ENOKA and COMBAT SPORTS COMMISSION - [2024] WASAT 145

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: COMBAT SPORTS ACT 1987 (WA)
CITATION:   ENOKA and COMBAT SPORTS COMMISSION [2024] WASAT 145
MEMBER:   MS P LE MIERE, SENIOR MEMBER
HEARD:   12 NOVEMBER 2024
DELIVERED          :   24 DECEMBER 2024
PUBLISHED           :   28 MARCH 2025
FILE NO/S:   CC 596 of 2024
BETWEEN:   TARA MICHELLE ENOKA
Applicant
AND
COMBAT SPORTS COMMISSION
Respondent

Catchwords:

Combat Sports Act - Boxing - Combatant - Review of suspension of combatant on basis of allegations of criminal conduct - public interest - risk to reputation of sport and/or other contestants

Legislation:

Combat Sports Act 1987 (WA), s 17, s 21, s 23, s 33A, s 54A, s 54B
State Administrative Tribunal Act 2004 (WA), s 25, s 25(2), s 25(4), s 25(4)(a), s 25(4)(b), s 25(4)(c)

Result:

Stay granted

Category: B

Representation:

Counsel:

Applicant	:	Mr M Bevk
Respondent	:	Ms S Keighery

Solicitors:

Applicant	:	Scerri Legal
Respondent	:	State Solicitor's Office

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

Andrews and Legal Practice Board of Western Australia [2024] WASAT 131
Dobson and Legal Practice Board of Western Australia [2022] WASAT 80
Mirror Newspapers Ltd v Harrison [1982] HCA 50
Soutorine and The Medical Board of Australia [2020] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 8 August 2024 the Combat Sports Commission (CSC), notified Ms Tara Enoka (applicant) that her registration as a contestant under s 17 of the Combat Sports Act 1987 (WA) (CS Act) would be suspended pursuant to s 23 and s 33A of the CS Act (Original Decision).
On 30 August 2024 the applicant commenced proceedings in the Tribunal seeking a review of the Original Decision (Review Proceedings).
On 4 October 2024 the applicant made an oral application for a stay of the Original Decision. On 6 October 2024, the applicant filed an interim application for a stay of the Original Decision (Stay Application).
For the reasons which follow, I consider that it is desirable that the operation of the Original Decision should be stayed. The Stay Application will therefore be allowed.
In these reasons for decision, I will deal with the following matters:
(a)the basis for the Original Decision;
(b)the Tribunal's power to grant a stay and the factors relevant to the exercise of its discretion to do so;
(c)consideration of the submissions of the parties in relation to the factors relevant to the grant of a stay; and
(d)whether it is desirable, having regard to all of those factors, that the operation of the Original Decision should be stayed.

The history of the matter and basis for the Suspension Decision and the evidence/material relied on by the CSC

History of the matter in the Tribunal

On 4 October 2024 the applicant made an oral application for a stay of the original decision.
The applicant was then ordered to file an application for a stay under s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act); and
(a)any affidavits and documents not already filed with the Tribunal on which the applicant wished to rely; and
(b)a written outline of submissions in support of the application for stay of the decision of the respondent.
The CSC was also ordered to file:
(a)any affidavits and documents not already filed with the Tribunal on which it wished to rely; and
(b)a written outline of submissions in opposition to the application for stay.
The applicant filed her submissions and an affidavit in support together with an affidavit by Mr Dayle Andrew Phillips her trainer, Mr Tony Tolj a boxing promotor and Ms Olivia Colangelo a fitness client of the applicant's. On 18 October 2024 the applicant filed an affidavit of Ms Jeanne Brown a fellow boxer.
The CSC filed a Book of Documents and submissions in opposition to the application for a stay.

Basis of the CSC's decision

On 5 July 2024, the respondent wrote to the applicant, advising that the respondent was not, at the time, satisfied that the applicant was a fit and proper person for the purposes of the CS Act; that consideration was to be given to suspending or cancelling the applicant's registration, and that the applicant had, as a right, the opportunity to be heard. The applicant was given 14 days within which to make submissions. The respondent also provided the applicant with a copy of the respondent's Fit and Proper Person Contestant and Industry Participant Policy (CSC Policy), to assist with any submission the applicant prepared.[1]
[1] Respondent's submission dated 24 October 2024 at para 9.

The applicant made written submissions to the respondent on 23 July 2024.
On 8 August 2024, the respondent wrote to the applicant to advise that upon review of the applicant's submissions and all the information available to the respondent, the respondent had formed the view that the applicant was not a fit and proper person and that the respondent had resolved to suspend the applicant's registration under the CS Act.
The suspension was made pursuant to s 23 and s 33A of the CS Act. The suspension of a competitor's registration is made pursuant to s 23, and suspension of an industry participant's registration is made pursuant to s 33A.[2]
[2] Respondent's submission dated 24 October 2024 at paras 10 to 12.
The respondent says it formed the view that the applicant was not a fit and proper person based on:
(a)the criminal charges laid against the respondent as reported in West Australian news articles;
(b)a Commissioner of Police Probity Check; and
(c)the Statement of Material Facts provided by the Police in relation to the criminal charges.
The information in the West Australian news articles reported that the applicant had been charged with involvement in 'fund Raising scam' - that she had falsely claimed to be suffering from cancer and created a 'GofundMe' fundraising page with the intention of fraudulently obtaining money to pay for treatment for the cancer she falsely claimed to suffer from.
The Police Probity Check advised the CSC that it did not recommend the applicant be 'approved as an applicant' and that there was a 'prosecution currently underway for a serious offence whereby she has deceived the public into donating to a Go-Fund me page and gained a benefit by fraud'.[3]
[3] Respondent's Book of Documents, page 142.
The material facts allege, relevantly that:
•Her ex-partner created a GoFundMe account.
•The ex-partner was listed as the 'Campaign Organiser'.
•The applicant signed up to the GoFundMe page using her personal email account and subscribed as a beneficiary.
•Only the beneficiary can transfer funds.
•On 9 March 2021 a YouTube page was created which included a 59 second video showing the applicant making an emotional plea and stating she had been diagnosed with a rare form of cancer.
•Medical records confirm the applicant does not have cancer.
•Between 9 March 2021 and September 2021 donations totalling $37,001 had been made and that 25 electronic transfers from the GoFundMe account to the applicant's personal bank account had been made.
At the hearing the respondent's counsel confirmed the respondent formed the view the applicant is not a fit and proper person to be a registered combatant solely on the basis of the charges made against the applicant together with the material facts supporting those charges.
The respondent submits its purpose governs conduct beyond activities which occur as part of any combat sport and encompass issues of integrity in general. The respondent summits that although the word 'integrity' is not used in the Act, it is to be implied.

The Tribunal's power to grant a stay and the factors relevant to the exercise of its discretion to do so

Ordinarily, the commencement of a review proceeding does not affect the operation of the decision which is sought to be reviewed. However, the Tribunal clearly has the power to grant a stay of the decision under review. That power lies in s 25(2) of the SAT Act which provides that the Tribunal may, on the application of a party or on its own initiative, make an order staying the operation of a decision that is the subject of a proceeding for a review.
Under s 25(4) of the SAT Act, the Tribunal may make an order staying the operation of a decision the subject of a review only if it considers it desirable to do so after taking into account:
(a)the interests of any persons whose interests may be affected by the order; and
(b)any submission made by or on behalf of the decision-maker; and
(c)the public interest.
However, the matters specified in s 25(4)(a) - (c) of the SAT Act are not an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision.
The language used makes it clear that the discretion conferred by s 25(4) of the SAT Act is a wide statutory discretion which is to be exercised judicially.
The principles relevant to the exercise of the discretion to grant a stay were set out by Tottle J, sitting as Supplementary President of the Tribunal, in Soutorine.[4] His Honour enunciated the following principles, which have since been repeated and adopted by Jackson J in Dobson[5] and Andrews:[6]
[4] Soutorine and The Medical Board of Australia [2020] WASAT 5.
[5] Dobson and Legal Practice Board of Western Australia [2022] WASAT 80 at [57] - [59]. Internal citations omitted.
[6] Andrews and Legal Practice Board of Western Australia [2024] WASAT 131.
(a)s 25 of the SAT Act provides the Tribunal with a wide discretion to grant a stay that must be exercised judicially;
(b)any analysis of that discretion must begin with the terms of the statute, particularly s 25(4) of the SAT Act;
(c)care must be taken in looking for guidance to:
i)jurisdictions with a different statutory basis for the power to grant a stay; and
ii)decisions concerned with the exercise of discretion to grant a stay in curial proceedings. In particular, where a stay application is brought within an application to review an administrative decision, a regulatory decisionmaking authority is not to be equated with the 'successful party' following a contest and determination;
(d)s 25(4) of the SAT Act does not exhaustively list the matters relevant to the Tribunal's consideration; and
(e)neither party bears an onus of persuading the Tribunal to grant a stay or not.
58As noted above, one of the matters for which regard must be had in an application under s 25(4) of the SAT Act is the public interest. The 'public interest' in a particular case must be understood within its statutory context.[7]
[7] Andrews and Legal Practice Board of Western Australia at [34].
The legislative context being the CS Act, in which the application for a stay is made is of particular importance. In these proceedings the parties agree it is for the regulation of among other things the boxing industry.

The applicant's submissions

The applicant submits that the suspension will have a real and considerable impact on her and women's boxing generally, given there are such a small group of female boxers.
The applicant has filed witness statements by those involved in the sport supporting this proposition.
With respect to the financial impact on her she submits that whilst the income from competing is small given her financial position any increase in her income is significant.
The applicant also alludes to the negative effect not being able to compete has and will continue to have on her mental health.

The respondent's submissions

The respondent refers in its written submissions to s 54A and s 54B of the CS Act wherein Parliament expressly provides for the respondent to consider confidential police information prior to criminal charges being laid.
Sections 54A and 54B have no relevance to these proceedings as the respondent's counsel confirmed the respondent has not relied upon any confidential police information.
The respondent includes in its submissions exerts from the Explanatory Memorandum, of the Minister's second reading speech and comments made in the Second Reading Debate which includes references to managing the integrity of combat sports.
The respondent says in allowing the stay it may result in the public at large losing confidence in the integrity of the industry. It says: 'There is also a clear public interest in ensuring combat sports participants abide by the laws, in particular laws regarding dishonesty'.[8]
[8] Respondent's submissions, page 19.
The respondent says the evidence submitted by the applicant shows the suspension will continue to have little financial impact on the applicant. It draws the Tribunal's attention to the fact that the applicant has full time employment and the income from competing is not her primary source of income.
In oral submissions the respondent's counsel urged the Tribunal to find among other things that the suspension was justified and/or necessary to protect the health and safety of contestants.[9]
[9] ts 43, 12 November 2024.
The respondent says it has an arguable case and reasonable prospects of success in the review proceedings.

Is it desirable that the operation of the Original Decision should be stayed

I accept the inclusion of the fit and proper test in the CS Act is to enable the regulators of the CS Act to consider the risks to the sport of allowing contestants and others to be registered when there is evidence of unsuitability of character. Unsuitability of character may arise because of:
•criminal convictions;
•criminal associations that might cause concern as to how they may conduct themselves within the sport; or
•a history of past or present conduct within the sport that casts doubt on their ability to behave in accordance with the rules of the sport.
I accept there is an arguable case that being charged with an offence could be a sufficient basis for a participant in the sport having their registration suspended.
The respondent however seems to take this further. It submits because it has an arguable case and that it has reasonable prospects of being successful in the review proceedings the Tribunal cannot and should not stay the suspension.[10]
[10] ts 37, 12 November 2024.
The basis for alleging the respondent has reasonable prospects of success in the review proceedings is not set out. The respondent confirmed that the basis of the decision to suspend the applicant's registration was solely the basis of the charge and statement of material facts. The Commission itself did not conduct any enquiry.
The respondent did not for example:
(a)obtain any witness statement;
(b)it did not ask for any evidence as to whether the applicant did or has cancer;
(c)it did not ask for or obtain evidence of the alleged YouTube video; and
(d)it did not obtain any evidence as to whether the applicant transferred any money into her own bank account.
The respondent appears to equate the allegations of fact in the material facts as facts having been found to be true.[11]
[11] See 'These charges alone show a serious, ongoing, calculated fraud against the community at large' ts 34, 12 November 2024.
I accept that I can, and I do find that the applicant has been charged with fraud and that there is a statement of material facts provided by the police to support the charge. I go no further.
There is also an arguable case that the fraud charge if proven would result in the applicant being found not to be fit and proper.
The mere fact that the respondent may have the power to suspend a combatant does not mean it is required to use it or that it should use it.
I do not accept the respondent's submission that I do not have to weigh up the competing interests of the applicant being able to continue to compete in her sport with the risk to other participants or with the detriment to the industry if she were allowed to continue until the review is determined.[12]
[12] ts 37, 12 November 2024.
The criteria in s 25(4) of the SAT Act is clear. The Tribunal may make an order staying the operation of a decision the subject of a review only if it considers it desirable to do so after taking into account: (a) the interests of any persons whose interests may be affected by the order; (b) any submission made by or on behalf of the decision-maker; and (c) the public interest. Clearly the Tribunal needs to consider the effect not granting a stay would have on the applicant and how the public interest would be affected by the granting/not granting a stay.
When considering a stay application in addition to determining if the decision-maker had the power to make the suspension order it is to also necessary for the Tribunal to consider if the suspension order should remain in place until the review of the decision is heard.
The respondent dismisses the effect of the potential financial loss to the applicant as being of no significance.
The respondent in its submissions asserts the applicant has not established the impact on her mental health outweighs the public interest in the suspension of her registration.
The public interest asserted by the respondent in the applicant's suspension staying in place until the determination of the review proceedings seems to be based on two issues. Firstly a risk to the health and safety of other contestants and secondly to the risk to public confidence in the sport being damaged if the applicant was allowed to continue to compete.
Section 23 of the CS Act deals with health and safety and it was not on this basis the applicant's registration was suspended. In any event:
•the respondent did not submit any evidence that the applicant posed a risk to the health and safety of other contestants; and
•was unable in its submissions to point to any particular concerns in relation to the risk of injury or the health and safety the applicant may pose to other contestants:
KEIGHERY, MS:      And in this case, the functions and objects of the Combat Sports Act clearly - in our submission, clearly support the contention that it was appropriate to suspend the applicant's boxing licence because of the purposes of the Act.
LE MIERE MS:         Which is – – –
KEIGHERY, MS:      To - one of them is the health and safety of other competitors.
LE MIERE MS:        So what's the health and safety affected by the charges?
KEIGHERY, MS:      Because it alleges the applicant engaged in serious dishonesty. So how are you meant to accept that the applicant wouldn't be engaged - wouldn't behave appropriately in the ring? She cannot follow laws relating to dishonesty.[13]
[13] ts 41, 12 November 2024.
In any event s 21 of the CS Act contains provision for the respondent to cancel or suspend a contestant's registration because of concerns for the health and safety of contestants. Therefore, suspension for health and safety does not fall within s 23 of the CS Act.
Further, I infer from this that at the time the decision was made to suspend the applicant's registration the respondent did not consider there was any risk to the health and safety of other contestants with whom the applicant might compete.
The detriment to the applicant is set out in her affidavit and is said by her to be considerable and could not be undone if she were successful upon review and the suspension then set aside.

Determination

For the four reasons set out below I find the applicant's interest in continuing to be able to compete in her chosen field is not outweighed by the public interest in the suspension being in place prior to the review proceedings being heard.
Firstly, there are no findings of dishonesty against the applicant. I have confidence in the general public understanding the difference between mere allegations of and findings of criminal conduct.[14]
[14] My view is supported by the High Court decision in Mirror Newspapers Ltd v Harrison [1982] HCA 50.

Secondly, I am not satisfied the risk posed by the applicant to other contestants' health and safety (if any) is such that she should not be able to compete until her application for review is determined.
Section 21 of the CS Act contains provision for the respondent to cancel or suspend a contestant's registration for the health and safety of contestants. Therefore, suspension for health and safety does not fall within s 23 of the CS Act.
Thirdly, there is a financial impact on the applicant not being able to compete. Whilst the financial impact would appear to be modest, I accept the applicant's assertion that given her financial position even a small amount of additional income may not have an insignificant effect.
Fourthly, an arguable case that the respondent might be successful on review is not a basis in itself to warrant the suspension being in place until the hearing of the review proceedings.
Accordingly, I am satisfied and find the applicant should have the benefit of the stay for which she has applied and was for these reasons I made the order on 24 December 2024 granting that stay.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, SENIOR MEMBER
28 MARCH 2025