BRIGGS and PROFESSIONAL COMBAT SPORTS COMMISSION - [2011] WASAT 30

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: PROFESSIONAL COMBAT SPORTS ACT 1987

CITATION: BRIGGS and PROFESSIONAL COMBAT SPORTS COMMISSION [2011] WASAT 30

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 18 FEBRUARY 2011

FILE NO/S: VR 232 of 2010

BETWEEN: PAUL BRIGGS
Applicant
AND
PROFESSIONAL COMBAT SPORTS COMMISSION
Respondent

Catchwords:

Professional combat sports - Boxing - Whether part of determination by Professional Combat Sports Commission susceptible to review

Legislation:

Interpretation Act 1984 (WA), s 18
Professional Combat Sports Act 1987 (WA), s 3, s 16, s 23, s 23(1)(ca) s 23(2), s 28, s 34, s 34(1), s 45(1), s 47, s 48(2)(a), s 48(2)(b)(ii), s 48(2)(b)(iii), s 49(1), s 51(3), s 52, Pt II, Pt III, Pt IV, Pt V, Pt VII
State Administrative Tribunal Act 2004 (WA), s 29(1)

Result:

Held that Tribunal has jurisdiction to review order for payment of money

Category: B

Representation:

Counsel:

Applicant: N/A
Respondent: N/A

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, a boxer, lodged an application for a review of a decision by the Professional Combat Sports Commission to cancel his registration as a contestant and to order that he pay $75,000 to the Commission from money payable to him in relation to his fight with Mr Danny Green on 21 July 2010.
The Commission raised a preliminary issue as to whether the part of the order to pay $75,000 was susceptible to review. The order to pay was made pursuant to a power found in Pt VII of the Professional Combat Sports Act 1987 (WA). The Commission argued that the right of review conferred by the Professional Combat Sports Act did not include decisions made under PtVII. The Commission accepted that MrBriggs had a right of review in relation to that part of the order cancelling his registration as a contestant.
The Tribunal concluded that the imposition of the requirement to pay money is susceptible to review by the Tribunal. It also decided that even if that were not the case, because the Tribunal, when exercising its review jurisdiction, has all the functions and discretions corresponding to those exercised by the original decisionmaker, it could, in considering the review of the cancellation of Mr Briggs' registration, also consider whether it was appropriate to require payment of proceeds of the fight to the Commission.

The preliminary issue

By letter dated 2 November 2010, the Professional Combat Sports Commission notified the applicant, Mr Paul Briggs, that it had resolved to order that he pay $75,000 to the Commission from the money payable to him in relation to his fight with Mr Danny Green on 21 July 2010 at Challenge Stadium, Perth. It also resolved that Mr Briggs' registration as a contestant in Western Australia be cancelled. Mr Briggs sought a review of those decisions.
The Commission contended that a right of review only exists in relation to decisions of the Commission made pursuant to Pt II and Pt III of the Professional Combat Sports Act 1987 (WA) (PCS Act), and that the order to pay $75,000 was made pursuant to s 47(5) of the Act which is found in Pt VII of the PCS Act. Accordingly, the Commission contended that the Tribunal had no jurisdiction to review the requirement to pay $75,000, and that that aspect of the application should be dismissed.
The Commission accepted that Mr Briggs was entitled to a review of the cancellation of his registration.
The issue for determination as a preliminary issue is whether the Tribunal has any capacity to review that aspect of the decision relating to the payment of $75,000 to the Commission.

The Professional Combat Sports Act 1987 (WA)

The Professional Combat Sports Act 1987 (WA) (PCS Act) is described as 'an Act to control professional combat sports and for other and incidental purposes'. The Act establishes the Professional Combat Sports Commission (Commission). 'Combat sport' includes boxing and other activities prescribed by regulations.
The Commission is required to maintain registers of both contestants and 'industry participants'.
Part III of the PCS Act deals with registration of contestants. Part IV deals with registration of industry participants. Section 3 defines 'industry participant' as meaning 'a person who, otherwise than as a contestant, engages or is engaged in any profession, occupation or trade whether on a fulltime, parttime or casual basis, in relation to a professional combat sport'.
A person who desires registration is required to apply to the Commission in a form approved by the Commission - s 16 in relation to contestants; s 28 in relation to industry participants.
The Commission has certain disciplinary powers in relation to contestants. Section 23 provides:
1)Where the Commission is of the opinion in relation to a contestant that the contestant -
(a)is not a fit and proper person;
(b)has committed an offence against this Act;
(c)has not complied with any condition or restriction imposed on him under this Act; or
(ca)has participated in a sham contest,
the Commission may impose any one or more of the following penalties, namely -
(d)cancel or suspend the registration of that person as a contestant;
(e)reduce the period of registration of that person as a contestant;
(f)fine the contestant such amount not exceeding $200 as the Commission determines;
(g)impose such conditions or restrictions on the contestant as are determined by the Commission.
(2)The Commission shall not impose a penalty on a contestant under subsection (1) unless the Commission has given the contestant a reasonable opportunity of being heard on the matter.
Section 47 deals with offences. It is found in Pt VII of the PCS Act. By s 47(2) it is an offence for a person to participate or agree to participate in a sham contest, or to promote or arrange a sham contest. A penalty is provided for that offence. Subsections 47(4), 47(5) and 47(6) provide:
(4)Notwithstanding subsection (3), where in relation to a contest the Commission is of the opinion (whether or not as a result of a report made by the referee of the contest) that the contest is a sham contest the Commission shall inquire into the promotion, arrangement and conduct of the contest.
5)Where the Commission after an inquiry under subsection (4) is satisfied that a contest is a sham contest the Commission may order that any money or money’s worth paid or payable to a contestant or industry participant who, in the opinion of the Commission, 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.
(6)Nothing in subsection (5) prevents a person from being proceeded against for an offence under subsection (1) or (2) or from any proceedings under section 23.
Section 34 enables a person who is aggrieved by certain decisions to apply to the State Administrative Tribunal for a review. Section 34 reads:

Appeals
(1)A person or organisation who or which is aggrieved by a decision of the Commission or the Minister or by any condition or restriction imposed by the Commission under Part III or IV may apply to the State Administrative Tribunal for a review of the decision, condition or restriction.

The Commission's decision

The Commission conveyed its decision to Mr Briggs in a letter dated 2 November 2010 which read:
Inquiry into Green/Briggs Contest of 21 July 2010
After due consideration of all the material and evidence it has reasonably been able to gather in relation to the fight between Danny Green and yourself at Challenge Stadium Perth on 21 July 2010 the Commission is positively satisfied that, by not disclosing at anytime 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 Act1987 (the Act).
As a result, based upon;
a)The fact 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, you 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.
Under the current Professional Combat Sports Act 1987 Section 34, you are also entitled to seek a review of this decision to cancel your registration as detailed:
A person or organisation who or which is aggrieved by a decision of the Commission or the Minister or by any condition or restriction imposed by the Commission under Part III or IV may apply to the State Administrative Tribunal for a review of the decision, condition or restriction.
If you choose to exercise this process, please contact the State Administrative Tribunal on (08) 9219 3111.
The Commission's letter makes reference to s 47(4) and s 47(5) of the PCS Act. It is clear that, in requiring the payment of $75,000 to the Commission, the Commission was exercising its power under s 47(5). At the same time, it exercised its disciplinary power under s 23. Section 23(2) requires that the Commission give a contestant a reasonable opportunity to be heard prior to imposing any of the available disciplinary penalties. It is a necessary inference, therefore, that the inquiry referred to in the letter of 2 November 2010 served the purpose of satisfying both s 23(2) and s 47(4).

The proper construction of s 34

The point of departure between the parties is whether the words 'under Part III or IV' when used in s 34 apply to and qualify the phrase 'a decision of the Commission or the Minister', or are referrable only to the words 'by any condition or restriction imposed by the Commission'.
The Commission argues that, properly construed, s 34(1) should read as follows:
A person or organisation who or which is aggrieved by:
(i) a decision of the Commission
(ii)or a decision of the Minister
(iii)or by any condition or restriction imposed by the Commission
under Part III or IV
may apply to the State Administrative Tribunal for a review of the decision, condition or restriction.
The applicant contends for a different construction. He contends that the section should be construed as follows:
A person or organisation who or which is aggrieved by:
(i) a decision of the Commission
(ii)a decision of the Minister
(iii)or by any condition or restriction imposed by the Commission under Part III or IV
may apply to the State Administrative Tribunal for a review of the decision, condition or restriction.
Thus, the applicant argues, because the order required the applicant to pay the sum of $75,000 to the respondent is a 'decision of the Commission', it is amenable to review by the Tribunal. In support of that construction, the applicant argues that the insertion of the word 'by' before the words 'any condition' demonstrates that the phrase 'under Part III or IV' does not qualify both portions of the section. Furthermore, the applicant argues:
The word 'imposed' does not qualify the words 'a decision of the Commission or the Minister', since a decision is, logically, not imposed. It might be 'made', 'pronounced' or the like. However, it is not imposed.
I do not accept that latter argument. The word 'imposed' is clearly referrable to the words 'any condition or restriction'. That does not assist in determining whether the words 'under Part III or IV' are referrable only to a condition or restriction imposed, or apply as well to a decision of the Commission.
I accept, however, the argument that the insertion of the word 'by' before 'any condition' favours the construction of s 34 suggested by the applicant. It suggests that there are two alternative potential sources of grievance. The first is being aggrieved by 'a decision of the Commission or Minister', and the second is being aggrieved by 'any condition or restriction imposed by the Commission under Part III or IV'. The construction argued by the Commission would be clear if commas were inserted after 'Minister' and after 'imposed by the Commission'. The absence of those commas, and the repetition of the word 'by' tends to favour the construction argued for by the applicant.
It is clear, however, that no grammatical or syntactical analysis provides a clear answer to the proper construction of s 34 of the PCS Act. It is therefore necessary to consider the section in the context of the whole of the Act, and, applying s 18 of the Interpretation Act 1984 (WA), to identify a construction that would promote the purpose and object underlying the Act.
The first observation that might be made is that, as occurred in this case, it might be expected that whenever action under s47(5) is contemplated by the Commission, it is likely that the Commission will also contemplate disciplinary action under s23. The fact that s23(1)(ca) specifically identifies participation in a sham contest as a basis for the imposition of a disciplinary penalty reinforces the likelihood that action under s23 and s47(5) will normally occur simultaneously.
Within the range of challenges that might be made to a disciplinary order under s23 is a contention that a contestant has not, in fact, participated in a sham contest. That has the clear potential to be a live issue in a review brought under s34 in relation to a disciplinary penalty imposed under s23. It would be surprising if the legislature intended that, were a challenge to that finding upheld on review, the contestant could nevertheless remain liable to a potentially heavy penalty imposed under s47(5).
This case provides a good example. The grounds of review, although erroneously couched in terms applicable to judicial review rather than merits review, essentially challenge the proposition that MrBriggs participated in a sham contest. If the Tribunal were to uphold that contention and conclude that the contest was not a sham contest within the meaning of that expression in the Act, the basis for cancellation of MrBriggs' registration would fall away. On the Commission's argument, MrBriggs would remain liable to pay $75,000 to the Commission, even though the Tribunal had concluded that he had not participated in a sham contest, and thus the foundation for the obligation to pay did not exist. In that way, the construction contended for by the Commission would work a grave injustice. It is not, therefore, a construction to be preferred.
There are a number of arguments which the Commission proffers in support of its construction.
The first is that s34 is found in PtV of the PCSAct which is headed 'Review'. It is the only section in that part of the Act. The Commission argues that its location immediately following Pt III and Pt IV reinforces the proposition that the review right is limited only to decisions under Pt III or Pt IV. In my view, that argument reads too much into the sequence of the Act. The review provision stands as a separate part of the Act, and there is no reason why s 34 should necessarily be read as concerning review rights only in relation to provisions preceding it in the PCS Act.
A second argument is that the policy of the PCS Act is that:
'occupational registration' decisions, which affect individuals/ organisations, are to be 'SAT reviewable', decisions relating to the holding and conduct of contests are not to be so 'reviewable'.
In my view, there is no basis to describe the policy of the Act in those terms. The Commission contends that registration decisions have a direct effect on the ability of persons to pursue their profession, and accordingly there is every reason to expect that persons so affected will be able to seek a full merits review. The Tribunal exercises jurisdiction in relation to a wide range of vocations. Its jurisdiction is not generally limited only to review of registration decisions. In many vocational areas, the Tribunal exercises a review jurisdiction of various summary powers exercisable by vocational regulatory bodies, as well as reviews of registration decisions. As discussed above, the proposition that an applicant to the Tribunal might remain liable for a significant monetary penalty when the Tribunal has set aside a registration decision, made at the same hearing and on the same basis as the registration decision, seems unlikely to be the policy of the Act.
A third argument raised by the Commission is that some decisions which might be made under parts of the Act other than Pt III and Pt IV could not be conveniently reviewed. An example given is a decision to refuse a permit for a contest under s 45(1) of the PCS Act. Section 45(1) empowers the Commission to issue a permit in respect of a contest. An application to conduct a contest must be made 'not less than 21 days or such lesser period as is approved by the Commissioner prior to the proposed date of the contest'. The Commission argues that the 21 day limit barely gives the Commission time to review and consider a contentious application, let alone for the Tribunal to review it if it is refused. Therefore, it is argued there would be no utility for a promoter to seek a review in the Tribunal once the date set for the contest has passed.
The first problem with that argument is that the 21 day period is a minimum period. There is nothing to stop a promoter applying for a permit for a contest many months in advance. In that event, there would be no problem in undertaking a review in a timely way. The fact that a person proposing a contest might delay to the last minute in making their application and risk being unable to have a review completed by the Tribunal before the proposed date does not lead to the conclusion that the legislature did not intend to confer a right of review in relation to such an application.
The Commission also points to a number of decisions that might be made by the Commission appointing or approving certain persons to perform various functions under the Act.
The examples it gives are:
•Section 48(2)(a) which provides for a weigh in of contestants to take place at a 'place approved by the Commission';
•Section 48(2)(b)(ii) and (iii) which provides that the weigh in is to be held in the presence of a 'medical practitioner approved by the Commission' and 'a person appointed by the Commission';
•Section 49(1) which requires the 'medical practitioner approved by the Commission' to do certain things - but does not involve any action by the Commission;
•Section 51(3) which requires a 'medical practitioner approved by the Commission' to examine a contestant who is rendered unconscious during a contest;
•Section 52 which requires 'a person appointed by the Commission' to record a contest.
The Commission argues that, if the applicant's contention is correct, those approvals would be theoretically reviewable.
The approval or appointment of personnel to perform particular functions could not sensibly be described as a 'decision', and accordingly those provisions provide no assistance to the question of construction of s 34.

Finally, the Commission argues that a review by the Tribunal as to whether or not there may have been a 'sham contest' might give rise to potential conflict between the Tribunal's decision and the decision of a court on a prosecution brought under s 47 for the offence of participating in a sham contest. That is not a reason to conclude that the Tribunal has no jurisdiction to review a decision under s 47(5). In the Tribunal's vocational regulatory jurisdiction, it is common place for professional disciplinary complaints to be brought against registered persons in respect to what is alleged to be illegal conduct. It is not uncommon for proceedings before the Tribunal to be adjourned pending the outcome of a criminal prosecution in relation to the conduct which forms the subject of complaint to the Tribunal. Section 47 gives rise to the same possibilities. The existence of that possibility is not a basis for concluding that the Tribunal could not have been intended to have a power of review of a decision under s 47. The point can be illustrated by the fact that participation in a sham contest may be a basis for disciplinary action under s 23, and the Commission accepts that the Tribunal has the jurisdiction to review findings and penalties under s 23. A penalty under s 23 does not preclude a prosecution under s 47.
In all the circumstances, I am of the view that the reference to a 'decision of the Commission' in s 34 is not confined to a decision of the Commission under either Pt III or Pt IV of the PCS Act. The construction of s 34 for which the applicant contends is to be preferred.

Section 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)

Even if the right of review was confined to the Commission's decision under s 23 of the PCS Act, it would, in my view, be open to the Tribunal to determine whether or not a payment by the applicant should be required under s 47(5). That is because s 29(1) of the SAT Act confers on the Tribunal, when dealing with a matter in the exercise of its review jurisdiction, the functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision. It is clear that, in making the decision to cancel Mr Briggs' registration, the Commission exercised its discretion under s 47(5). The exercise of the discretion occurred in the context of the same proceedings, and on the basis of the same findings, as those which led to the decision under s 23. In reviewing that decision, it would be open, in my view, to the Tribunal to exercise the discretion as to whether the payment by Mr Briggs should be required.

Conclusion

For the foregoing reasons, I am of the view that the application by Mr Briggs for review of the decision that he be required to pay $75,000 to the Commission should not be dismissed or struck out. Directions should now be made to deal with the substantive application.

Orders

1.The respondent's application to strike out so much of the application as seeks a remedy in relation to the decision to require payment by Mr Briggs of $75,000 to the Commission is dismissed.
2.The matter is listed for directions at 10 am on 8 March 2011 in order to further programme the matter to hearing.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT