BRIGGS and PROFESSIONAL COMBAT SPORTS COMMISSION - [2012] WASAT 57

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: PROFESSIONAL COMBAT SPORTS ACT 1987

CITATION: BRIGGS and PROFESSIONAL COMBAT SPORTS COMMISSION [2012] WASAT 57

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR G WARNER (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)

HEARD: 30 NOVEMBER 2011 AND 1 DECEMBER 2011

DELIVERED : 27 MARCH 2012

FILE NO/S: VR 232 of 2010

BETWEEN: PAUL BRIGGS
Applicant
AND
PROFESSIONAL COMBAT SPORTS COMMISSION
Respondent

Catchwords:

Combat sports - Boxing - Whether sham contest - Whether subjective conduct required - Words and phrases - Sham contest - Stalls - Pretends - Feigns - Postures

Legislation:

Boxing Control Act 1987 (WA), s 47, s 47(7), Pt III, Pt VII, s 23
Professional Combat Sports Act 1987 (WA), s 3, s 10, Pt III, s 16, s 17, s 19, s 21, s 23, Pt VI, Pt VII, s 44, s 45, s 47, s 47(3), s 47(4), s 47(5), s 48, s 48(2)(d), s 48(3), s 49, s 51
State Administrative Tribunal Act 2004 (WA), s 24, s27, s 29

Result:

Finding and penalty set aside

Category: B

Representation:

Counsel:

Applicant: Mr P Lange
Respondent: Mr S Nunn

Solicitors:

Applicant: Lawyers Corp Pty Ltd
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Paul Briggs sought a review of a decision of the Professional Combat Sports Commission to forfeit $75,000 of his purse and to cancel his registration as a contestant by reason of a finding that he had participated in a sham contest. The decision was made following a world boxing title fight between Mr Briggs and Mr Danny Green that ended when Mr Briggs was knocked out after 15 seconds.
The Commission found that the contest was a sham because Mr Briggs had failed to adequately disclose his medical condition prior to the fight. At the hearing before the Tribunal it argued that the fight was a sham because, objectively viewed, the preparation by Mr Briggs was so inadequate that he could not genuinely compete.
The Tribunal examined the events and Mr Briggs' relevant medical history leading up to the fight. It considered the definition of a 'sham contest' in the Professional Combat Sports Act 1987 (WA). It concluded that the definition required intentional action by a participant rather than an objective analysis of whether the parties were mismatched by reason of their different levels of preparation.
Accordingly, the application for review was allowed and the Commission's finding and penalties were set aside.

Introduction

On 21 July 2010, the applicant, Mr Paul Briggs, challenged Mr Danny Green for the International Boxing Organisation Cruiserweight World Title at Challenge Stadium, Perth. About twenty nine seconds after the bell rang to commence the first round, Mr Green was declared the winner by knockout. Mr Briggs had been felled by a blow to the top of his head approximately 15 seconds into the fight. The crowd was not pleased. An inquiry by the Professional Combats Sports Commission (PCSC or Commission) followed, and led to a conclusion by the PCSC that Mr Briggs had participated in a 'sham contest', thus rendering him liable to sanctions under the Professional Combat Sports Act 1987 (WA) (PCS Act). Having reached that conclusion, the PCSC ordered that Mr Briggs forfeit to it the sum of $75,000 from the money payable to him in relation to the fight (out of his total purse of $200,000), and ordered that his registration as a contestant in Western Australia be cancelled.
Mr Briggs sought a review of that decision by the Tribunal. The issue which falls for determination is whether Mr Briggs participated in a 'sham contest' as defined in the PCS Act. If so, then the question arises as to whether the sanctions imposed are appropriate.
'Sham contest' is defined in the PCS Act to mean 'a contest in which the contestants in the contest are stalling or posturing or pretending or feigning to fight or otherwise compete'.

The PCSC decision

Mr Brigg's was advised of the outcome of the PCSC inquiry by letter dated 2 November 2010. The letter is notable for its brevity. It stated that:
[T]he Commission is positively satisfied that, by not disclosing at anytime [sic] to the examining doctors, your opponent or the Professional Combat Sports Commission the complete picture of your medical condition in relation to your 'nervous system' and ability to mount a credible defence, you have participated in a 'sham contest' pursuant to Sections 47(4) & (5) of the Professional Combat Sports Act 1987 (the Act).
As a result, based upon;
a)   The fact that this was an IBO World Title fight;
b) The size of the purse (approximately $200,000 payable to the challenger);
c)   The degree of subterfuge involved;
d)   The discredit brought to boxing both nationally and internationally;
and after taking into account;
i)   your antecedents;
ii)   your co-operation with the Commission;
iii) your boxing history and record;
The Commission has resolved;
i) Pursuant to Section 47(5) of the Act, your are ordered to pay $75,000 to the Commission from the money payable to you in relation to the fight;
ii)   Pursuant to Section 23(1) (ca) & (d) of the Act, your registration as a contestant in Western Australia is cancelled.
It is not immediately apparent how the finding of nondisclosure referred to in the PCSC's letter of 2 November 2010 fits within the definition of 'sham contest' under the PCS Act. In its statement of issues, facts and contentions, the PCSC identified its primary contention as being that 'the applicant was simply not capable of genuinely competing in such a contest; i.e. against the reigning champion (for the reasons outlined in the letter of 2 November)'.
The process followed by the PCSC to reach its conclusion was not clear from the materials provided to the Tribunal, and Counsel for the respondent was unable to cast any light on that question. What was before the Tribunal was an investigation report prepared by Verifact Investigations Pty Ltd (Verifact), representatives of whom had conducted inquiries and interviews of various people associated with the contest. The conclusion reached in that report was that it was 'the firm consensus of the Match Referee, Judges and postfight Doctors, that Mr Briggs was felled legitimately by a blow from Danny Green that ended the contest and we have found no evidence to the contrary'. Consistent with that conclusion, the PCSC, in its statement of issues, facts and contentions before this Tribunal, made it clear that it had not made any finding and did not allege in the proceedings before the Tribunal that Mr Briggs 'took a dive'. The PCSC accepted, on the basis of its review of the video footage of the fight, that the punch thrown by Mr Green which felled Mr Briggs had made contact with his head.

The PCS Act

Having regard to the approach taken to the definition of 'sham contest' by the PCSC, it is helpful to understand the operation of the PCS Act.
The PCS Act was originally enacted as the Boxing Control Act 1987 (WA) (Boxing Control Act). The Boxing Control Act regulated the sport of boxing. In 2003, the title to the Boxing Control Act was changed to its present title, and the reach of the Act was extended to other martial arts and sports which involve contestants striking, kicking, hitting, grappling with, throwing or punching other participants.
In its written submissions, the PCSC noted that the notion of a sham boxing contest was first introduced in s 47 of the Boxing Control Act. The definition then found in s 47(7), which in turn was found in Pt VII of the Boxing Control Act was, in substance, the same as the definition of 'sham contest' which now appears in s 3 of the PCS Act. The PCSC referred to various passages from the parliamentary debates in relation to the Boxing Control Act which, it submits, provide a background of the concerns which led to the enactment of the Boxing Control Act which informs the definition of 'sham contest' as it now appears in the PCS Act. The first of those passages was:
Part III of the Bill ensures that all persons wishing to engage in boxing contests be registered. Each boxer will be required to attest to his medical condition which will need to include a medical history at the time of application and at the time of subsequent renewals. The intent of this section is to ensure that boxers are prepared for contest well before the event, that they maintain themselves at appropriate boxing fitness levels and that they boxed in their professional class or classes. (Western Australian Parliamentary Debates (19 May 1987) at 1002 - Honourable Graham Edwards - Minister for Sport and Recreation) (emphasis added by PCSC)
The remaining passages, which it is not necessary to set out in full, touch upon concerns of unfit fighters, particularly from overseas, being brought in to fight when they are unfit for the particular contest.
The first thing that can be noted about that passage is that the comment by the Minister related to Pt III of the Bill, and in particular to cl 16 which specified that an application for registration should be accompanied by, amongst other things, 'a medical certificate as to the applicant's medical fitness to be a boxer in the class in respect of which registration is sought'. As we will discuss below, there are a number of mechanisms in the PCS Act designed to ensure that the participants in contests are physically fit for the contest. We do not consider that the passages from Hansard referred to by the PCSC assist in construing the words of the definition of 'sham contest' which appeared in a different part of the Boxing Control Act.
The PCS Act establishes the PCSC. Section 10 of the PCS Act outlines the functions of the PCSC. Those functions include the formulation or recommendation of standards, specifications, codes of conduct or other forms of guidance for maintaining proper standards in professional combat sport and for the preparation and training of persons participating in professional combat sports.
Part III of the PCS Act deals with registration of contestants. As mentioned, s 16 requires a person who wishes to be registered as a contestant to apply, and provide certain information including a medical certificate as to their fitness to be a contestant of the class in respect of which registration is sought. Section 17 requires the PCSC to register a contestant when it is satisfied of certain things, including the contestant is fit to be registered as a contestant in the prescribed class. The Commission may, instead of registering the applicant in the class referred to in the application, if it is of the opinion that it is in the interests of the health and safety of the applicant, register the applicant in a different class or for a limited period of time.
Section 19 of the PCS Act provides that registration has effect until the following 30 June, that application for renewal may be made, again accompanied by a medical certificate as to the applicant's fitness. The PCSC is required to be satisfied of the same matters in respect of renewal of registration as it is required to be satisfied in respect of registration.
Section 21 of the PCS Act empowers the Commission, where it forms an opinion that it is in the interests of health and safety of a contestant to do so, to cancel or alter the registration of a contestant.
Section 23 empowers the PCSC to impose various disciplinary penalties where it forms an opinion that a contestant -
(a)is not a fit and proper person;
(b)has committed an offence against the PCS Act;
(c)has not complied with any condition or restriction imposed on him under the PCS Act; or
(ca)has participated in a sham contest,
Section 23 falls within Pt III of the PCS Act. The reference to a 'sham contest' as a basis for disciplinary action under s 23 was not, however, introduced until 2003. Prior to that time, Pt III of the Boxing Control Act contained no reference to sham contests.
It can be seen that the PCSC is given, by Pt III of the PCS Act, responsibilities designed to ensure that registration is given only to participants whom they are satisfied are fit to compete. Those provisions confirm, in our view, that the observations made in the various passages of Hansard referred to, were directed to the operation of Pt III of the Boxing Control Act.
The Commission's role in relation to medical fitness of contestants is reinforced by Pt VI of the PCS Act. That part deals with a requirement of the Commission to issue, upon registration of the person, a medical record book in an approved form. Several sections create offences of altering or falsifying or damaging medical record cards contained within a medical record book.
Part VII deals with contests. Section 44 requires an application to be made to conduct a contest not less than 20 days 'or such lesser period as is approved by the Commission, prior to the proposed date of the contest'. By s 45 of the PCS Act, the Commission is empowered to issue a permit where it is satisfied that the applicant for the permit is registered as an industry participant in the appropriate class, and that all the requirements of the Act as they apply to the contest will be complied with.
Section 47 makes it an offence for a person to 'participate or agree to participate in a sham contest; or promote or arrange a sham contest'. Section 47(3) requires a referee to stop a contest when he or she forms an opinion that it is a sham contest, and requires that the matter be reported to the PCSC. The Commission is then required to inquire into the 'promotion, arrangement and conduct of the contest' (s 47(4)). Section 47(5) provides that, where, after inquiry, the Commission is satisfied that a contest is a sham contest, the PCSC:
may order that any money or money’s worth paid or payable to a contestant or industry participant who, in the opinion of the [PCSC], has participated in, promoted or arranged the contest be paid to the Commission and if not so paid may be recovered by the Commission in any court of competent jurisdiction.
Section 48 requires contestants to participate in a weighin prior to a contest. At the weighin, the promoter or a representative of the promoter, a medical practitioner approved by the Commission, and a person appointed by the Commission, are required to be present. Section 48(2)(d) provides that:
the medical practitioner referred in paragraph (b)(ii) shall -
(i)carry out a medical examination of each participating contestant;
(ii)record the examination on a form approved by the Commission; and
(iii)give the form to the person referred to in paragraph (b)(iii);
Section 48(3) provides:
The medical practitioner conducting the medical examination referred to in subsection (2)(d)(i) shall inform the persons referred to in subsection (2)(b)(i) and (iii) if the medical practitioner is of the opinion that a contestant should not participate in the proposed contest because of the contestant’s medical condition.
Penalty: $1 000.
Section 49 provides:
Medical practitioner to notify referee at contest if contestant unfit to participate; and referee to take action
(1)A medical practitioner approved by the Commission who is present at a contest shall inform the referee officiating at the contest if the medical practitioner is of the opinion that -
(a)the contestant should not participate in the contest because of the contestant’s medical condition; or
(b)the contestant should not continue to participate in the contest because of the contestant’s medical condition.
Penalty: $2 000.
(2)A referee who, under subsection (1), is informed of a medical practitioner’s opinion that a contestant should not participate in, or continue to participate in, the contest because of the contestant’s medical condition shall ensure that the contestant does not participate in, or continue to participate in, the contest.
Penalty: $2 000.
Section 51 requires a promoter of a contest to, amongst other things, examine the medical record book of a contestant who proposes to participate in a contest before the contest takes place.

Evidence before the Tribunal

The Tribunal heard from a number of witnesses. They included Mr Briggs, his trainer Mr Billy Hussein, two medical specialists, Dr Patrick Golden (a specialist in emergency medicine) and Dr Ross Goodheart, a consultant neurologist, and two witnesses with extensive experience in the boxing industry, Mr John Lewis, and Mr Scott Brouwer. In addition, the Tribunal received in evidence the respondent's s 24 bundle of documents, which was principally comprised of the Verifact report and the statements and other documents appended to that report. The Tribunal also had the opportunity of reviewing the video footage of the fight.
There were clear inconsistencies in some significant respect between Mr Briggs' evidence at the hearing (which was subjected to crossexamination) and statements made by others to the Verifact investigators. We found Mr Briggs to be an honest witness. At times he gave evidence which was apparently contrary to his interests. He did so quite candidly. Mr Briggs readily accepted responsibility for his own conduct and decisions in relation to the fight with Mr Green. He did not seek to criticise the conduct of others. His account of events does, however, raise scope for significant criticism of the conduct of some people associated with the lead up to the contest. In particular, significant concerns arise in relation to the conduct of the prefight medical examination carried out by Dr Malcolm Rivers, the medical practitioner appointed by the PCSC for that purpose. Concerns also arise as a result of Mr Briggs' account of how the fight came to be arranged by the promoter, Green Machine Promotions, which was associated with Mr Green. Further concerns arise in relation to the manner in which, in circumstances we will outline below, the application to conduct the fight was dealt with by the PCSC as a matter of urgency, well within the notice period of 21 days usually required pursuant to s 44 of the PCS Act.
Dr Rivers was not called to give evidence before the Tribunal, and although he apparently answered some initial questions from the investigators from Verifact, he did not make himself available for formal interview. He failed, despite invitation by Verifact, to respond to a notice of allegations that had been made about his conduct. None of those engaged in the promotion of the fight on behalf of Green Machine Promotions, and nobody from the PCSC, gave evidence before the Tribunal (other than by way of their statements submitted to Verifact).
In the absence of hearing from those various persons, it would not be appropriate for the Tribunal to make adverse findings against any of them. Although, by virtue of s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal's review is by way of a hearing de novo, and by virtue of s 29 of the SAT Act, the Tribunal has all of the functions and discretions corresponding to those exercisable by the original decision maker, the rules of procedural fairness require that the Tribunal's review, in this case, be confined to determination as to whether findings, so far as they concern Mr Briggs, should stand. The Tribunal is not, therefore, in a position to make a full inquiry into 'the promotion, arrangement and conduct of the contest' the task with which the PCSC was charged under s 47(4) of the PCS Act. As already observed, it is not possible from the materials before the Tribunal to discern what, if any, consideration the PCSC gave to the role of anyone other than Mr Briggs, and his trainer, Mr Hussein.

Mr Briggs' background

Mr Briggs is aged 36. He first became involved in combat sports when he was eight years old. He commenced kick boxing at the age of 16, and had 78 fights with only five losses. Forty eight were won on a knockout.

He became a professional boxer at the age of 24. His career spanned approximately 10 years, during which he had 30 fights, winning 26. Of those, 20 were won on a knockout. He retired in 2007. At that time, he had health issues and consulted a naturopath. He said he had been advised he had a condition known as 'adrenal fatigue'. His symptoms improved following treatment by the naturopath, to the point where he considered himself cured. He said he held that belief, notwithstanding that the naturopath told him that he would 'never be able to push himself hard again'. He said that, when he trained for the Green fight, they took that into account. His trainer was aware of the position, and he said that he discussed it with Dr Lewis. He said that both the naturopath and Dr Lewis told him that the situation would not prevent him competing at the elite level, and that others (he mentioned triathletes) were known to have competed at the elite level with Mr Briggs' condition.
He also received treatment from his general practitioner, Dr Lou Lewis, who was 'knowledgeable about boxing'.

Arrangements for the fight

Mr Briggs said that, after he had retired, he was in Perth doing television commentary for a fight in which Mr Green was participating. He spoke to Mr Green who was 'fishing around' as to whether Mr Briggs might be interested in a fight with him. No agreement was reached at that stage for a fight between them.
Subsequently, Mr Briggs was in Queensland when he received a telephone call from Mr Justin Manolikos, whom Mr Briggs described as Danny Green's manager. Mr Manolikos enquired whether Mr Briggs would like to fight Mr Green. Mr Briggs said that his initial response was to reject the proposal, observing that he had offered to fight Mr Green on three occasions prior to retiring, and expressing his surprise that the request would now be made. He said, however, that that conversation sparked an interest, and over the next couple of months he considered the possibility further.
Mr Briggs said that he had maintained a reasonably high level of fitness since his retirement from boxing. Over the two months following the initial approach by Mr Manolikos, the thought of a possible return to the ring having been sparked by the approach, Mr Briggs commenced doing some light training work, including shadow boxing and running.
After a couple of months, probably around February 2010, Mr Manolikos again contacted Mr Briggs. He enquired as to whether Mr Briggs had considered his earlier proposal. Mr Briggs said that he responded by saying that, were he to fight, he would want to do it properly, and would want at least the rest of the year (approximately a further 10 months) to prepare.
Mr Briggs said that Mr Manolikos contacted him some time later, and said that a date was available in approximately one month's time. Mr Briggs responded that that was insufficient time to prepare. Mr Manolikos then again contacted Mr Briggs, and suggested a date three months hence. Mr Briggs said that he responded that that would be an adequate time to enable him to have a warmup bout before meeting Mr Green. He said that Mr Manolikos responded that if there were to be a warmup bout, the fight with Mr Green was 'off'. Mr Briggs also said that he had also had a conversation with Mr Green in which he urged Mr Green to give him time to fully prepare, and to have a couple of warmup fights, but Mr Green simply shook his head. He said that he responded to Mr Green that it was a joke and that they were not serious.
Mr Briggs said that, notwithstanding that view, he accepted the fight on the basis that he believed that he was capable of knocking anyone out, as his past had demonstrated. He said that in his 108 fights, he had had many where he had hopped into the ring with apparently no chance of winning, and proceeded to knock out his opponent in one round. He said that his life experience told him that 'I could believe in the power that I possessed', and that he had no experience otherwise. He said he now accepts that that belief was misplaced.
Mr Briggs said that he had had previous experience of promoters 'snagging him early', by which he meant trying to get him to fight when he was not fully prepared. He had nevertheless been successful in those fights, and believed that he was able to prepare quickly for the level of fitness required for a high level contest.
Mr Briggs said that he was subsequently contacted by the Green camp and told that the initial date for the fight, which had been about three months after he agreed to it, was to be brought forward. He expressed disbelief at that, but still considered that he was capable of adequate preparation and, based on his experience, knocking out his opponent early in the bout. As a result, Mr Briggs was ultimately left with six weeks to prepare for the fight. That resulted, he said, in the necessity to not overdo the training. He said that the strategy which he adopted was to endeavour to knock Mr Green out, and that fashioned the manner in which he went about his preparation.
Part of Mr Briggs' preparation involved sparring. He said that he had some 98 rounds of sparring in the course of his preparation. Mr Briggs stressed that a very important part of preparation for a fight is the psychological preparation as much as the physical preparation. He said that, by the end of the six week preparation, he was convinced that he could win the fight.
Mr Briggs explained that the fight was to be at cruiserweight, the cut off weight for which is 90 kilograms. The contract signed by Mr Green and Mr Briggs specified, however, that they would weigh in at no more than 84 kilograms. It was clear that Mr Briggs would have considerable difficulty in meeting that weight, and he ultimately failed to do so.
Mr Briggs said that, by the time of the fight, he was mentally and psychologically prepared, although his physical preparation was limited. He said that this did not cause him concern because he had previously been successful in fights when his physical preparation was incomplete, including on one occasion when he fought on two days notice. As a result, he was not concerned as to any inadequacy in his physical preparation.
Mr Briggs engaged Mr Billy Hussein as his trainer for the Green fight. Mr Hussein gave evidence at the hearing. He substantially confirmed Mr Briggs' evidence as to the level of preparation. He confirmed the number of sparring rounds in preparation, and that he had taken Mr Briggs to training camps in Perth and Brisbane respectively. He said that when Mr Briggs commenced training he looked a little rusty, but with time he improved, and at the end of the six weeks which they had for training, he thought that Mr Briggs was capable of winning.
Mr Manolikos did not give evidence before the Tribunal, and does not appear to have been interviewed by the Verifact investigators. Mr Green was. His version of the arrangements for the fight differed in some respects from that of Mr Briggs. In particular, he differed as to the situation in relation to warmup fights for Mr Briggs. Mr Green's version was that he thought warmup fights by Mr Briggs would be good for his preparation, but Mr Briggs declined the fights on the basis that 'he can only get up to a big occasion'. That conflict was never put to Mr Briggs in cross-examination, and Mr Green's evidence suggests that most of the arrangements were made by Mr Manolikos with Mr Briggs, rather then by Mr Green personally. In those circumstances, we have no basis to disbelieve Mr Briggs' version of events.
Interestingly, in response to a proposition put to him by the investigators that Mr Briggs wanted a longer time to prepare, Mr Green said 'even if you'd been out of the sport for 10 years, you wouldn't need more than three months to prepare for a fight'. Mr Green said that he does a six week preparation for 12 round world title fights.
Mr Scott Brouwer is a member of the Victorian Professional Boxing and Combat Sports Board, a position he has held since 2000. He was a professional boxer for six years. He was asked to express an opinion as to the adequacy of Mr Briggs' preparation. His opinion was that the length of time required for preparation will vary depending on various factors. He thought a preparation time of six to eight weeks would be sufficient for a boxer who had been training consistently, but a period of not less than 12 weeks would be required for a person who was not 'gym fit'. Having reviewed the documents in the s 24 bundle, Mr Brouwer expressed the view that, in Victoria, the fight would not have received a permit. When questioned at the hearing, Mr Brouwer agreed that the level of preparation will vary with the experience of the boxer, different approaches preferred by different fighters, and consideration of one's opponent.
Mr John Lewis is a professional boxing trainer, and has been for over 30 years. He has trained many boxers, including six who became world champions. He reviewed Mr Brouwer's opinion, but considered it impossible to conclude how long Mr Briggs would have required in order to prepare for the fight against Mr Green. He said that the length of time needed will depend on a variety of factors, and without the benefit of seeing Mr Briggs train on a day to day basis, the period of time that he might have required for full preparation cannot be confidently opined.

Mr Briggs' examination by a neurologist

As mentioned above, Mr Briggs was undergoing treatment at the hands of a naturopath, and with his general practitioner, Dr Lou Lewis, following his retirement in 2007. Although, in his oral evidence, Mr Briggs said that his symptoms had significantly improved as a result of that treatment, his response to interview by the Verifact investigators suggested that he continued to have ongoing problems with his balance and coordination. Apparently at the suggestion of the Green camp, when negotiations for the fight were under way, the Green camp requested that Mr Briggs have an assessment of his health. He saw a neurologist in New South Wales, Associate Professor Armin Mohamed, on 10 February 2010. Dr Mohamed found no significant abnormalities and concluded that, subject to an MRI scan of the brain, Mr Briggs would be safe to enter the ring.
Mr Briggs subsequently underwent an MRI scan which detected no abnormality. A report by the radiologist dated 15 February 2010 confirmed that conclusion. As a result, on 1 July 2010, Dr Mohamed wrote a further report saying that he saw no contraindication for Mr Briggs to proceed with his plan to fight.
Mr Briggs said in evidence that he candidly disclosed to Dr Mohamed his medical history, including his condition for which he had been treated following his retirement.

The grant of the permit to conduct the fight

The fight was originally planned to be held in New South Wales on 21 July 2010. It is a requirement in that jurisdiction that a medical certificate be submitted in support of the application for a permit. On 7 July 2010, Mr Craig Waller, the Executive Officer of the Combats Sports Authority of New South Wales, wrote to a Mr Michael Pember, in his capacity as a representative of Green Machine Promotions, advising that, despite the medical reports supplied by Dr Mohamed and by the radiologist, the contest between Mr Briggs and Mr Green would not be sanctioned in New South Wales because of 'concern for the health and welfare of Mr Briggs'.
On the same day, 7 July 2010, Mr Manolikos and Mr Pember met with Mr Simon Watters, the Chair of the PCSC. They told Mr Watters that the New South Wales Commission had declined to sanction the fight between Mr Green and Mr Briggs which was to be held on 21 July 2010. Mr Watters prepared a memorandum recording that meeting. Mr Watters' memorandum records that Mr Manolikos received a letter on 6 July 2010 declining the fight. That date does not match the date on the copy of the letter from Mr Waller to Mr Pember which was 7 July 2010. In his statement to the investigators, however, Mr Waller does not suggest that any other letter to that effect was sent, so it must have been that letter to which Mr Watters' memorandum refers. Mr Watters' memorandum records:
Whilst no express reasons were provided, inquires made by Mr Manolikos have revealed that the Commission feels that Mr Briggs should have had several 'warm-up fights' due to his two year absence. This appears to be the basis of the Commission's refusal to sanction the fight in spite of the clearance from the medical experts.
In his statement, Mr Watters said that he read the letter from the New South Wales Combat Sports Authority, although that assertion is inconsistent with the suggestion in the memorandum of the meeting that no reasons were provided. He also said that he was aware that the proposed fight had been sanctioned by the International Boxing Organisation.
An application was subsequently lodged that afternoon with the Department of Sport and Recreation for submission to the PCSC. Accompanying the application were the medical reports of Associate Professor Mohamed of 10 February 2010 and the radiology report of 15 February 2010. Associate Professor Mohamed's second report of 1 July 2010 was not included in the application. The documents were then circulated to the PCSC members by email.
At the time, five of the seven Commissioners were in Perth, with the other two (one of whom was the doctor of the PCSC nominated by the Australian Medical Association) being overseas. Three of the Commissioners, Mr Watters, Mr Fanderlinden, and Mr Junior, all approved the issue of a permit. Mr Vincent Del Prete is the Department of Sport and Recreation representative on the PCSC. He supported the approval on the basis of 'the expert advice he had received from his fellow Commissioners'. All of that was done by email within 24 hours of Mr Watters being approached by Mr Pember and Mr Manolikos. Another Commissioner, Mr Vidovich was on annual leave at the time and did not see the application until he returned to work on 12 July 2010, by which time the application had been approved.

Pre-fight medical examination

On 8 July 2011, Mr Briggs saw his general practitioner, Dr Lou Lewis, in Sydney. Dr Lewis completed an examination of Mr Briggs, noted no relevant abnormalities, and expressed the view that Mr Briggs was fit to participate in combat sports. It is not apparent whether that report was ever provided to the PCSC, but it is clear that, if it was, it was only after approval for the fight was given. Its significance for present purposes is only that Mr Briggs was undoubtedly aware that his doctor had cleared him to participate in the contest. Mr Briggs said that Dr Lewis was well aware of his medical history and he discussed his symptoms openly with Dr Lewis.
At the weigh-in prior to the fight, Mr Briggs was medically examined by a medical practitioner appointed by the PCSC, Dr Malcolm Rivers.
Mr Briggs' evidence as to the prefight medical was somewhat vague. He said that he had spent a great deal of time in the sauna prior to the weighin and medical examination, in an effort to get his weight down. It is highly likely that, at the weighin, Mr Briggs was severely dehydrated.
At the examination, Dr Rivers noted abnormalities in relation to the skin, balance, coordination and vision. In the comments section, Dr Rivers noted 'abnormal cerebellar function' and 'reduced visual field RI'. There was also an additional illegible note.
According to Mr Briggs, Dr Rivers held up his hand in front of Mr Briggs' face, and asked Mr Briggs how many fingers he could see. Mr Briggs responded that he could not even see the hand. Mr Briggs said that Dr Rivers said that he had some 'serious neurological issues', to which Mr Briggs responded, 'Well what do you want to do, this is a world title fight, you're the doctor'. Dr Rivers replied 'Alright I'll sign off on it'.
Mr Brouwer explained that dehydration as a result of attempts to meet weight limits was a common practice in boxing, and is a matter of serious concern in the industry. He said that weighins had now been moved to occur at least 24 hours prior to a fight in order to give participants the opportunity to be rehydrated before entering the ring.
Dr Golden told the Tribunal that the symptoms of dehydration included thirst, dizziness, visual symptoms, weakness and confusion. He said that dehydration can induce neurological deficits and when neurological deficits are observed by a doctor, it is the doctor's duty to discern the cause of the symptoms.
As previously noted, although Dr Rivers apparently orally denied Mr Briggs' version of events at the examination, he did not provide a written statement to the Verifact investigators and he was not called to give evidence before the Tribunal. Mr Kevin Junior, one of the PCSC Commissioners who approved the fight, was present during the weighin and the medical examination. In his statement to the Verifact investigators, he said that Dr Rivers was extremely thorough in his examination. Mr Junior said that he (Mr Junior) made no judgment about either fighters' condition or appearance. Mr Junior did not give evidence before the Tribunal, and thus, his account of what others, including Mr Briggs, suggested were obvious signs of confusion and unsteadiness at the weighin was not available to the Tribunal.
Mr Briggs said that, after he had had a meal following the weighin, he felt much better. He said that he had been through similar experiences before, but was always able to 'bounce', presumably meaning recover following rehydration. He said that he then slept, and the next morning, the day of the fight, he woke up feeling 'awesome' and 'really light' which, he said, was a good way to feel before a fight. He said he felt ready to fight, and considerably better than he had immediately before a number of fights in the past in which he had been successful.

The fight

When Mr Briggs entered the stadium and went to the ring, his feelings had changed. He said that he felt as though he had Parkinson's disease. When he arrived at the narrow stairs leading up to the ring, he was concerned that he might lose his balance. He said, however, that his years as a boxer had conditioned him to be able to separate negative feelings from his mind, and proceed to do what he had conditioned his body to do in the ring. On that basis, he mounted the stairs and entered the ring. He said that when the fight started, he intended to hit Danny Green as hard as he could. It was his intention, he said, to win the fight, and he 'knew no other way'.
The fight consisted of two punches. The first was thrown at Mr Green's head by Mr Briggs, but was deflected by Mr Green. Mr Green then threw a punch which struck Mr Briggs on the top of his head, causing him to fall to his knees on the canvas. When he attempted to stand up he staggered back onto his knees and the count was completed.

Was there a sham contest?

The PCSC, in its letter of 2 November 2010, based its conclusion that there was a sham contest on the proposition that Mr Briggs failed to disclose to the examining doctor, his opponent, or the PCSC, the complete picture of his medical condition in relation to his 'nervous system' and 'ability to mount a credible defence'. It imposed its penalty based upon, amongst other things, 'the degree of subterfuge involved'. The basis upon which that conclusion was made is impossible to discern from the PCSC's letter.
We were directed to no evidence in the Verifact report which supports a conclusion that Mr Briggs failed to disclose his medical history to Associate Professor Mohamed or Dr Lewis. Mr Briggs' evidence to the Tribunal was to the contrary; that is, he said that he was entirely candid with those doctors about his medical history, and that he would not have undertaken the fight had he been given medical advice that he was unfit to compete. As to Dr Rivers, the Verifact report notes Mr Briggs' answer to the question 'At the weighin did you mislead the doctor in any way to hide your condition?', and set out Mr Briggs' answer which was as follows:
I couldn't, if I was the world's best magician hide how I was. Now this is, this is the cruncher right here for your investigation. This doctor here, and I have a witness, he's in Sydney and he's quite willing to step up to the plate if needed. The doctor looked over me after the weigh-in and you have to understand that I've just made weight, completely wasted. I've just spent an hour in the sauna again that morning. I've weight [sic] in. I stepped on. Now with my nervous system, when I am under extreme stress my vision narrows. Okay. He's holding his hand up here and saying how many fingers am I holding. Looking at you I can see three. That day he's holded them up and I've gone holy shit, I cannot see anything. And I'm going two and he's like how many now? And I'm going three. Then he had me stand on one foot. I stood on one foot and see how the nervous system works, the nervous system holds together the whole body. It communicates, helps the muscles communicate, the tendons communicate with the bones, right, for the body to work as a whole unit. My nervous system is completely shot. So when I am standing on foot I've got like, almost Parkinson's disease shakes. Right, shaking like this and I couldn't, I almost fell over. His nest [sic] statement to me was you have some major neurological issues. I. and that was all he said. And I looked at him and I said so what do you want to do? Are you going to call the fight off? He looked at me, breathed out and went no, no I'll sign you off. Now I have a witness that was standing this close that saw the whole thing.

The Verifact report then recited the attempts to obtain Dr Rivers' response to those allegations, and concluded that 'The evidence gathered with respect to claims made by the two parties is presented for consideration of the PCSC. The investigators are not in a position to place any weight on who might have conveyed the most accurate recollection of what really occurred at the prefight medical examination, especially in absence of Dr Rivers' response'.
It can be noted that the Verifact report also recorded an interview with a Mr Barry Michael, who was present at the weighin, and who told the investigators that Mr Briggs looked 'terrible' and was 'even struggling to remove his own shoes before he got on the scales. So much so he had to be supported'. The report also referred to the evidence of a friend of Mr Briggs that Mr Briggs was physically drained from spending too much time in the sauna prior to the fight.
The 'Executive Summary' in the Verifact report contains an assertion 'That Paul Briggs, by failing to disclose his true medical condition to the doctors who examined him prior to the fight, was not a fit and worthy opponent for Danny Green in the contest that took place on 21 July 2010'. In our view, the conclusion that Mr Briggs failed to disclose his true medical condition, is not open on the evidence recited in the body of the Verifact report in relation to the pre-fight medical examination by Dr Rivers, nor is it open in the absence of any evidence at all as to the information given by Mr Briggs to Associate Professor Mohamed or Dr Lewis. There was no basis for the PCSC to have regard to what it described as 'the degree of subterfuge involved'.
As noted above, the PCSC's statement of issues, facts and contentions identified its primary contention as being that Mr Briggs was simply not capable of genuinely competing in such a contest. That contention appears to assume that the question of whether a contest is a 'sham' involves some objective test as to the capacity of a participant to compete. Counsel for the PCSC made it very clear that the PCSC did not contend that Mr Briggs entered the ring other than with the intention of trying to knock out Mr Green and win the contest. He contended however that, objectively viewed, the amount of time Mr Briggs had to prepare for the fight, the limitation on his capacity to exert himself as he previously was able, and his level of fitness at the time of the fight, rendered him unable to compete. That was said to render the contest a 'sham', and to render Mr Briggs liable for participation in a 'sham contest'. The PCSC argues that it will be sufficient (for a 'sham') that a contestant is not, in the circumstances, physically and/or mentally capable of genuinely competing in the contest for which that person has been engaged. Otherwise, it is argued, it is not a 'genuine' contest.
We disagree with the PCSC construction of the expression 'sham contest'.
The definition of 'sham contest' involves 'stalling or posturing or pretending or feigning to fight'. The Macquarie Dictionary (4th ed, 2006)) provides the following definitions of the ordinary meanings of those words:
stall -              1.       to act evasively or deceptively
2. Sport to play below one's best in order to deceive for any reason.
posture - to act in an affected or artificial way, as if for show, pose for effect
pretend -          to put forward a false appearance of; feign
feign - 1.       to invent fictitiously or deceptively as a
story or an excuse
2.to represent fictiously; put on an appearance of …
3.to imitate deceptively
All of those words contemplate intentional action. The definition requires that the participant do one or more of those things.
We do not accept that the determination of whether there has been a 'sham contest' can be made asking whether the parties were mismatched by reason of their respective levels of preparation. The prevention of mismatches is the function of the system of registration and approval of contests by the PCSC.
The PCSC laid emphasis on the acknowledgement by Mr Briggs that the period of time given for him to prepare for the fight was insufficient. Mr Briggs readily acknowledged that he wanted greater time to prepare, and with hindsight, he might have been much more competitive had he been given greater time to prepare. We accept, however, that, despite the short time for preparation, Mr Briggs genuinely believed that he had a chance of knocking out Mr Green and winning the fight, and that he believed he was sufficiently fit, given his experience as a boxer, to last 12 rounds if that were necessary. Mr Hussein gave evidence that he held that belief as well, and we accept that evidence. Mr Briggs now acknowledges that, with hindsight, that faith in his ability was misplaced. That does not detract from his evidence as to his state of mind at the time he entered the ring.
Varying views were expressed by various witnesses before the Tribunal as to the time which, objectively, might be said to be required to prepare for a world title fight. That evidence discloses that there is no clear answer to that question, that views will differ, and that the amount of time required in respect of any particular fight will vary depending on the circumstances of the fighters involved. As noted above, Mr Green, and his associates who organised the fight, seemed to have no difficulty with the notion that only six weeks preparation was available to Mr Briggs.
It is not clear what weight the PCSC gave to Mr Briggs' account of his condition at the weighin and as he entered the ring. For our part, having regard to the reports of the medical practitioners before the fight, and the evidence of Dr Golden and Dr Goodheart, the likelihood is that the symptoms displayed were a consequence of severe dehydration rather than any ongoing neurological condition. There is no basis to conclude that, in the months leading up to the fight, and at the time Mr Briggs consulted doctors, he was suffering symptoms of that kind on any regular basis, or at all.
In our view, there is no basis to conclude that Mr Briggs was stalling, posturing, pretending or feigning to fight. He was entitled to rely upon the medical assessment to which he subjected himself to determine his fitness, from a health point of view, to compete. While he was given limited time for preparation, it is quite clear that he engaged Mr Hussein, and underwent a rigorous preparation programme, including sparring on some 98 occasions. He was, in effect, training full time for the bout. He reached the view that he was capable of not only competing, but winning the fight with Mr Green.
With the benefit of hindsight, everyone, including Mr Briggs, considers that the fight should not have been allowed to proceed. We do not consider that Mr Briggs was in any better position to form that view before the fight than the promoters of the fight, the PCSC or Dr Rivers. It is not for this Tribunal to express a view as to whether or not the fight should have been permitted to proceed, but if it should not have, then it is by reason of a failure of the safeguards put in place by the PCS Act and not because it was a 'sham contest'.

Conclusion

It follows that we would set aside the finding of the PCSC that Mr Briggs participated in a 'sham contest', the order that he pay $75,000 to the PCSC, and the order that his registration as a contestant in Western Australia be cancelled. There will be orders accordingly.

Orders

1.The finding by the Professional Combat Sports Commission on 2 November 2010 that the applicant participated in a 'sham contest' is set aside.
2.The order that the applicant pay $75,000 to the Professional Combat Sports Commission from the money payable to him in relation to the fight is set aside.
3.The order that, pursuant to s 23(1)ca and s 23(1)(d) of the Professional Combat Sports Act 1987 (WA), the applicant's registration as a contestant in Western Australia be cancelled is set aside.

I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT