the Firearms Branch directed Darian Stringer to the Rose Park Clinic who supplied a report that included false statements made by Stringer and then an amended report with all false accusations removed and signed on behalf of the physiologist by the practice receptionist. These are dated 7/11/12, nearly a month after my Firearms were suspended...

I had a meeting with a psychiatrist who stated as it was a firearms related issue she would have to monitor me over a three month period before she could offer her recommendations.

I continued with my election campaign and obtained seven nominations to replace Dawes, Perry and Stokes.

At this time Stokes sent an Email out to all members that in the subject of my action against Stokes for Defamation.

I have included this documentation and other information that indicates victimisation from Stokes on behalf of other members of the controlling body.

The next day I was notified of my immediate suspension from S.A.F.G.A and notified I could not attend the A.G.M.. All of these actions were completely illegal under the Association constitution.
  1. In relation to this category of information I will also assume that it constitutes public interest information.
  2. However, as I indicated earlier, in order to succeed the complainant must demonstrate that the respondent has caused him detriment on the ground or substantially on the ground that he has disclosed this public interest information.
  3. The question of what constitutes a ‘detriment’ for the purposes of the WPA was considered by Bleby J in King v SA Psychological Board,[2] where his Honour said:
It is not necessary in these proceedings to determine the full extent of the definition of ‘detriment’ contained in s 9(4) of the Whistleblowers Protection Act 1993. I am prepared to assume, for present purposes, that it is wide enough to cover loss of reputation and some forms of stress disorder, although I doubt whether it covers discrimination at large, given the limitation contained in paragraph (c) of the definition requiring, in the case of discrimination, relationship to a person’s employment. I am also prepared to assume the allegations in the Notice of Complaint and Further Particulars of Victimisation and Detriment are wide enough to include allegations of some form of stress disorder and loss of reputation. However, I should not be taken as conceding that the definition of ‘detriment’ is sufficiently wide to cover the appellant’s allegations. If, for example, the evidence were to show that he merely had some grievance that the respondent had not performed its statutory duty, I doubt whether the appellant could be shown to have suffered ‘injury, damage or loss’, being the normal meaning of the word ‘detriment’ or whether he could be shown to have suffered detriment in the extended meanings contained in the other paragraphs of the definition. However, for present purposes I must assume the most favourable case possible from the appellant’s point of view, and I therefore assume that he has suffered a detriment.
  1. As with other aspects of this Complaint, it is not easy to distill the nature and extent of any detriment caused to the complainant by the respondent.
  2. In a document entitled ‘Even Better Further and Better Particulars’ the complainant says that the actions and inactions of the respondent have contributed to ‘major defamation and economic loss’.
  3. In his oral argument the complainant spoke of the distress he suffered due to a failure on the part of the respondent to investigate his concerns properly. I will accept that the entire episode covering his proceedings against other related parties is likely to be the subject of some hurt feelings and/or distress and that such distress is capable of amounting to detriment for the purposes of the WPA.
  4. However, the question then arises as to whether the complainant has demonstrated that the respondent has caused him that detriment on the ground or substantially on the ground of his disclosure.
  5. As to this issue Bleby J, in King, said:
The appellant must then allege that that detriment was caused by the respondent and on the ground, or substantially on the ground, that he made the disclosure. In my opinion, that means that the respondent must have caused the detriment by virtue, or substantially by virtue, of the fact of the disclosure in itself. In other words, it must be shown that because the appellant made a disclosure of public interest information to the Board, the Board caused him some detriment. In effect, it must be some form of reprisal for the fact of making the disclosure.

The difficulty for the appellant is that nowhere in the documents he has provided does he make that suggestion. Merely because the respondent failed to hold a formal inquiry into the appellant’s complaint does not mean that it did so by way of some form of reprisal against the appellant for making the complaint. The failure to conduct a formal inquiry is just as consistent with the Board having reached the view that the information properly before it did not merit a formal inquiry. Far from suggesting that the detriment (if there was any) was caused by the Board on the ground, or substantially on the ground, that the appellant had made the disclosure, it is sufficiently clear from his allegations that the losses which the appellant alleges are losses that can only be remedied not only by a proper investigation carried out by the respondent, but by an investigation which brings about a particular result. The appellant’s real complaint is that the respondent has not carried out a disciplinary inquiry that brought about that result. Only that result will alleviate his alleged detriment. The appellant does not even allege that the investigation, if properly conducted, would necessarily lead to the conclusion that he desires. In paragraph 6 of his Notice of Complaint, the appellant claims that the psychologist’s behaviour is contrary to several sections of the Code of Professional Conduct and is contrary to s 26(3)(b) of the Psychological Practices Act 1973 and s 257 of the Criminal Law Consolidation Act 1936. By paragraph 13 of the same particulars, he alleges that by failing properly to investigate these matters, the Board could be corruptly involved in a scandalous cover-up of most improper behaviour - and is involved in a gross denial of justice (my emphasis).

Therefore, the appellant’s detriment (if there is any) is alleged to have been caused not on the ground, or substantially on the ground, that he made the disclosure, but on the ground that the Board did not act on the disclosure, and did not reach the conclusion he wanted it to reach.
  1. In the present proceedings the respondent, after receiving his report, initially informed him that a form of conciliation would take place.
  2. This conciliation did not take place, or at least not in the form which the complainant anticipated i.e. with a Senior Officer from the Internal Investigation Section. Instead, he had a meeting with two officers from the Firearms Branch. Needless to say the ‘conciliation’ was unsuccessful.
  3. The failure to have a conciliation in the form which he anticipated seems to be at the heart of at least part of his Complaint. Although I have some sympathy with his concerns in this regard, there can be no suggestion that this was done by the respondent as some form of reprisal for his disclosure. On the contrary, I was informed that the meeting with officers of the FAB was arranged due to a lack of resources within SAPOL.
  4. In any event, the fact that the conciliation expected by the complainant did not take place was not the end of the matter.
  5. The respondent went on to consider his complaint and to respond, in my view, in an appropriate manner. This response relevantly provided:
I refer to your complaint about the conduct of members of SAPOL’s Firearms Branch (FAB), in particular: (i) that they failed to investigate a report you made about a ‘serious and dangerous’ incident at the SA Field and Game Association Monarto Club on the 15th September 2012, and (ii) that they took action to suspend your firearm licence on the basis of a spurious report from club officials. You suggest there was an ulterior motive for making the report, namely to thwart your attempt to be elected as Secretary of the Club.

As you are aware the attempted conciliation of your complaint by Sergeant Gibson was unsuccessful. I have since reviewed the file in order to make a decision about whether your complaint warrants further investigation. Having conducted the review I have determined that your complaint not be referred for investigation. I have made this determination pursuant to s 21(1)(f) of the Police (Complaints & Disciplinary Proceedings) Act 1985.

In terms of the merits of the suspension of your firearms licence, this is not an issue I propose to express an opinion on. There is a statutory scheme for appealing decisions by the Registrar of Firearms, and in the event you believe the decision was unfair – because it was based on a malicious report or for any other reason – then you need to avail yourself of those rights of review. The only comment I will make is that notwithstanding the motives of the person making the report, it appears the psychiatric report obtained following your suspension recommended the continuation of the suspension.

In your correspondence you repeatedly make reference to the incident on the 15th September 2012, and the fact that it has not been investigated by the FAB. You initially made the report to the president of the club, and only referred it to the FAB after you were unhappy with the response you received from the president, and after your licence was suspended.

You detail how there was some reluctance on the part of the club secretary, Peter Perry, to move a target that was obstructed by a power line, and that he voiced his annoyance at your insistence that this happen. In the end the target was moved prior to any further shots being fired. You go on to state that shortly after this, while you were discussing the interpretation of rules with another member, Mr Perry angrily told you to ‘Shut the fuck up’ twice. You responded by approaching him and demanding that he unload his gun. He responded by ignoring you and proceeding to shoot the next target. You then approached him again and warned him that if he attempted to belittle you one more time he would ‘not enjoy (his) day’. When Mr Perry asked if you were threatening him you responded that you were (albeit you cannot recall saying this yourself). You also refer to another issue that arose over the shooting of a tree branch, however it is difficult to see how this would warrant further investigation by FAB.

While in recent contact with this office you have asserted that the issues you raise are extremely serious, even suggesting that you were in some way threatened with a firearm, this is not how you framed your complaint to the State Secretary back in September/October 2012. I refer in particular to the second paragraph of your letter where you state: ‘The incident highlights the abusive language and unsave(sic) practice by the Secretary of the branch and unreasonable treatment by the President’. It appears to me from the reports you made at the time that your grievance was related to the way you were spoken to, and the attitude of Mr Perry towards the power line issue, rather than anything more serious.

In my view the way you were spoken to by Mr Perry that day is not something that warranted an investigation by FAB. In terms of the safety issue around the power line, that was the subject of an investigation by members of the FAB. I have sighted the report and am satisfied the investigation conducted was carried out appropriately.

It follows from what I have discussed about that I do not consider there to be any evidence to support your assertions that members of the FAB have failed to respond appropriately to the matters you raise. While I appreciate you remain unhappy with the action they took, in my view no further action is warranted.

I shall now close this file.
  1. In my view, the observations of Bleby J in King are apposite to the facts of this case and the conduct of the respondent. The gravamen of the complainant’s concerns, apart from the failure to hold a conciliation as anticipated, are that the respondent did not agree with him that the FAB’s investigation was inadequate and nor did it inquire into the merits of his firearms licence suspension.
  2. As to the latter, in my opinion, the respondent, very properly, declined to investigate this aspect of the complaint. However, it did not dismiss that part of the complaint ‘out of hand’. Rather, it directed him to the review processes available to him if he felt aggrieved by the decision to suspend his firearms licence. As to the former, the fact that the investigation conducted by the respondent did not produce the result sought by the complainant does not mean that the respondent’s actions were in some way calculated to cause him detriment.
  3. In these circumstances, although I am prepared (but only for the purposes of this argument) to accept that the complainant did make an appropriate disclosure of public interest information and arguably also suffered a detriment, I am quite satisfied that the respondent has not committed an act of victimisation because, in my opinion, the detriment was not caused, on the ground or substantially on the ground, of his disclosure.
  4. Accordingly and in summary, I am satisfied that ‘it is not reasonably arguable that the complainant could succeed on the issues upon which he would need to succeed at trial’.[3]
  5. Accordingly, the Complaint is dismissed.

[1] Ragless v Stokes [2015] SAEOT 1.

[2] (1998) SASC 6621.

[3] Rogers v Department of Treasury and Finance [2013] SAEOT 8.