Neil Francey and Sue Meeuwissen v. Hilton Hotels of Australia Pty Ltd

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: GRAEME INNES

Nos. H97/50 & H97/51
Number of pages - 8

DATE OF ORIGINAL DECISION: 25 September 1997

DATE OF THIS DECISION: 10 March 2000

#DATE 10:03:2000
Appearances

The complainants represented themselves.

The respondent was represented by Dunhill Madden Butler, solicitors.

GRAEME INNES

1.       INTRODUCTION

On 25 September 1997 I delivered my decision in this matter. I found that, under section 103(1)(b)(i) of the Disability Discrimination Act 1992 (the Act), Hilton Hotels of Australia Pty Ltd had unlawfully discriminated against Sue Meeuwissen and Neil Francey on the grounds of their disability or their status as an associate of a person with a disability. I declared that, by way of compensation, the respondent should pay $2000 to Ms Meeuwissen and $500 to Mr Francey. In my decision I stated that before making further declarations under section 103(1)(b) I proposed that the parties file further written submissions in relation to the nature of such declarations. I took this course because, whilst having found that the respondent was in breach of the Act by allowing smoking in their premises which meant that Ms Meuwissen could not breathe, I was not clear what course - if any - could be taken to redress this discrimination. This question was a complex one, and I was of the view that it would benefit from being canvassed in a broader context. Therefore, I made directions pursuant to section 98 of the Act, and gained the agreement of the parties to receive submissions from the public. Various relevant organisations were contacted and notified of the terms of the inquiry, and a notice of the inquiry was placed on the Commission's internet site. The submissions received from the public were provided to the parties. The parties had the opportunity to address those submissions in their written submissions.

The complainants provided such written submissions. The respondent indicated that it did not wish to add to the submissions it had previously made.

2.       PUBLIC SUBMISSIONS

2.1       Overview of submissions

The providers of the public submissions were asked to address the issue of the nature and effectiveness of the following methods to enable people who suffer discomfort from environmental tobacco smoke to utilise premises operating as a nightclub:

(i) the complete prohibition of smoking at the venue;

(ii) the physical separation of smokers and non smokers;

(iii) separate smoking and non smoking environments within the venue ie with independent air sources; and

(iv) the use of ventilation/filtration systems.

The providers of the public submissions were also asked to address the issue of whether any other options exist which would enable people who suffer discomfort from environmental tobacco smoke to utilise premises operating as a nightclub.

Fifteen submissions were received including submissions from the Cancer Council, QUIT, Action on Smoking and Health (ASH) and a joint submission on behalf of W.D. & H.O. Wills (Australia Ltd), Philip Morris (Australia) Ltd and Rothmans of Pall Mall (Australia) Ltd.

2.2 The non-tobacco company submissions

Putting aside the submission of the tobacco companies which is summarised below a number of the submissions adopted a similar approach in that, generally speaking, they provided: background information on environmental tobacco smoke (ETS); an outline of the evidence of the harmful effects of ETS; a discussion of passive smoking as an indoor pollutant; an outline of the current legal position relating to ETS; an outline of the policy positions of international and Australian health authorities; an outline of community views about implementing smoking restrictions; and a discussion of the different options available which would enable people who suffer discomfort from environmental tobacco smoke to utilise premises operating as a nightclub. Most of the submissions were of the view that a smoking prohibition at the venue was the most effective option. A physical separation of smokers and non smokers was generally regarded as the next preferred option. A separate smoking and non smoking environment was regarded by some as a possible option. Others regarded this option as unsatisfactory. The bulk of these submissions were of the view that the use of ventilation or filtration was an unsatisfactory option. In conjunction with these submissions the Commission was provided with several reports or publications including: the Report by the NSW Passive Smoking Task Force to the NSW Minister for Health of February 1997 entitled "Passive Smoking in the Hospitality Industry -Options for Control"; a Report of the National Health and Medical Research Council of November 1997 entitled, "The Health Effects of Passive Smoking - A Scientific Information Paper"; a Guide to Passive Smoking and the Law produced by the Cancer Council entitled, "When Smoke Gets in Your Eyes . ."

2.3       The submission on behalf of W.D. & H.O. Wills (Australia Ltd), Philip Morris (Australia) Ltd and Rothmans of Pall Mall (Australia) Ltd.

In summary, the submission on behalf of W.D. & H.O. Wills (Australia Ltd), Philip Morris (Australia) Ltd and Rothmans of Pall Mall (Australia) Ltd is to the following effect: Ms Meeuwissen's complaint is that of an individual with a disability against the proprietor of a nightclub; Ms Meeuwissen's physical circumstances are specific to her; the Commission must disregard as irrelevant any submissions which address the broader issue (of people who suffer discomfort generally to environmental tobacco smoke) raised in its call for submissions; it is not open to the Commission to make declarations intended to "enable people who suffer discomfort from environmental tobacco smoke to utilise premises operating as a nightclub" as its discretion is limited to making such declarations as are appropriate to resolve the two complaints under inquiry; the nightclub has been renovated and Commission must ascertain the present state of ventilation in the nightclub; the Commission must ascertain whether the ventilation of the nightclub complies with the relevant Australian standard (AS 1668) covering indoor air quality in order to exercise its discretion; the Commission, in exercising its discretion, will have to take into account the fact that the respondent will be bound by the Smoking Regulation Act 1997 (NSW); if the Commission were to make further declarations it must balance the interests of the two complainants and the respondent, in particular it must recognise that to minimise the impact on the respondent's business the declarations must accommodate the interests of smoking and non smoking patrons and be capable of operating concurrently with the Smoking Regulation Act.

The submission asserts that, assuming the air standard of the nightclub complies with Australian standard AS 1668, the Commission make no further declaration because: (a) the air conditioning of the nightclub complies with the relevant Australian standard; (b) in due course the air conditioning will have to comply with the standard prescribed under the Smoking Regulation Act 1997 otherwise smoking in the nightclub will be banned; (c) it would be unfair to single out the respondent when the NSW Parliament has already adopted an across the board solution which will apply equally to all similar venues; (d) it would be a wrong exercise of the Commission's discretion to make a declaration that was inconsistent with the approach of the NSW Parliament and, by making no declaration the Commission can give practical effect to the intention of section 13(3) of the Disability Discrimination Act that it not exclude or limit the operation of a State or Territory law that can operate concurrently with it; (e) the facts upon which the respondent relied in support of the defence of unjustifiable hardship are relevant to the Commission's discretion and all count against making a declaration that will impose financial hardship on the respondent; (f) Ms Meeuwissen, as an Adelaide resident, would be an infrequent visitor to the nightclub; and (g) the Commission's determination, declarations already made and the publicity which they have attracted have provided the complainants with appropriate redress.

The tobacco companies also provided a supplementary submission which attached a report of a study undertaken by the International Agency for Research on Cancer which was called the Multicenter Case-Control Study of Exposure to Environmental Tobacco Smoke and Lung Cancer in Europe. The companies submitted the results of the study support its submission that no further declaration be made.

3.       SUBMISSIONS OF THE PARTIES

3.1       Mr Francey's submission

Mr Francey submitted that:

"It is apparent that, with the exception of the tobacco companies, all of the public submissions support prohibition of smoking in confined spaces as the preferred solution. The option of physical separation seems to be regarded as potentially effective but also potentially discriminatory and undesirable. The alternative of separate air-conditioning seems to be seen as possibly effective but expensive. The option of ventilation seems to be uniformly regarded as inadequate, unreliable, unsatisfactory and inappropriate. No other alternative received any significant degree of support and the option of occasional smoke free nights does not seem to be appropriate.

"Mr Francey submitted that: "In the circumstances, it is suggested that the form of order which should be made is that the respondent prohibit smoking on its premises within a specified period (say, three months) unless it can satisfactorily demonstrate that the alternative of separate air sources is effective. It may be that if this alternative is to be adopted the respondent should submit plans for its adoption to determine whether it is an acceptable alternative.

"Mr Francey stated that, "The submissions of the tobacco companies suggesting that there are no circumstances warranting the making of any further orders on the question of remedy ignores the finding of unlawful discrimination and the ongoing effect of that discrimination. There is no evidence that any changes to the subject premises have overcome the unlawful discrimination found to have existed.

"Mr Francey added, "As to the submission that the Commission should not make orders beyond the requirement of the Smoking Regulation Act 1997 (NSW), it is no answer to a finding of unlawful discrimination that an inadequate state statute has not yet become operational. Complaints before the Commission must be dealt with on a case by case basis and orders should be made of a kind which promotes the elimination of unlawful discrimination rather than make no orders and tolerate such unlawful discrimination by reason of deficient state legislation.

"He said, "As to the submissions based on Ms Meeuiwissen's particular disability, there is nothing unique in the fact that her lungs have "asthmatic tendencies" as this is a condition shared by a significant percentage of the Australian population many of whom are adversely affected by exposure to cigarette smoke. The focus on the fact that Ms Meeuiwissen underwent a double lung transplant misconceives the disability in respect of which she was discriminated against.

"Mr Francey submitted that, "the suggestion that the Commission's request for submissions is outside the legitimate scope of inquiry is misconceived and does not take into account the fact that a particular complaint may give rise to a finding of unlawful discrimination which has implications broader than the individual complaint which gave rise to the finding.

He stated, "It is not to the point that the respondent's nightclub has been renovated since the incident giving rise to complaint occurred. It is legitimate for the Commission to order that the respondent prohibit smoking unless the respondent can demonstrate that any renovations have been effective to achieve the result that unlawful discrimination will not occur.

"He submitted, "The Australian standard AS1668 - the use of mechanical ventilation for acceptable indoor air quality, is not an appropriate reference standard by reason of the limitations referred to in the submission of Dr Michael Sladden.

"He said, "The inadequate framework of the Smoking Regulation Act 1997 (NSW) is not relevant for the reasons previously stated. Any order made by the Commission would establish a standard for compliance with the Disability Discrimination Act 1992 (Cth) and on that account would provide a guide to the standard that comparable facilities should adhere to in order to comply with that legislation.

"He added, "The supplementary submission drawing attention to the October 1998 study in the Journal of the National Cancer Institute misrepresents the underlying conclusion of evidence, albeit weak, of a dose -response relationship between the risk of lung cancer and exposure to spousal and work place ETS. Furthermore the risk of lung cancer is only one harmful effect of exposure to environmental tobacco smoke and not the condition which gave rise to the subject complaint.

"In conclusion he stated that, "In all the circumstances, the Commission should order that the respondent prohibit smoking in its premises unless it can demonstrate, to the satisfaction of the Commission, that the alternative of separate smoking and non smoking environments with independent air sources provides an equally effective solution."

3.2       Ms Meeuwissen's submission

Ms Meeuwissen submitted that, "All public submissions to this Inquiry except for the submission from the tobacco companies support a complete prohibition on smoking at the venue.

" She states, "Prior to this Inquiry I was in favour of a separate area with separate ventilation for people to smoke, however, after reading the various submissions, I now fully support a complete prohibition on smoking at the venue. Page 45 of the Passive Smoking in the Hospitality Industry - Options for Control. Report by the NSW Passive Smoking Taskforce to the NSW Minister for Health, February 1997, elaborates on the Separate Smoking and Non-smoking Environments and concludes on page 46 that 'hospitality establishments being 100% smoke-free, is the only certain means whereby the hospitality industry patrons and employees are protected from exposure to ETS indoors'.

".She states, "The submission from W.D. & H.O. Wills (Australia) Limited, Philip Morris (Australia) Limited and Rothmans of Pall Mall (Australia) Limited is factually incorrect with regards to my disability and the submission opposes any appropriate remedial action. In the situation when a person is in a wheelchair and unable to enter a building because there is no ramp, whether that person is in a wheelchair because of cerebral palsy, muscular dystrophy, multiple sclerosis or a bizarre accident, the barrier is lack of a ramp. I have asthma and my barrier is environmental tobacco smoke.

Ms Meeuwissen states that, "The Smoking Regulation Act 1997 (NSW), is inadequate.

"Ms Meeuwissen supports Mr Francey's submission that:

"In all the circumstances, the Commission should order that the respondent prohibit smoking in its premises unless it can demonstrate, to the satisfaction of the Commission, that the alternative of separate smoking and non smoking environments with independent air sources provides an equally effective solution".

Ms Meeuwissen added that, "if the Commission determined that a separate smoking area with its own air sources was acceptable, smoking would need to be confined to that area alone; with no risk of smoke or people smoking exiting this space and placing any vulnerable person at risk. There is doubt, that in this option, the risk would be eliminated and for a person with a disability exacerbated by environmental tobacco smoke, this barrier needs to be removed."

3.3 The respondent's submission

The respondent advised that it did not have any further submissions to add in support of its earlier submissions. Those submissions were summarised in my earlier decision and also contained in the material filed by the respondent on 30 October 1997. A summary of those latter submissions follow. The respondent submitted that, "Evidence was given (transcript page 10.20) that [Ms Meeuwissen] was at the extreme range of people who were affected by environmental tobacco smoke. The complaint and the unlawful conduct relates only to the complainant. To order the Respondent to make further modifications to the nightclub would be unreasonable, given the evidence that the complainant is at the extreme end of those likely to suffer". It stated, "Any order that part of the nightclub be a smoke free area has already been held to be not the best option, as it `would restrict the free movement of the complainants to other areas of the nightclub' (Decision page 18.5.). There is also ample evidence that this is not practical at the venue due to location of the bars, dance floor and toilet (transcript page 113 -115). Evidence was also given that when this was first attempted at other nightclubs it was not successful (transcript page 99.30). The respondent submitted that, "If the Commission was minded to order that the venue be totally smoke free, the Respondent would suffer . . severe financial loss and the Respondent believes the nightclub would be unviable. Evidence was also given (Exhibits 9 and 11) that the only other venue in New South Wales that has a smoke free venue is Panthers at Penrith. Exhibit 11 discloses that there are two smoke free venues. The first being a restaurant and the second the `Evan Theatre' that is used for both stage shows and discos.

"The respondent submitted that the alternatives of air curtains and the arranging of air inflow "were considered in the evidence statement of Walter Annen and annexure from Bassett Consulting Engineers which states:

`2 Uni directional airflow and curtains. Air curtains are usually used only at transitorily occupied spaces such as entrance to shops and cool rooms where noise and draughts are not a significant factor. At the air velocities necessary to be acceptable from a noise and draught point of view in a night club environment, they are unlikely to provide an effective barrier to ETS and in any case, there is substantial turbulence and mixing at the air curtain which is likely to transfer ETS across the boundary. Accordingly we do not consider air curtains are likely to significantly improve the separation of the smoking and non smoking sections of the nightclub'.

"The respondent submitted that, "Since the date of the Complainant's visit, extensive modifications have been made to the air-conditioning in the nightclub and any further order is unnecessary.

"The respondent indicated a strong wish to be given the opportunity to make an oral submission if the Commission was considering making further orders. This wish was somewhat difficult to understand, given that the purpose of my inquiry was to consider whether I would make further orders. I did not provide a further opportunity for oral submissions, as I was satisfied that all parties, including the respondent, had had a more than adequate opportunity to make their own submissions initially, and to comment on the submissions received from the public. I have therefore based my decision on the submissions received.

4. FINDINGS

4.1 Breadth of this Decision

As indicated in my earlier decision, this inquiry does not relate to the efficacy of smoking in public premises, and to the effect of environmental tobacco smoke on the general community. It relates to a complaint lodged under the Act by two individuals, one of whom has a disability, and whether I should make further declarations pursuant to section 103(1)(b) of the Act, following my finding that discrimination has occurred. Any further declarations that I may make can only relate to the impact of environmental tobacco smoke in the respondent's premises on Ms Meeuwissen.

However, I do not accept the contention of the tobacco companies that any declarations which I make may only have an impact on the two complainants. Discrimination law, as are other areas of law, is full of examples of decisions made in favour of an individual which have had "flow-on" effects to a much broader group of the population. The only restriction is that this decision must deal with discrimination on the grounds of disability under the Disability Discrimination Act, not the efficacy of environmental tobacco smoke.

For the sake of convenience I quote here from my previous decision describing the nature of Ms Meeuwissen's disability. "Ms Meeuwissen lives in Adelaide. She has cystic fibrosis and had a double lung transplant in 1994. Her new lungs, whilst being free of cystic fibrosis, have asthmatic tendencies. Evidence was tendered by the complainants, and not disputed by the respondent, that 10% of the Australian population had such tendencies, and that such people were more susceptible to the problems caused by environmental tobacco smoke. Ms Meuwissen, as well as describing her disability in her own evidence . . . tendered a letter from her doctor, Dr Trevor Williams. It states in part: At present Sue has had an excellent result from lung transplantation and the aim of her ongoing therapy is to keep it this way. From this stand point, removing from her environment anything that may be potentially hazardous to her, including passive cigarette smoking. I believe that there is enough evidence as to the effect of passive smoking, to warrant my recommendation that Sue Meeuwissen needs to live in a smoke-free environment."

4.2 Relevant Statutory Provisions

The section of the Act which I am here considering is section 103(1)(b)(i) to (vii). The whole of the subsection is set out below, but the relevant subparagraphs are (i), (ii) and (vii). I have already made an award under (iv).103(1) After holding an inquiry, the Commission may: (a) dismiss the complaint the subject of the inquiry; or (b) if it finds the complaint substantiated-so find and make a determination which, if appropriate, may include any one or more of the following: (i) a declaration that the respondent had engaged in conduct, or committed an act, that is unlawful under a provision of Part 2 of this Act and should not repeat or continue such unlawful conduct; (ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; (iii) a declaration that the respondent should employ or re-employ the complainant; (iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (v) a declaration that the respondent should promote the complainant; (vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant; (vii) a declaration that it would be inappropriate for any further action to be taken in the matter. The subsection is drafted in broad terms. Once I have found the complaint substantiated, I am directed to make a determination which "if appropriate" "may include" the subparagraphs set out.

It is clear that I must make a determination. But I have already done this by awarding amounts of compensation to both complainants. So it would be possible for me to make no further determinations. This view is supported by subparagraph (vii) which allows me to make a declaration that "it would be inappropriate for any further action to be taken in the matter.

"Finally, the determinations listed in the subsection may be included if "appropriate". `Appropriate' is defined, relevantly, in the Macquarie Dictionary as "suitable or fitting for a particular purpose, person, occasion . ." This definition is also relevant for the consideration of subparagraph (vii) as I must determine if it would be "inappropriate" for any further action to be taken in the matter.

4.3 Options For a Determination

Amongst the subparagraphs relevant in the circumstances of this complaint ((i), (ii), (iv) and (vii)) there are four possible alternative determinations which I could make. These are-that the respondent should not repeat or continue its unlawful conduct;

that the respondent should redress any loss or damage suffered by the complainant;

that the respondent should pay damages to the complainant; and

that I should take no further action.

In this set of circumstances, the second and third alternatives relate to the same result ie the redressing of any loss or damage suffered by the complainant. If the discriminatory actions of the respondent had caused some damage to a piece of equipment that the complainant used for mobility, for instance, it would be appropriate for me to direct that such equipment be repaired or replaced. But this is not the case here. Damages are the only possible remedy in these alternatives, and I have already made that determination.

I am therefore left with the question of whether to make a declaration under subparagraph (i) that the respondent's unlawful conduct be not repeated or continued, or under subparagraph (vii) that it would be inappropriate for any further action to be taken.

4.4 Ways in which a determination under subparagraph (i) could be achieved

As set out earlier in this decision, there are four options which the respondent could take so that it did not repeat or continue its unlawful conduct. These are-

(i) the complete prohibition of smoking at the venue;

(ii) the physical separation of smokers and non smokers;

(iii) separate smoking and non smoking environments within the venue ie with independent air sources; and

(iv) the use of ventilation-filtration systems.

The public inquiry requested those making submissions to suggest other options, but none were forthcoming.

The option most favoured, by both the complainants and others making submissions, was the complete banning of smoking at the venue. Because it was the most favoured I will consider it last among the available options.

4.4.1 Separation of Smokers and Non-Smokers

The complaint is made against a part of the hotel which functions as a nightclub. The only practical way, it seems to me, to achieve this option, would be to run two separate nightclubs, one for smokers and one for non-smokers. I am not prepared to determine that the respondent should take this action for several reasons-

Firstly, the Objects of the Act are to remove barriers, physical or attitudinal, which prevent people with a disability from fully participating in society. Whilst the establishment of two separate venues would mean that Ms Meeuwissen and others with a similar disability would be able to attend the non-smoking venue, in effect a barrier would still be in existence. People would have to make a decision about which venue they attended. Groups of friends attending the nightclub could be divided on this issue. In some circumstances the establishment of an equivalent parallel service is appropriate whilst the main service is being made accessible. But a nightclub is not like a transport service, and to have two separate venues would mean that it was not ultimately completely available to all members of the community.

Secondly, I accept the evidence of the respondent that to run two separate venues would not be viable. Therefore my determination would effectively mean that the nightclub portion of the hotel would be closed. Whilst this argument is often used by respondents in circumstances such as this with little basis in fact, I am satisfied from the evidence that was presented to me in the hearing that in this case the argument is true. I am not prepared to make a declaration which has such a consequence.

4.4.2 Separate Smoking and Non-Smoking Environments within the venue

Submissions received to the public inquiry generally indicated that this is simply not a viable option. Whilst it was supported in submissions of the complainants, the same submissions raised issues which suggested that it could not be achieved. Such matters as residual environmental tobacco smoke in furniture, curtains and carpets, and the lack of effectiveness of air curtains support this conclusion. I refer in particular to submissions from the Northern Territory Health Service and the National Heart Foundation which, although generally supporting many of the complainants contentions, ruled out this option.

Further, the integrity of such non-smoking areas could easily be breached by a person moving around the venue while smoking, and such activity would be hard for the respondent to effectively police.

4.4.3 The use Of Ventilation-Filtration Systems

Once again, the weight of evidence in submissions suggested that this was not a viable option. Whilst the respondent asserted that subsequent to the hearing it had installed more effective systems, it is by no means clear that the problem has been entirely removed. The conclusion from the submissions received is that, whilst minimisation can take place, eradication is not yet possible with the systems available. One of the reasons for conducting a broader public inquiry into this matter was that I had hoped that a solution in the form of this or the previous option could be found. Unfortunately, none was forthcoming.

4.4.4 Prohibition of Smoking at the Venue

As indicated earlier, this was the option most favoured by submissions in support of the complainant. It has the merit of simplicity. Many submissions also argued that it would be of benefit to both patrons and staff of the nightclub as a whole, but this is not a matter for my consideration.

It was argued in some submissions that a compromise could be to have certain non-smoking nights. But this is not viable for a number of reasons. It would be impossible for the respondent to determine on which nights non-smokers would be more likely to attend and smokers less. Whichever nights were chosen some people, on both sides of the issue, would be dissatisfied.

Further, from the complainant's own submissions, the residual environmental tobacco smoke in furniture, curtains and carpets would require thorough cleaning to remove it. It would not be viable for the respondent to do this one or several times a week.

The respondents again argued that to make the venue a non-smoking venue would make it non-viable as a business proposition. I am not so persuaded by this argument, as the evidence for the contention appears to be much more tenuous, and based on assumption and "gut-feeling". Evidence was brought by both sides on the viability and non-viability of smoke-free venues, but it was inconclusive. The question of the venue's ongoing viability is not, in itself, persuasive.

Whilst this decision does not relate to the general community debate over the efficacy of environmental tobacco smoke I cannot make the decision in a vacuum. Many public entertainment venues (although not nightclubs) are already smokefree. Several State governments have legislated to ban smoking in restaurants, hotels, clubs etc. In NSW, where the respondents venue is situated, legislation was passed by Parliament in 1997 which provides that smoking will not be allowed in public entertainment venues which do not comply with clean air standards five years after these standards have been introduced. However, no such standards have been promulgated.

It is clear that momentum is building to ban smoking in public entertainment venues. In this context it seems to me inappropriate to single this venue out for an earlier ban because a complaint has been successfully brought under the Disability Discrimination Act. For this reason, I am not prepared to support this option.

5: CONCLUSION

In my original decision, I found that discrimination had taken place, and made awards of damages to both complainants.

I conducted a public inquiry in an attempt to find a solution which would mean that the discrimination against the complainants did not continue. Essentially, this process was unsuccessful, as no viable method was proposed to prevent the impact of environmental tobacco smoke on the complainant.

The only viable way to prevent the discrimination from occurring was to declare that the respondent should no longer allow smoking in the venue, and I found that this was not an appropriate course of action for me to take for the reasons set out above.

I declare that, pursuant to section 103(1)(b)(vii) of the Act, it would be inappropriate for any further action to be taken in this matter.