Sbat v Combat Sports Authority of NSW

[2025] NSWCATAD 27

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sbat v Combat Sports Authority of NSW [2025] NSWCATAD 27

Hearing dates:

2 and 3 December 2024

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Principal Member

Decision:

(1) The decisions under review are affirmed.

(2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 and s 78 of the Combat Sports Act 2013 other than to the Tribunal and respondents, any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets, is prohibited.

Catchwords:

COMBAT SPORTS ACT - administrative review – industry participant licences and prohibition order –- trainer – second – fit and proper person

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative tribunal Act 2013

Combat Sports Act 2013

Cases Cited:

AJO v Director-General of Transport [2012] NSWADT 101 at [26]

Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Briginshaw v Briginshaw (1938) 60 CLR 316

Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42

Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387

Ford v Commissioner of Police [2022] NSWCATAD 87

Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127

Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; 321 ALR 248

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Tukel v Combat Sports Authority [2023] NSWCATAD 180

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

Anti-Doping Policy 2015, Combat Sports Authority of NSW

World Anti-Doping Code 2021, World Anti-Doping Agency

Category:

Principal judgment

Parties:

Hany Sbat and Adam Omar (Applicants)
Combat Sports Authority of NSW (First Respondent)
Commissioner of Police, NSW Police Force (Second Respondent)

Representation:

Counsel:
DF Elliot (Applicants)
K Heath (Respondents)

Solicitors:
Krayam & Co Lawyers (Applicants)
Crown Solicitor (Respondents)

File Number(s):

2024/00047622, 2024/00047623, 2024/73193

Publication restriction:

1. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 78(1)(a) of the Combat Sports Act 2013 (CS Act), the publication of the Confidential Material filed 17 September 2024 or the Further Confidential Material filed 25 November 2024 or the material received in evidence at the confidential hearing on 3 December 2024 is prohibited.
2. Pursuant to s 64(1)(d) of the CAT Act and s 78(1)(a) of the CS Act the disclosure of the Confidential Material filed 17 September 2024 or the Further Confidential Material filed 25 November 2024 or the material received in evidence at the confidential hearing on 3 December 2024 or matters contained in the Confidential Material filed 17 September 2024 or the Further Confidential Material filed 25 November 2024 or the material received in evidence at the confidential hearing on 3 December 2024 is restricted to the respondents, the respondents’ legal representatives and the Tribunal.
3. Pursuant to ss 64(1)(b) and 64(1)(c) of the CAT Act and s78(1)(b) of the CS Act the publication or reporting of the confidential hearing, including any evidence given in the confidential hearing, is prohibited.
4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 and s 78 of the Combat Sports Act 2013 other than to the Tribunal and respondents, publication, broadcast or disclosure of any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets, is prohibited.

REASONS FOR DECISION

1. Mr Sbat and Mr Omar, the applicants, each held registration as industry participants in 16 classes of registration under the Combat Sports Act 2013 (CS Act).

2. The Combat Sports Authority of NSW cancelled each of the applicants’ registrations on the basis each was not a fit and proper person to hold registration and a prohibition order was also issued to Mr Sbat, prohibiting him from attending any combat sports contest or weigh-in for three years.

3. The applicants seek review of the decisions to cancel their registrations and Mr Sbat also seeks review of a decision to issue the prohibition order to him.

4. The Combat Sports Authority and the Commissioner of Police are respondents in these proceedings.

5. The Tribunal has decided to affirm the decisions for the following reasons.

Background

6. The applicants are co-owners of a gym in Sydney. They were industry participants under the CS Act as both trainers and seconds.

7. Mr Sbat was granted registration in 16 classes under the CS Act on 9 September 2022. Mr Omar was granted registration in the same 16 classes on 18 August 2022. Mr Sbat’s registration was cancelled on 10 January 2024 and on the same day he was issued with a general prohibition order under s 75(1) of the CS Act. Mr Omar’s registration was cancelled on 19 February 2024.

8. Mr Sbat lodged applications for administrative review with the Tribunal on 7 February 2024 and Mr Omar lodged an application for administrative review with the Tribunal on 26 February 2024. The Tribunal made orders that evidence in one proceeding was evidence in the two other proceedings and that all three proceedings would be heard together.

Material before the Tribunal

Open material

9. The applicants provided affidavits sworn by each applicant during a show cause process, two affidavits of Mr Omar sworn 27 November 2023 and 2 February 2024, and one affidavit of Mr Sbat sworn 27 November 2023, as well as written submissions prepared for each applicant during the show cause process, to the Tribunal and the respondents. The applicants also provided further written submissions at the hearing on 3 December 2024.

10. The respondents provided to the Tribunal and the applicants: two bundles of documents, one in respect of each applicant, filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act); an affidavit with exhibit of a legal representative of the respondents; a statement of Detective Sergeant Goodheart of the Police; and two written submissions, one in respect of each applicant. The respondents also provided further written submissions regarding conditions on 11 December 2024.

11. Both applicants and the detective sergeant gave oral evidence and were cross examined at the hearing, Mr Sbat by audio visual link because he was overseas.

Confidential material

12. The respondents also provided confidential material to the Tribunal.

13. The Tribunal made orders under s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 78 of the CS Act prohibiting the disclosure to the applicants and the public of confidential material that the respondents sought to rely on in the review, as well as an order under s 49(2) of the CAT Act that the part of the hearing dealing with the confidential evidence be dealt with in private.

14. For the purposes of this review a further order will be made preventing disclosure of any part of a paragraph in these reasons that commences with [NOT FOR PUBLICATION] other than the words in those brackets.

Applicants’ case

15. The applicants submit they are of good character and are both fit and proper persons to hold registration under the CS Act. While each applicant admits to past criminal behaviour, both applicants submit they have made positive changes to their lives since their previous convictions. The applicants deny any association with active criminals who commit crimes or any association with organised crime groups and networks.

16. Mr Omar submits his past unlawful use of performance enhancing drugs was necessary to treat a medical condition and since 2023 he uses such drugs by prescription obtained legally.

Respondents’ case

17. The respondents submit Mr Sbat is not a fit and proper person to hold registration under the CS Act because of his criminal history, because he is subject to a firearms prohibition order and a weapons prohibition order, and because of his associations with people known to be involved in serious criminal activity and known to be members of organised criminal networks.

18. The respondents submit Mr Omar is not a fit and proper person to hold registration under the CS Act because of: his past use of performing enhancing drugs, including unlawful use; his criminal history; and his associations with people known to be involved in serious criminal activity and known to be members of organised criminal networks.

19. The respondents submit the correct and preferable decision in this review is to affirm the decisions to cancel the applicants’ registrations and to issue a prohibition order to Mr Sbat.

Role of the Tribunal

Jurisdiction

20. The Tribunal has jurisdiction to review an administratively reviewable decision: ss 7, 9 and 55 of the ADR Act. Section 77(1)(g) of the CS Act provides that applications may be made to the Tribunal for administrative review of a decision to take disciplinary action against a person, which includes cancelling their registration and s 77(1)(j) of the CS Act provides that applications may be made to the Tribunal for administrative review of a decision to make a prohibition order. The Tribunal has jurisdiction to hear and determine the applications for review.

Administrative Review

21. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

22. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. The standard of proof applying in this review is the balance of probabilities. These is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, they provide guidance for the Tribunal’s exercise of jurisdiction, especially in relation to any character issues for consideration in this review.

Confidential material limitation

23. Neither the applicants nor their legal representatives have had access to the confidential material lodged with the Tribunal by the respondents, and as a result, the applicants have not been able to test that evidence. Despite this limitation, the Tribunal takes the confidential information into account in this review and has considered that limitation when assessing the weight given to the confidential material.

Legislation

24. The objects of the CS Act, as set out in s 3 of the CS Act, are:

(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.

25. Section 30(1)(d) of the CS Act provides a ground for taking disciplinary action against an industry participant is when “the person is not a fit and proper person to be registered”.

26. Section 33 of the CS Act specifies that disciplinary action may be taken as follows:

(1)  The Authority may take disciplinary action against a registered combatant, industry participant or promoter if the Authority is of the opinion that there are grounds on which the action may be taken and the person has not, within the period specified in the show cause notice, shown sufficient reasons why the action should not be taken.

(2)  The following actions are disciplinary actions—

(a)  cancellation of registration,

…

27. Section 75 of the CS Act permits the Authority to issue a general prohibition order to a person if the Authority is of the opinion there are grounds for taking disciplinary action against the person.

28. Section 78 of the CS Act makes certain information confidential to the Tribunal and the respondents as follows:

(1)  In determining an application for an administrative review of a decision that was made on the ground of a criminal information disclosure, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013)—

(a)  is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information without the approval of the Commissioner, and

(b)  in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant’s representative and any other interested party, unless the Commissioner approves otherwise.

Note…

29. The World Anti-Doping Agency’s World Anti-Doping Code 2021, relevant by operation of the Combat Sports Authority’s Anti-Doping Policy, prohibits athlete support personnel from possessing prohibited substances: see [2.6.2], [21.2]. Under appendix 1 to the Code, athlete support personnel includes a coach or trainer. The Code also requires athlete support personnel to know and comply with anti-doping policies and rules: see [21.2].

Consideration

Procedural matter

30. At the hearing the applicants sought to tender material, namely two prescriptions dated 21 November 2023 and a tax invoice 5 February 2024, in support of paragraph 23 of Mr Omar’s affidavit of 27 November 2023 where he stated that since his convictions in 2020 and 2021 he had “only taken medicine as prescribed and directed by a specialist”.

31. The Tribunal refused to admit the further material in all the circumstances. In doing so, the Tribunal applied the guiding principle under s 36 of the CAT Act and noted the Tribunal is to determine its own procedure under s 38 of the CAT Act. The Tribunal took into account that orders for exchange of information had required Mr Omar to provide all his evidence by 17 May 2024 and any evidence in reply by 5 July 2024 which was extended to 11 November 2024 on 9 July 2024. The Tribunal also considered the likely prejudice to the respondent of the late arrival of the material, which had been in Mr Omar’s possession since before the Tribunal proceedings commenced, in circumstances where a preliminary internet search by the respondent indicated an investigation into the prescribing doctor would be likely. In any case it was accepted Mr Omar’s use of any performance enhancing drugs was with prescription from 2023 for the purposes of this review therefore the material was not relevant to an issue in dispute in this review.

Applicants’ history

Mr Sbat

32. Mr Sbat’s criminal history is as follows:

1. In 2009, while a minor, he was arrested in possession of over 50g of cannabis in small bags, cash and multiple mobile phones. He pleaded guilty to prohibited drug supply, dealing with the proceeds of crime and prohibited drug possession, for which he was placed on probation.

2. In 2011 as a result of an incident with a driving member of the public, he pleaded guilty to charges of stalk/intimidate intending to cause fear, affray and destruction of property for which he was sentenced to 100 hours of community service and placed on an 18 month good behaviour bond.

3. In 2013 he assaulted a nightclub patron by striking the victim on the temple with his right elbow, causing the victim to fall to the floor. He pleaded guilty to common assault and received a fine and a 12 month good behaviour bond.

4. In 2015 he punched and elbowed a casino staff member in Melbourne. He pleaded guilty to unlawful assault and recklessly causing injury charges and received a fine and a lifetime ban from Crown Casino.

33. Mr Sbat is subject to a firearms prohibition order and a weapons prohibition order, both orders were issued in 2017. Mr Sbat’s evidence was that he did not seek to challenge the making of those orders because he has no need for guns or weapons.

34. [NOT FOR PUBLICATION]

35. [NOT FOR PUBLICATION]

Mr Omar

36. Mr Omar has the following criminal history:

1. In 2014 he admitted to possession of two vials and 15 pre-filled syringes of illegal performance enhancing drugs, commonly referred to as steroids, for personal use. He pleaded guilty to a possess prohibited drug offence and received a s 10 bond under the Crimes (Sentencing Procedure) Act 1999.

2. In 2019 he admitted to further possession of prohibited drugs when 9 vials of steroids were found in a kitchenette in his gym. He pleaded guilty to possess prohibited drugs charges and received a $150 fine.

3. In 2020 he admitted to possession of 17 vials and approximately 400 tablets of steroids. He pleaded guilty to possess prohibited drugs charges and received a conditional release order under s 10 of the Crimes (Sentencing Procedure) Act 1999.

4. In 2021 he admitted to possession of cannabis, cannabis oil, a grinder and steroids for personal use. He pleaded guilty and, as this was within the period of the previous conditional release, for all the drug offences he was convicted and sentenced to a 12 month community corrections order.

37. On at least two occasions Mr Omar told the court he had learned his lesson and would no longer obtain and use illegal substances but then subsequently was charged with further offences for further conduct relating to illegal substances.

38. Mr Omar’s evidence was that he needed to use steroids because of medical conditions including diabetes and to deal with pain from injuries, noting that performance enhancing drugs assisted recovery from injury and dealing with pain. Mr Omar self medicated via the black market when the patches and roll on substances provided by medical professionals were not sufficient, in his opinion, to manage his conditions. His evidence was that he now, on occasion, since 2023 uses lawfully prescribed performance enhancing drugs to deal with those medical conditions.

39. [NOT FOR PUBLICATION]

Gym ownership and associations

40. The applicants co-own a gym in Sydney.

41. In 2018, during a police search of the gym, 9 vials of steroids were found in the gym. Mr Omar admitted the steroids were for his personal use and was dealt with by the court as set about above at [36(2)].

42. In 2022, during a police search of the gym, various substances were found in a kitchenette at the gym. The substances included steroids and human growth hormone and all were prohibited substances under the World Anti-Doping Agency code, for both in and out of competition. Not all the substances found were authorised in Australia for human use and some were only authorised for animal use.

40. It is the evidence of the applicants that access to the kitchenette was restricted to receptionist and applicants. Following the 2022 incident, neither of the applicants took steps to ascertain who owned the performance enhancing found at the gym.

41. In July 2021 people were present in the gym when the gym was required to be shut because of public health orders. Mr Sbat was observed to be at the gym, as well as a person with an extensive criminal history.

42. In early 2023 a man was murdered in the carpark outside the gym. The victim was shot in front of his 12 year old son. One public theory of the murder is that the victim was mistaken for Mr Sbat.

43. The detective sergeant provided expert evidence based on his review of criminal intelligence reports and his own experience as a police officer. The detective sergeant was a candid and careful witness and the Tribunal accepts he has extensive experience in criminal investigations including investigations of organised criminal groups and networks. The detective sergeant’s evidence is that the applicants are associates of people who are connected to an organised crime group.

44. The applicants deny any association with active criminals who commit crimes. The applicants also deny any association with organised crime groups and networks. The applicants’ evidence as to their changed characters since their past criminal offences was not supported by any independent verification and is not consistent with the expert evidence as to their associations.

45. In all the circumstances and on the material before the Tribunal, particularly the expert evidence, the Tribunal is satisfied the applicants are associates of people who are connected to an organised crime group.

Are the applicants each a fit and proper person to hold a registration?

49. The expression ‘fit and proper’ has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-7 the High Court said:

The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

50. Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of the expression ‘fit and proper person’ (at p 380):

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.

51. Their Honours went on to say (at p 388):

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

52. Mason CJ (with whom Brennan and Deane JJ agreed) stated that the concept “fit and proper person” should not be construed narrowly and stated at (pp 348-349):

Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.

53. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76):

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

54. Whether an applicant is a fit and proper person to hold an authority of some kind is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to ‘the activities in issue’: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in ‘light of the nature and purpose’ of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].

55. In Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387 at [116]-[117] after citing Bond, the Appeal Panel relevantly observed:

This suggests that in the context of the CS Act, we, must be satisfied on the material before the Tribunal, that the applicant has the requisite knowledge of the duties and responsibilities of a registered participant (combatant) in amateur combat sports contests, but that he also is possessed with sufficient moral integrity and rectitude of character as to permit him to be safely registered to the public as a person to be entrusted as a participant (combatant) in such contests (see Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 per Walters J).

Without being exhaustive, where there is accepted ‘improper conduct’ or, as in this case, serious criminal conduct, in order to be satisfied that the applicant is a ‘fit and proper person’ regard should be had to what that conduct indicates as to:

(1) The ability of the applicant to engage in combat sports in accordance with its rules which involve issues of:

(a) Harm minimisation in regulating the use of physical force in the combat sport in question;

(b) The health and safety of combat sport contestants more broadly; and

(c) Honesty and integrity in following the relevant laws and rules of the combat sport in question.

(2) Whether the general community or public can have confidence that the above will occur; and

(3) Whether registration of the applicant will bring the industry as a whole into disrepute or is otherwise incompatible with the general objects of the CS Act as expressed in s 3(d) to promote combat sports in New South Wales.

56. In Fisher the applicant was a combatant who had committed serious criminal conduct. The applicants in this review are not combatants and instead are trainers and seconds. However, the considerations identified in Fisher set out as cited above remain relevant to the determination of whether a person is a fit and proper person for the purposes of the CS Act.

57. Further, Tribunal must consider the past conduct of the applicant as a significant guide: see Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]; and is to look at the Applicant’s conduct as a whole, including potential future conduct with past conduct of the Applicant being a significant guide in assessing likely future conduct: see Ford v Commissioner of Police [2022] NSWCATAD 87 at [59].

58. An applicant’s personal interests in registration flowing from a fit and proper person determination is not relevant to the assessment of fitness and propriety: see Fisher at [65]-[69] and [80]-[81].

Mr Sbat

59. The Tribunal cannot be satisfied Mr Sbat would engage in combat sports in accordance with its rules which involve issues of harm minimisation in regulating the use of physical force, nor would the public have confidence it would occur. This is because Mr Sbat’s prior criminal offending is serious. Of particular concern, in the context of combat sports, is that most of his prior offences involved the use of violence.

60. The Tribunal cannot be satisfied Mr Sbat would engage in combat sports in accordance with its rules which involve issues of the health and safety of combat sport contestants, nor would the public have confidence it would occur, because of Mr Sbat’s prior conviction relating to prohibited drugs, and his ownership of a gym where illegal performance enhancing drugs were found at the gym on more than one occasion.

61. The fact Mr Sbat is subject to a firearms prohibition order and a weapons prohibition order is also relevant to whether he is a fit and proper person, in part because of the reputational consequences for combat sports: see Tukel v Combat Sports Authority [2023] NSWCATAD 180 at [106].

62. Considering all of the circumstances set out above, the Tribunal is satisfied registration of Mr Sbat will bring the industry as a whole into disrepute and is otherwise incompatible with the general objects of the CS Act to promote safety and integrity in combat sports in New South Wales.

63. [NOT FOR PUBLICATION]

64. Therefore, in all the circumstances, on the material before the Tribunal, the Tribunal is not satisfied Mr Sbat is a fit and proper person to hold registration under the CS Act.

65. Parliament’s intention in providing for prohibition orders, as set out in the Second Reading Speech (NSW Parliament Hansard, Legislative Assembly, 23 October 2013, p 24616) was to:

…The Combat Sports Authority may make orders under section 74 to prevent persons from engaging in contests or sparring, arranging or holding contests, being involved in the combat sports industry, attending premises where contests or weigh-ins are being held, or attending gyms and other places where combat sport training occurs. The powers to prevent attendance are similar to "warning off" powers in the racing industry and may be used to keep persons with known criminal associations away from contests and gyms. Police will be a key partner in prohibition order proceedings of this kind. This significant change will markedly extend the ability of the Combat Sports Authority to deal with integrity issues that occur outside the contest environment.

66. As a consequence of the Tribunal finding Mr Sbat is not a fit and proper person to hold registration under the CS Act, which is a ground on which disciplinary action may be taken under s 30(1)(d) of the CS Act, s 75(1)(a) of the CS Act is also satisfied. Therefore, a general prohibition order may be issued to Mr Sbat.

67. The prohibition order prevents Mr Sbat from entering a premises where a combat sports contest or weigh in is being conducted. On the material before the Tribunal, particularly the expert evidence the Tribunal accepts, that Mr Sbat is an associate of people who are connected to an organised crime group, the Tribunal is satisfied the issuing of a prohibition order was appropriate to protect the public.

68. [NOT FOR PUBLICATION]

Mr Omar

69. Mr Omar admitted to extensive use of performance enhancing drugs over an extended period between 2014-2021. The Tribunal accepts the submission of the respondents that use of performance enhancing drugs “strikes at the heart of the integrity, fairness and safety of combat sports”. This is because the objects of the CS Act make it clear that health and safety of participants and integrity of contests are fundamental to the legislation. The use of performance enhancing drugs, including steroids, by anyone involved in the combat sports industry will bring the industry as a whole into disrepute.

70. Mr Omar’s stated recent and intended future use of performance enhancing drugs, albeit by prescription remains an integrity concern for the industry given the objects of the CS Act.

71. The Tribunal cannot be satisfied Mr Omar would engage in combat sports in accordance with its rules which involve issues the health and safety of combat sport contestants, nor would the public have confidence it would occur. This is because of: Mr Omar’s prior convictions relating to prohibited performance enhancing drugs; his admitted use of prohibited performance enhancing drugs over a significant period of time, albeit self administered to address a medical condition; and his ownership of a gym where illegal performance enhancing drugs were found at the gym on more than one occasion.

72. Further, Mr Omar’s evidence was that he was not aware of the status of many of the relevant substances under the relevant World Anti-Doping Authority Code and that, in error, he thought relevant restrictions (see [29] above) only applied to combat sport competitors, not to coaches, trainers and seconds. This is of concern because an industry participant, particularly one of Mr Omar’s experience who has coached over 300 boxers and fighters, is required to know the rules and to follow the rules in relation to performance enhancing drugs. An industry participant is obligated to inform themselves of relevant rules, especially when it comes to the use of performance enhancing drugs in combat sports in order to preserve the integrity of the sport and the safety of its participants.

73. [NOT FOR PUBLICATION]

74. Therefore, in all the circumstances on the material before the Tribunal, the Tribunal is not satisfied Mr Omar is a fit and proper person to hold registration under the CS Act.

Proposed conditions

75. Towards the conclusion of the hearing, the applicants made submissions that the Tribunal should consider imposing a condition on Mr Omar’s registration requiring monthly drug testing.

76. The Tribunal has the power to impose conditions on registration: see s 27(1) of the CS Act. A person is to be assessed as fit and proper by reference to the conditions applying to registration: see Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; 321 ALR 248 at [35].

77. On the basis of the assessment of the Tribunal, at [69]-[72] above, the proposed condition to require Mr Omar to undergo monthly drug testing does not overcome the findings of the Tribunal such that the Tribunal could consider Mr Omar to be a fit and proper person to hold registration under the CS Act as a result of the operation of a condition. Mr Omar’s past unlawful use and potential future use of performance enhancing drugs were not the only factors contributing to the assessment of Mr Omar’s fitness and propriety. Monthly drug testing will not assist if future performance enhancing drug use occurs on the basis of prescription.

78. The proposed condition therefore does not alter the Tribunal’s assessment as to the ultimate fitness and propriety of Mr Omar holding registration under the CS Act.

Conclusion

79. The Tribunal having found the applicants are not fit and proper persons to hold registration under the CS Act, it follows that the correct and preferable decisions were to cancel the registrations of both of the applicants under the CS Act. Further, the correct and preferable decision is also to issue a general prohibition order to Mr Sbat.

80. If follows that the decisions under review should be affirmed.

Order

1. The decisions under review are affirmed.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 and s 78 of the Combat Sports Act 2013 other than to the Tribunal and respondents, publication, broadcast or disclosure of any part of any paragraph of these reasons which commence with [NOT FOR PUBLICATION] other than the words in those brackets, is prohibited.

**********

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

Decision last updated: 23 January 2025