Hamdan v Combat Sports Authority of NSW and Commissioner of Police, NSW Police Force

[2025] NSWCATAD 64

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Hamdan v Combat Sports Authority of NSW and Commissioner of Police, NSW Police Force [2025] NSWCATAD 64

Hearing dates:

14 February 2025

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

The administratively reviewable decision under the review is affirmed.

Catchwords:

ADMINISTRATIVE LAW - combat sports - registration as combatant - fit and proper person - general prohibition order – appropriateness of length of general prohibition order

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - appeal - Civil and Administrative Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Combat Sports Act 2013 (NSW)

Combat Sports Regulations 2014 (NSW)

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Fisher v Combat Sports Authority of NSW and Anor [2022] NSWCATAD 238

Tukel v Combat Sports Authority [2023] NSWCATAD 180

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Hassan Hamdan (Applicant)
Combat Sports Authority of NSW (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)

Representation:

Counsel:
M Mando (Applicant)
R Coffey (Respondent)

Solicitors:
Crown Solicitor (First and Second Respondents)

File Number(s):

2024/00330467

Publication restriction:

None

REASONS FOR DECISION

1. This is a review of a decision of the Combat Sports Authority, the first respondent in these proceedings (“Authority”), to make a general prohibition against the applicant for a period of three years. That order prohibits the applicant from attending certain premises related to combat sports activities for a period of 3 years.

Background

2. The applicant was registered as a combatant under s 13 of the Combat Sports Act 2013 (NSW) (“Act”). That registration ran for three years from 5 June 2019 to 5 June 2022. He is an Australian champion.

3. The applicant’s brother was a competitor in a boxing match on 23 September 2023. The applicant attended as a spectator.

4. After the match had commenced, the applicant was seen leaning against the boxing apron. The boxing apron was in the contest area. Two boxing referees told the applicant to step away from the boxing apron. They were a male referee and a female referee.

5. The applicant then threw a bottle of water at the male referee. The applicant also allegedly elbowed the female referee causing her to move backwards and hold her chest. The applicant was then observed walking over to the male referee and shoving him. A number of videos, positioned at different vantage points, recorded these events and were viewed by the Tribunal.

6. On 25 September 2023, the applicant was arrested and charged with an offence of common assault. That charge concerned contact with the male referee and was brought under s 61 of the Crimes Act 1900 (NSW).

7. On 16 December 2023, the Authority issued a notice to the applicant requiring him to show cause as to why a general prohibition order for a period of five years should not be made against him pursuant to s 75 of the Act.

8. On 16 January 2024, the applicant entered the plea of guilty at the relevant local court. The local court imposed a sentence of a conditional release order without conviction, for a period of two years pursuant to s 10(1)(b) of the Crime (Sentencing Procedure) Act 1999 (NSW).

9. On 16 January 2024, the Authority issued the applicant with a penalty notice alleging contravention of the Act, an official caution pursuant to s 19A of the Fines Act 1996 (NSW) and a notice of decision refusing the applicant’s application for registration as a combatant in the class of Professional Boxing on the grounds that he was not a “fit and proper person”.

10. On 23 January 2024, the Authority re-issued the notice to show cause on account of an issue with service of the earlier notice. The notice proposed a general prohibition order for a period on 5 years.

11. On 13 February 2024, the applicant’s representative wrote to the Authority providing an outline of the applicant’s submissions, a psychological assessment report, an unsigned letter of apology from the applicant and character references. This was followed by oral submissions.

12. On 21 February 2024, the Authority issued the applicant with a general prohibition order for a period of three years, which was less than the five years proposed in the notice to show cause.

13. On 11 March 2024, the applicant filed an application for administrative review of the Authority’s decision to make the general prohibition order. The applicant withdrew these proceedings on 18 June 2024.

14. By further application for administrative review on 6 September 2024, the applicant commenced the present proceedings, seeking review of the decision to make the general prohibition order.

15. On 24 September 2024, the Commissioner of Police, NSW Police Force was joined as the second respondent in these proceedings.

16. The applicant had, during the period of the general prohibition order, undertaken engagements overseas as a boxer. He was not prohibited from doing so under the general prohibition order in place.

Applicant’s rights of review

17. Section 75 in Part 4 of the Act confers power on the Authority to make a general prohibition order against a person, subject to the terms of that provision. That such an order has been made was not in dispute. Under s 77 of the Act, a person may apply to the Civil and Administrative Tribunal (“Tribunal”) for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) of certain decisions. They include a decision under Part 4 by the Authority to make, revoke or vary a general prohibition order in respect of a person (s 77(1)(j)).

18. It was not in dispute that the Tribunal, under these provisions, has jurisdiction to hear the matter before it in these proceedings.

19. The task of the Tribunal is set out in s 63 of the ADR Act. It provides as follows:

“63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal”.

Evidence

20. The evidence before the Tribunal included the following:

1. An affidavit sworn on 31 January 2025 from Daniel Tranter, a compliance and enforcement officer and a combat sport inspector

2. A letter of reference from Paul Nasari filed on 12 February 2025

3. A letter of reference from Danny Green filed on the 12 February 2025

4. A letter of reference from George Kambosos Junior filed on 12 February 2025

5. Unsigned letter in support of Hassan Hamdan dated 13 February 2024 from Mark Bouris

6. Unsigned letter of support of Hassan Hamdan from Nader Hamdan dated 12 February 2024

7. Unsigned letter of apology from the applicant dated 2 February 2024

8. Unsigned letter supporting Hassan Hamdan from Wayne Bemet dated 12 February 2024

9. Video footage taken on 23 September 2023 of the events of that day

10. Psychological assessment of applicant by Susan Homeh Hawil dated 14 February 2024.

21. The documents before the Tribunal also included other statements from certain persons concerning the events of 23 September 2023, Applicant’s Submissions filed 6 December 2024, Submissions of the Respondents filed on 3 February 2025 and Submissions for First and Second Respondents filed on 22 October 2024.

22. The applicant also gave oral evidence and was cross examined by the counsel acting for the Authority.

Consideration

23. The objects of the Act, as set out in s 3, are as follows:

“(a)  to promote the health and safety of combat sport contestants,

(b)  to promote the integrity of combat sport contests,

(c)  to regulate combat sport contests on a harm minimisation basis,

(d)  to promote the development of the combat sport industry”.

24. Part 4 of the Act allows for the making of prohibition orders. Section 74 provides as follows:

“74 General prohibition orders

A general prohibition order is an order made by the Authority that prohibits a person from doing any or all of the following as specified in the order—

(a)  engaging in combat sport contests or sparring,

(b)  arranging or holding combat sport contests,

(c)  engaging in or being employed in any profession, occupation or business, whether on a full-time, part-time or casual basis and whether or not the person receives payment or other consideration, in relation to combat sport,

(d)  permitting, on premises controlled by the person, a promoter to hold a combat sport contest or a weigh-in, for a period of not more than 2 years,

(e)  attending any premises at which a combat sport contest or weigh-in is being held or is to be held within a specified period of the day when the contest is or is to be held,

(f)  attending specified premises where training for any combat sport is conducted, whether generally or during particular periods”.

25. The order in issue prohibited the applicant, from attending any premises at which a combat sport contest or weigh-in is being held or is to be held within a specified period of the day when the contest is or is to be held. That order was made under s 74(e).

26. Such an order can be made against any “person”. The ability to make a general prohibition order is not limited to an order against a registered combatant.

27. Section 75 goes on to set out grounds for a making a general prohibition order in the following terms:

“(1)  The Authority may make a general prohibition order against a person (other than an order referred to in subsection (2)) if the Authority is of the opinion that—

(a)  there are grounds for taking disciplinary action against the person under Division 4 of Part 2 (including under section 34) or that such grounds would exist if the person were a registered person, and

(b)  the person has not, within the period specified in the show cause notice, shown sufficient reasons why the order should not be made.”

28. Under s 75(4), a general prohibition order may be made against a “person” whether or not that person is registered under the Act. Further, a relevant order can be made whether or not disciplinary action had been taken against that person. What follows is that s 75 may apply to the applicant whether or not he is registered under the Act. Further, the actual taking of disciplinary action against the applicant is not required to allow the making of a valid prohibition order.

29. In order to allow for a general prohibition order to be made, what is required under s 75(1)(a) are grounds for taking disciplinary action or that such grounds would exist if the person were a “registered person”.

30. The Authority submits that in circumstances where the applicant was not registered at the relevant time, grounds would exist for taking disciplinary action within the meaning of s 75(1). Those grounds, in the Authority’s submission, are that the applicant is not “a fit and proper person to be registered”. It relies on s 30 which provides as follows:

“30   Grounds for disciplinary action

(1)  The grounds on which disciplinary action may be taken against a registered combatant, industry participant or promoter are as follows—

(a)  the person has contravened, or the Authority has reasonable grounds to believe that the person is likely to contravene, a provision of this Act, the regulations or the rules,

(b)  the person has contravened a law of another State or a Territory and the contravention would, if it had occurred in New South Wales, be a contravention of this Act, the regulations or the rules,

(c)  the person has contravened, or the Authority has reasonable grounds to believe that the person is likely to contravene, a condition of the person’s registration or of a permit under this Act held by the person,

(d)  the person is not a fit and proper person to be registered,

(e)  the Authority is satisfied that it would be contrary to the public interest for the person to be or remain registered”.

(2)  The regulations may specify other circumstances in which the Authority may take disciplinary action under this Division.

31. Clause 21 of the Combat Sport Regulations 2014 (NSW) sets out various circumstances for taking disciplinary action, including the kinds of complaints made that may allow the Authority to take action. The kinds of disciplinary actions that may be taken are set out in s 33 of the Act. What is relevant for present purposes, however, is the question of whether or not disciplinary action can be taken within the meaning of s 30.

32. In order to justify the general prohibition order, it must be shown that there are grounds for taking disciplinary action or that such grounds would exist “if the person were a registered person”. What follows is that the legislation needs to be applied on the hypothetical basis that the applicant is a registered person. Once that hypothesis is assumed, the question needs to be framed in terms of whether the applicant is a “fit and proper person” to be so registered.

33. The Act contains no definition of what is a “fit and proper person”. A number of cases however give consideration to the question in various contexts. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, the High Court, Toohey and Gaudron JJ said, at [36]:

“The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question”.

34. In Fisher v Combat Sports Authority of NSW and Anor [2022] NSWCATAD 238, the Tribunal said:

“… the meaning given to “fit and proper” cannot be so wide so as to be inconsistent with the purpose for which it is serving. As quoted above, its meaning must be guided from the precise activities in which the person is or will be engaged and the ends to be served by those activities. As such, the test is not whether the Applicant is a “fit and proper” person but whether the Applicant is a “fit and proper” person for the purposes of being registered as a combatant in the amateur boxing division taking into account the precise activities that the Applicant would be engaged in and the ends served by being so engaged.

In considering this, and contrary to the submissions of the Applicant, the ends to be served by those activities to both the Applicant and the public at large are relevant to a consideration of the meaning of that phrase. A service that is served by those activities is, inter alia, allowing an individual a safe and regulated place to express physical force. This is not only in the interests of the public at large but with specific respect to the Applicant, the evidence supports that it assists his mental health and continued rehabilitation”.

35. The Tribunal in Tukel v Combat Sports Authority [2023] NSWCATAD 180 said, at [30]:

“The concept of a fit and proper, takes meaning from statutory context and the nature of the activities that are being regulated”.

36. The Authority’s submission is that the general prohibition order was issued against the background of the events that took place 23 September 2023. In the Authority’s submission, the following matters are of relevance:

“.. [the]. incident is significant as it involves a series of disruptive and inappropriate behaviours, which breached the expected standards of conduct at the event… Specifically, the Applicant's actions involved entering an area where he was not authorised to be, without any reasonable or legitimate excuse for doing so….. He then escalated the situation by throwing a bottle of water at an official, as a direct response to being asked to leave the area… the Applicant proceeded to engage in physical contact with a female official, and shortly thereafter, extended to physical contact with a male official”.

37. These behaviours, in the Authority’s submission, displayed a disregard for the rules and regulations governing conduct at such events.

38. The applicant had previously been a boxer for a substantial period. He had pursued boxing on a full-time basis. In these circumstances, in the Authority’s submission, the applicant should have been well aware of the rules and protocols that govern the sport, including who is permitted on or near the apron, the proper seating arrangements and the critical role of officials.

39. The applicant indicated in his oral evidence that he had been “invited” into the apron area. Even if this was so, no explanation was provided as to why he accepted this “invitation”, in light of his assumed awareness of the rules. It also does not explain or justify the applicant’s subsequent physical actions against the two referees.

40. For his part, the applicant expressed remorse for the events in question. His evidence was that he discussed the events of 23 September 2023 with various individuals, including his peers and supporters in the boxing industry. He also reached out to the female official involved.

41. The applicant had, in addition, sought the help of his mentors. He said that he relied on a particular mentor in the boxing industry as his “psychologist”. Some of his mentors and supporters were at the hearing to show their support.

42. He also demonstrated an awareness of anger management issues which the applicant spoke about in his oral evidence at the hearing. The applicant also said that he relied on his religious beliefs as a means of dealing with the issues at hand and correcting himself.

43. The applicant's evidence was that he was a role model for other young people. He also spoke about his community work as evidence of his good character.

44. There was evidence that the applicant had commenced seeking the assistance of a professional counsellor but discontinued that engagement. He said that it was “not for me”. He preferred to rely on the more informal support he described, including taking guidance from his mentors.

45. The evidence included a psychological assessment of the applicant of 14 February 2024, expressed to be prepared in proceedings relating to the notice to show cause in this matter. The applicant was assessed by audio visual link on 1 February 2024. The assessment states that the applicant was not suffering any diagnosable disorder and that there were no psychological conditions that required psychological intervention. However, the assessment says that the applicant experienced a clinically severe level of anxiety that was considered to be reflective of his show cause notice and a none to minimal level of depression. The report concludes that the applicant posed a low risk of engaging in offending behaviour.

37. I accept that the applicant's remorse is genuine. I note the steps he has taken to address the anger issues underlying his conduct and behaviours. His community work is also to be commended.

38. However, despite the efforts he has made, including his reliance on his mentors, there was little evidence of any structured programme or programmes that he had undertaken, with a view to dealing with the conduct and behavioural matters in issue. Having commenced engagement with a professional psychologist, he had discontinued that engagement. Better insight on the part of the applicant may have allowed him at least, to properly consider whether he could benefit from continuing engagement with a programme of the relevant kind. He does not appear to have considered the matter with sufficient seriousness.

39. While the psychological assessment concludes that that the applicant posed a low risk of engaging in offending behaviour, it does not displace the evidence as to the applicant’s choice not to engage with a formal programme to deal with managing the anger issues underlying his conduct and behaviours.

40. The applicant has produced in evidence a number of references from leading individuals in the boxing industry. They speak well of the character of the applicant and of his contribution to the industry and the community. I accept that the absence of a criminal record, activity in the community and mentorship of younger people speak well of the applicant.

41. However, neither the references in evidence nor the other matters set out at [49] above are sufficient to outweigh the gravity of the conduct in issue and the evidence as to the applicant’s choice not to undertake a formal programme to address the issues he is managing.

42. I accept that on the evidence, in particular the video recordings, physical contact between the applicant and two referees occurred. There was no doubt that the throwing of the water bottle at the male referee and the subsequent shoving of that referee by the applicant were intentional acts. There was some difference between the applicant and the Authority as to the intention, if any, of the applicant when he made physical contact with the female referee. However, whether that contact was intentional or the unintended consequence of throwing a water bottle at the other referee, the conduct was, at the very least, reckless. The difference in the evidence of the applicant and the Authority as to the circumstances of the contact with the female referee do not, in the circumstances, derogate from the weight the applicant’s conduct as a whole carries.

43. The applicant is an Australian champion. I accept the Authority’s submission that the stature of a person in the boxing community has a bearing on the standards expected of the person. The applicant’s conduct, in this regard, falls short of the standards expected of someone of his stature.

44. On balance, I am not satisfied that, at the present time, the evidence shows the applicant to be a “fit and proper person” within the meaning of s 30. While I accept that he is remorseful for his conduct on 23 September 2023 and accept the evidence of the actions he has taken to address matters, these are not matters of sufficient weight to displace the consequences of his conduct.

45. The concept of a “fit and proper”, takes its meaning from the statutory context and the nature of the activities that are being regulated (Tukel, at [30]). The relevant statutory context is the scheme under the Act for combat sports. As such, the test is not whether the applicant is a “fit and proper” person in a general sense, but whether the applicant is a “fit and proper” person for the purposes of s 30, having regard to the context of the Act.

46. The Act regulates combat sports. In doing so, it brings to bear considerations of safety of persons attending events (including referees) and the reputation of the industry. Having regard to that context, the weight carried by the applicant’s conduct on 23 September 2023 does not, in my opinion, allow for a determination that he is a “fit and proper person” within the meaning of s 30. The absence of evidence of continuous engagement with a programme of the kind the applicant had commenced but discontinued is also a matter relevant to making that determination.

47. The conduct in issue occurred within the context of a boxing match and was not conduct that occurred in a context extraneous to combat sports. This also has a bearing on the weight that needs to be given to the events of 23 September 2023, in determining whether or not the applicant is a “fit and proper person” within the meaning of s 30.

48. The applicant is a young boxer with promise. The determination I have made does not mean that at a future date, he cannot be found to be a “fit and proper person”, if he has undertaken the actions required, such as continuous and serious engagement with an appropriate programme.

49. There was evidence provided by the applicant as to the adverse consequences of on his boxing career of the general prohibition order. These consequences included the inability to earn an income as a boxer. The psychological assessment in evidence also indicated that the diagnosis of anxiety was related to the general prohibition order. I accept that the general prohibition order has adversely affected the applicant's boxing career and contributed to the diagnosis of anxiety. However, these matters cannot displace the considerations set out at [53] – [56] above in making the determination I have made.

50. The applicant made submissions as to the appropriateness of the period of the general prohibition order. The original order sought was for five years. The order made was for three years. In support of his submissions, the applicant produced evidence of newspaper articles concerning action taken in respect of certain other persons. In the applicant’s submission, the general prohibition order made against the applicant is disproportionate, when compared with orders made against other people as reported in the press.

51. The newspaper articles produced in evidence do not assist the Tribunal in circumstances where it cannot be assumed that the relevant facts of each matter were fully recorded in each article. Had the applicant produced evidence in the form of records of the actual proceedings for the matters in question, such evidence may have been relevant in determination of the appropriateness of the period of the general prohibition order. However, in the absence of any such evidence, the Tribunal is unable give further consideration to the matter.

52. The applicant also produced evidence of publicly available records of the NSW Government that described various prohibition orders and their duration. However, the information in these records does not include evidence of the facts and circumstances of each matter and the decision maker’s reasoning. The information therefore does not assist the Tribunal.

53. It was accepted by both parties that the proceedings in question concerned the general prohibition order and not the decision made denying registration of the applicant as a combatant. I understood the applicant, however, to make the submission that any finding that the applicant was a fit and proper person for the purposes of consideration of the general prohibition order would allow the decision as to registration to be reconsidered.

54. The decision made to deny registration to the applicant is a separate matter, that decision not being the subject of these proceedings. It is not within the jurisdiction of the Tribunal, no application having been made for review of this decision. Accordingly, I make no findings or determination in relation to the decision denying registration to the applicant. In any event, I do not need to consider the applicant’s submission further, having found that the applicant does not, at the present time, satisfy the requirements of s 30.

55. The correct and preferable decision in this matter is that made by the Authority the subject of these proceedings for the reasons set out at [53] – [56] above.

Orders

1. The administratively reviewable decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

14 March 2025 - 1. Representation updated in coversheet.

2. Paragragrah 22 amended from 'solicitor' to 'counsel'

Decision last updated: 14 March 2025