Samuel Pretscherer v Motorcycling Australia - [2023] NST E22-270631

NST-E22-270631

Samuel Pretscherer v Motorcycling Australia

Determination

National Sports Tribunal

General Division

sitting in the following composition:

Panel Member Ms Bridie Nolan

in the arbitration between

Samuel Pretscherer Applicant

Represented by Peter Pretscherer, Authorised Representative
and Ms R.L. Gall of Counsel instructed by Simon Berry, Solicitor

And

Motorcycling Australia Respondent

Represented by Anthony Hynes, Manager, Legal & Insurance

PARTIES

The Respondent, Motorcycling Australia (MA) is the national governing body for the sport of motorcycling in Australia and is a Sporting Body as defined in the National Sports Tribunal Act 2019 (NST Act). MA was represented before the Tribunal by Anthony Hynes, the National Manager of Legal & Insurance at MA.
The Applicant, Samuel Pretscherer is a motorcyclist and a member of MA. The Applicant was represented before the Tribunal by Peter Pretscherer, Authorised Representative and Ms R. L. Gall of Counsel instructed by Simon Berry, solicitor at Hilliard and Berry Solicitors.

INTRODUCTION

The dispute relates to a decision of MA following events arising during the 2022 Yamaha Australian Off-Road Championship.
On 17 July 2022, the Applicant competed in the 2022 Yamaha Australian Off-Road Championship organised by MA. The particular race relevant to the dispute was the Special Test 6 E1 Class (the E1 Class).
During this E1 Class race, another rider, Mr Stefan Granquist, fell. Whilst racing, the Applicant saw that Mr Granquist had fallen and considered he might be injured. He rode a short distance past Mr Granquist before returning to the incident to ask if help was needed. The Applicant was told by a spectator (another rider who was not competing) who was assisting Mr Granquist to go and get help.
The Applicant was the sixth rider to arrive at the incident. Another rider, Mr Blake Hollis, was the fifth rider to arrive at the incident and was waved on by the spectator.
The lap results for the E1 Class initially included Mr Hollis at 12:21.088 in 3^rd place and the Applicant at 12:40.662 in 4^th place.
The Applicant applied to the Clerk of Course (CoC) to be recompensed for the time lost in stopping to offer assistance to Mr Granquist and the CoC determined the lap time to be assigned to the Applicant. The amendment to the Applicant’s lap time resulted in an advancement of the Applicant to 3^rd place and demoted Mr Hollis to 4^th place overall in the E1 Class.
Mr Hollis lodged a protest with the Steward to appeal the decision of the CoC in respect of the Applicant’s lap time. The Steward did not conduct a hearing as is required under the MA General Competition Rules (clause 6.1.8.1) and dismissed Mr Holllis’ protest.
Mr Hollis disputed the Steward’s determination by lodging a Notice of Dispute with the Respondent (the Notice of Dispute), purportedly, in accordance with the Non-NIF Dispute and Complaint Resolution Policy (the DCRP).
The Notice of Dispute was received by Mr Hynes as the MA National Complaints Manager and an internal investigation was undertaken employing a specialist…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NST E22-270631
Decision Date: 24 February 2023

CaseChat Overview and Summary

The case of Samuel Pretscherer v Motorcycling Australia was an arbitration heard by the National Sports Tribunal (NST) concerning a decision made by Motorcycling Australia (MA) following an incident during the 2022 Yamaha Australian Off-Road Championship. Samuel Pretscherer, a motorcyclist and MA member, had stopped to offer assistance to another rider, Mr. Stefan Granquist, who had fallen during a race. The Clerk of Course initially adjusted Pretscherer’s lap time to reflect the time lost, which resulted in Pretscherer advancing to 3rd place. Another rider, Mr. Blake Hollis, appealed this decision, leading to an investigation and subsequent decision by MA to significantly reduce the recompensed time for Pretscherer, demoting him back to 4th place. Pretscherer appealed this decision to the NST, arguing the MA decision was incorrect and should be overturned.

The legal issues before the NST included whether the Tribunal had jurisdiction to hear the appeal, whether Mr. Hollis' complaint could be considered a dispute under MA’s policy, the appropriateness of the process followed by MA, and whether the MA decision should be upheld or set aside. The Tribunal found that the jurisdiction was correctly engaged under the National Sports Tribunal Act 2019, but that MA had erred in their process and decision-making. Specifically, the Complaints Manager's decision to refer the dispute for investigation under the policy was legally erroneous and unreasonable, as the process outlined in the policy was not followed. Furthermore, the imposition of a sanction was deemed an inappropriate choice of process for resolving the dispute. These errors rendered the MA decision invalid.

The Tribunal concluded that while it had the power to set aside the MA decision, it could not substitute its own decision for that of the original Decision Maker as this would exceed the scope of the parties' agreement as outlined in the Arbitration Agreement. The Tribunal held that the MA decision should be set aside but did not substitute its own decision in place of the original decision. The Tribunal’s final determination was that the MA decision be set aside, effective immediately.

Orders