HUSSEIN and PROFESSIONAL COMBAT SPORTS COMMISSION
[2011] WASAT 29
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: PROFESSIONAL COMBAT SPORTS ACT 1987
CITATION: HUSSEIN and PROFESSIONAL COMBAT SPORTS COMMISSION [2011] WASAT 29
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 FEBRUARY 2011
FILE NO/S: VR 231 of 2010
BETWEEN: BILLY HUSSEIN
Applicant
AND
PROFESSIONAL COMBAT SPORTS COMMISSION
Respondent
Catchwords:
Professional combat sports - Boxing - Resolution that any future application for registration unlikely to be viewed favourably - Whether resolution constitutes a reviewable decision - Validity of resolution challenged
Legislation:
Professional Combat Sports Act 1987 (WA), s 3, s 16, s 23, s 27, s 28, s 33, s 34, s 34(1), s 47, Pt III, Pt IV, Pt VII
State Administrative Tribunal Act 2004 (WA), s 13, s 17, s 19, s 27, s 29(1), s 29(3)
Result:
Application dismissed
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):
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 1 November 2010, the Professional Combat Sports Commission published findings in an inquiry under s 47(4) of the Professional Combat Sports Act1987 (WA) in relation to a contest between Mr Paul Briggs and Mr Danny Green on 21 July 2010. In the course of that inquiry, the Commission considered the involvement of the applicant, Mr Billy Hussein, in matters related to that fight. The Commission subsequently advised Mr Hussein that it had resolved that, should he apply to be registered as an industry participant in Western Australia, his application 'would [sic be] unlikely to be viewed favourably, given the findings'.
Mr Hussein sought a review of that decision pursuant to s 34(1) of the Professional Combat Sports Act 1987 (WA). The Commission argued that no reviewable decision had been made which was capable of review under the relevant section. Mr Hussein contended that the resolution of the Commission had fettered its future exercise of statutory power, and was susceptible to review by the Tribunal.
The Tribunal considered the relevant provisions of both the enabling Act and the State Administrative Tribunal Act2004 (WA), and concluded that the Commission had not made a reviewable decision and accordingly that the proceeding should be struck out on the basis that it was misconceived.
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.
No similar disciplinary powers exist in relation to industry participants. It is however, an offence for a person to arrange a contest or to carry on the business or be employed as an industry participant unless registered - PCS Act s 33.
Registration of industry participants is dealt with by s 27. The Commission is required to register an applicant as an industry participant where it is satisfied that he or she is a fit and proper person, understands the obligations and responsibilities under the Act as they apply to them, and has sufficient financial and material resources to comply with the relevant requirements imposed upon industry participants of that kind under the Act.
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) and 47(5) 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.
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 issue for determination
Mr Hussein brings these proceedings for a review pursuant to s 34 of the PCS Act. The issue for determination is whether there is a 'decision of the Commission' in respect of which any application for review lies.
Background to the application
On 1 November 2010, the Commission conducted an inquiry under s 47(4) of the PCS Act in relation to a contest between Mr Paul Briggs and Mr Danny Green which was held on 21 July 2010. It resolved to impose certain penalties on Mr Briggs. That resolution is the subject of separate proceedings in the Tribunal.
Mr Hussein is not registered as an industry participant in Western Australia. He apparently had some involvement as Mr Briggs' trainer in the contest between Mr Briggs and Mr Green. On 2 November 2010, the Commission wrote to Mr Hussein advising him of a resolution which it had made at its meeting on 1 November 2010. The letter advised:
The Commission has resolved:
i)Should you apply to be registered as an industry participant in Western Australia your application would [sic be] unlikely to be viewed favourably, given the findings
Mr Hussein seeks a review of that resolution. The Commission submits that the resolution does not amount to a 'decision' for the purposes of s 34 of the PCS Act.
The Tribunal's jurisdiction
The Tribunal's jurisdiction derives from the provisions of enabling Acts read with the provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) - SAT Act s 13. The only jurisdiction of the Tribunal found in the PCS Act is that conferred by s 34. Applications under s 34 come within the review jurisdiction of the Tribunal - SAT Act s 17. The review of a reviewable hearing is by way of a hearing de novo - SAT Act s 27. When dealing with a matter in the exercise of its review jurisdiction, the Tribunal has the functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision - SAT Act s 29(1). The Tribunal may affirm the decision that is being reviewed, vary the decision that is being reviewed, or set aside the decision that is being reviewed and substitute its own decision - SAT Act s 29(3).
The Commission's resolution
The Commission conveyed its resolution to Mr Hussein in its letter dated 2 November 2010. That letter 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 Paul Briggs at Challenge Stadium Perth on 21 July 2010 the Commission is positively satisfied that yourself as Paul Briggs trainer, ought reasonably to have known Mr Briggs was not in a condition such as to be able to engage in a genuine contest due to issues with his nervous system and was also not in a condition to engage in a genuine contest and mount a credible defence. On that basis, the Commission has determined that 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 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 reputation as a trainer;
ii)your record and involvement in boxing;
iii)the gravamen of his involvement in the 'sham contest';
The Commission has resolved;
i)Should you apply to be to be registered as an industry participant in Western Australia your application would unlikely to be viewed favourably, given the findings.
There is no dispute that Mr Hussein is an 'industry participant', albeit that he is not registered. The capacity of the Commission to make orders pursuant to s 47(5) in relation to an industry participant would not appear to be dependent upon the industry participant being registered. The resolution of the Commission in relation to Mr Hussein was not, however, made pursuant to s 47(5). Nor was it a refusal to register Mr Hussein as an industry participant. No application for registration had been made by Mr Hussein, and it is apparent that the Commission was dealing only with an inquiry pursuant to s 47(4) of the PCS Act, and not an application for registration.
The resolution of the Commission has no apparent basis under the PCS Act. It can only be construed as an expression of concern by the Commission as to Mr Hussein's involvement in the contest between Mr Briggs and Mr Green. The resolution is of no legal effect in the sense of affecting any of Mr Hussein's rights or obligations. In my view, it cannot be construed as a 'decision of the Commission' for the purposes of the PCS Act.
In his submissions to the Tribunal, the applicant contends that:
By resolving that any future application by the applicant would be viewed unfavourably, the Commission has thereby placed a fetter upon its discretion. It has made plain that there will be a presumption against the registration of the applicant.
Reference is then made to certain authorities to the effect that a discretionary power exercisable from time to time must be exercised on each occasion in light of the circumstances at the time, so that a person cannot fetter the future exercise of discretion by committing himself now to the way in which he will exercise his power in the future - NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at 287 [17] per Gleeson CJ, quoting R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407, 496 - 497.
That proposition is clear and binding, and is not challenged by the respondent. The consequence, the applicant argues, is that, by fettering the future exercise of its discretion, the resolution is invalid as being beyond power 'and is a decision which is amenable to review'. The problem with that submission is the leap made from the proposition that the Commission has acted invalidly to the proposition that it follows that the invalid resolution is amenable to review in this Tribunal. If a decision-maker does some invalid act, or acts beyond its powers, in relation to something which is not a reviewable decision for the purposes of the enabling Act and the SAT Act, the Tribunal has no jurisdiction to review that conduct. In this case, the resolution in relation to Mr Hussein was not a 'decision' in the relevant sense, regardless of whether the resolution is, or is not, effective for any valid purpose.
Were Mr Hussein to apply for registration as an industry participant, and were the Commission to refuse that application, a right of review to the Tribunal would exist. If the applicant considered that the Commission had approached the application for registration on the basis that its discretion was fettered by its resolution of 1 November 2010, the applicant would have an option of either challenging the decision by way of judicial review in the Supreme Court, or seeking a hearing de novo of the decision in this Tribunal - see SAT Act s 19. In the event that a review by the Tribunal was sought, the Tribunal would consider the merits of the application afresh, and the validity of the original decision by the Commission would not fall for determination.
Conclusion
The resolution by the Commission in relation to Mr Hussein does not amount to a decision for the purposes of s 34 of the PCS Act, and accordingly Mr Hussein has no right of review by the Tribunal in relation to that resolution. The application should be dismissed.
Order
1.The application is dismissed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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