Ippolito v Boxing Authority of NSW

[2002] NSWADT 134

CITATION:	Ippolito -v- Boxing Authority of NSW [2002] NSWADT 134
DIVISION:	General Division
PARTIES:	APPLICANT Vincent David Ippolito RESPONDENT Executive Officer, Boxing Authority of NSW
FILE NUMBER:	023063
HEARING DATES:	22/04/2002
SUBMISSIONS CLOSED:	04/22/2002
DATE OF DECISION:	08/07/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	boxer - refusal of registration - Boxing & Wrestling Control Act - boxer - refusal of registration
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Boxing and Wrestling Control Act 1986
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT P Brady, solicitor
ORDERS:	Orders made 22 April 2002: That the decision of the Boxing Authority refusing Mr Ippolito's application to registrar as a boxer is affirmed.

1 On 18 March 2002, Mr Ippolito applied to the Tribunal pursuant to s.28 of the Boxing & Wrestling Control Act 1986 (”the Act”) and s.38 of the Administrative Decisions Tribunal Act, 1997 for a review of the decision of the Boxing Authority of New South Wales (“the Authority”) to refuse his application for registration as a boxer.

Facts

2 The facts in this application are not in dispute.

3 On 24 February 2002, Mr Ippolito applied to the Authority for registration as a boxer. He had not previously been registered as a boxer in New South Wales or elsewhere. At the time of his application Mr Ippolito was 36 years of age, having turned 36 in November of the previous year.

4 Attached to his application was a certificate of fitness, as prescribed under the Act, signed by Mr Ippolito’s doctor.

5 On 5 March 2002, at a meeting of the Authority, the Authority resolved that Mr Ippolito’s application be refused as he came within the Age Limitation Rule.

The Legislation

6 Section 15 of the Act prohibits a person from engaging in a boxing contest unless registered as a boxer. Section 16 contains a similar prohibition in respect of sparring. A contravention of either section constitutes and offence.

7 Sub section 8(1) of the Act provides that any male person of or above the age of 18 years may make an application to the Authority to be registered as a boxer of a prescribed class. Sub section 8(2) provides that the application is to be in the prescribed form and is to be accompanied by a medical certificate, which has been given no more than 7 days before the application is lodged, and the prescribed fee.

8 Paragraph 9(1)(a) of the Act provides that where the Authority is satisfied that the applicant satisfies the requirements of sub section 8(2) and the applicant is a fit and proper person to be registered as a boxer of the prescribed class for which registration is sought, the Authority is required to register the applicant as a boxer of the relevant class.

9 Paragraph 9(1)(b) of the Act provides that where the Authority is not satisfied of the matters referred to in paragraph 9(1)(a), the Authority is required to refuse to register the applicant as a boxer.

10 Once registered a person remains registered for 12 months (section 10 of the Act) and is able to apply for a renewal of that registration within the period of 56 and 21 days of the expiry of his 12 month registration (section 12 of the Act).

11 The rule making powers are contained in s. 73 of the Act. That section provides, so far as is relevant, the following:

Section 73
(1) The Authority may make rules, not inconsistent with this Act, for or with respect to any aspect of professional boxing in New South Wales and, in particular, for or with respect to:
(a) ….
(2) A rule shall not be made except with the approval of the Minister.
(3) A rule:
(a) shall be published in the Gazette; and
(b) shall take effect on and from the date of publication or a later date as specified in the rule.

12 On 27 October 1995 the “Age Limitation – Professional Boxers Rule” was published in the Gazette. The Minister for Sport and Recreation had given her approval of the Rule. That Rule, so far as it is relevant to this application, provided:

1. …
2. Any boxer not registered with the Authority in the calendar year immediately preceding his thirty-sixth (36) birthday is ineligible to be registered.
3. Any boxer registered with any recognised controlling body who will turn thirty-six (36) years of age or be older in the current year of registration will not be automatically registered but will be subject of individual consideration by the Authority which will determine whether or not the boxer will be registered and the Authority may require detailed medical examinations and reports before reaching a decision as to the period of registration and any conditions of registration.

13 In its submissions the Authority relied on the provisions of the abovementioned “Age Limitation – Professional Boxers Rule”.

14 Mr Ippolito submitted that Rule 2 could have no application because it required the boxer to be register the day before his 36th birthday. This he suggested no boxer was able to satisfy. He also submitted that the Authority had power to consider his application under Rule 3 as he was fit enough to engage in professional boxing.

Reasons and Decision

15 Mr Ipollito’s ability, both medically and otherwise, to engage in professional boxing was not in issue. What was in issue was whether the abovementioned rules in respect of age limitation applied to his application.

16 In my opinion, the abovementioned Rules provide for an age cut-off for persons who can be registered or re-registered under the Act. That cut-off age is 36 years. Rule 1 applies to those persons who have been registered under the Act. Rule 3 applies to those who are registered by another controlling body (e.g. a controlling body of another state). Rules 1 and 3 give the Authority a discretion in deciding whether to register the applicant or not.

17 Rule 2 applies to those who have not previously been registered in New South Wales or elsewhere, prior to their 36th birthday. No discretion is given to the Authority under this Rule. While I can understand Mr Ippolito may have some difficulty with the wording of this Rule, in my opinion it is not ambiguous nor does it have the restricted meaning suggested by Mr Ippolito.

18 As Mr Ippolito has not previously been registered in New South Wales, and he was already 36 years of age when he made his application, he comes within the terms of Rule 2. Had he applied for registration before November 2001, which would have been in the calendar year before his 36th birthday, the Rule would not have applied.

19 I am also of the opinion that Rule 3 has no application to Mr Ippolito. This Rule only applies where the person has been registered by another controlling body. Mr Ippolito has not been registered by such a body previously.

20 Accordingly, I am of the opinion that the Authority’s decision is the correct and preferred decision and I order that the decision of the Authority to refuse Mr Ippolito’s application to register as a boxer be affirmed.