Smith v Combat Sports Authority

[2020] NSWCATAD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Smith v Combat Sports Authority [2020] NSWCATAD 61
Hearing dates:	On the papers
Date of orders:	21 February 2020
Decision date:	21 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg RFD, Senior Member
Decision:	(1)   The proceedings be dealt with on the papers without a hearing. (2)   Father Smith’s application to the Tribunal is dismissed for lack of jurisdiction.
Catchwords:	JURISDICTION – administrative law - relevance of issues raised by parties – enabling legislation – basis of Tribunal’s jurisdiction.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Combat Sports Act 2013 (NSW) Combat Sports Bill 2013 and Explanatory Notes
Cases Cited:	None cited
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Father David B. Smith (Applicant) Combat Sports Authority (Respondent)
Representation:	Father David Smith (Applicant in person)   Solicitors: C Burnell (Office of Sport) (Respondent)
File Number(s):	2019/00300034
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. The Applicant (Father Smith) was scheduled to take part in a boxing contest (the Contest) to be held on Friday, 22 March 2019 as part of a fund-raising event (the Event). On the date of the Event the Respondent (the Authority) determined “that the contest should not be permitted to be held”, Statement of Reasons at [4.4] (the Determination). The Contest promoter was informed of the Determination and, notwithstanding objections by Father Smith, the Contest did not take place.

2. On 24 September 2019 Father Smith filed an application for a Tribunal review of the Determination (the Application).

3. At a directions hearing on 29 October 2019 the Authority orally submitted that the Determination was not reviewable by the Tribunal and the Tribunal made certain procedural orders/directions. The Tribunal made further orders/directions on 19 November 2019.

4. On 28 November 2019 the Authority filed an “Application for miscellaneous matters” seeking orders by the Tribunal that it did not have jurisdiction to deal with the Application and that oral submissions were not required to determine the question of jurisdiction (the Interlocutory Application). Father Smith disputes the Authority’s claim that the Tribunal lacks jurisdiction. Both parties agree that the jurisdictional issue may be dealt with without the need for a hearing.

5. Both the Authority and Father Smith have filed documents in support of their positions as to the extent of the Tribunal’s jurisdiction to deal with the Application.

Material before the Tribunal

6. The Authority filed and relies on:

1. the Interlocutory Application.

2. an Outline of Submissions dated 12 November 2019 filed 19 November 2019 (RS1). The three attachments to RS1 are described at the foot of RS1 as:

(a) Combat Sports Contest Permit for a Pro/Am Boxing Contest to be held at Club Punchbowl on Friday 22 March 2019 (permit No. Nasari220319) dated 13 March 2019.

(b) Additional Condition imposed on permit No. Nasari220319 dated 22 March 2019.

(c) Statement of reasons for imposing an Additional Condition on the Permit; and.

3. an Outline of Submissions dated 27 November 2019 filed on 28 November 2019 by Mr Chad Burnell, legal representative for the Authority (RS2).

7. Father Smith filed and relies on:

1. the grounds in his Application; and

2. his written Outline of Submissions dated 16 December 2019 filed 17 December 2019 (AS).

Issues before the Tribunal

8. Having regard to the Interlocutory Application, the main issue now before the Tribunal is whether the Tribunal has jurisdiction to hear and deal with Father Smith’s Application.

Father Smith’s Application

9. The Application contains a narrative by Father Smith. The narrative includes the following:

An advertised fight was scheduled for March 22, 2019. The purpose of the fight was to raise money for an organised trip to Syria to help those in need there …

A considerable amount of funds was raised for the event and some of my supporters paid up to $2,000 to attend …

On the evening of March 22, one hour before my fight was due to take [sic] the promoter informed me that the Combat Sports Authority had been in contact and was prohibiting me from boxing at the event. No reason was given. I wrote to [the Authority] … I contacted the Minister … and I also made efforts to contact others who may be able to help me, all to no avail. No one will respond to me.

I seek answers as to why I was prohibited from boxing at this event. Why was I only advised one hour before I was scheduled to fight?

… I am extremely embarrassed that people who paid specifically to see me fight were very disappointed. The prospects of being able in the future to organise a fund-raising fighting event such as that organised for March 22 is substantially diminished.

10. Father Smith’s narrative concludes with “I respectfully seek a review by the Administrative Tribunal to ascertain the answers [to] the above questions.”

Jurisdiction of the Tribunal

General legislative scheme

11. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (CAT Act). The objects of the CAT Act include enabling the Tribunal to review decisions made by certain persons and bodies, to determine appeals against such decisions and to ensure that the Tribunal’s processes are open and transparent (ss 3(b)(ii) and (iii) and s 3(f)).

12. Part 3 of the CAT Act, ss 28 – 34, is entitled ‘Jurisdiction of Tribunal’. Section 28 provides “The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.”

13. In summary, Part 3 provides that the Tribunal has jurisdiction if specific legislation enables the Tribunal to exercise jurisdiction, including jurisdiction to make ancillary and interlocutory decisions, and not otherwise.

Specific legislative scheme

Combat Sports Act 2013 (NSW)

14. Section 3 of the Combat Sports Act 2013 (NSW) (CS Act) provides that the objects of the Act include “(a) to promote the health and safety of combat sport contestants”, and “(c) to regulate combat sport contests on a harm minimisation basis,”.

15. All references in these reasons to legislative provisions are to the CS Act unless stated to the contrary.

16. “Combat sport” and “combat sport contest” are defined in s 4. There is no dispute that the Contest, a boxing competition, was a combat sport contest and also a “professional combat sport contest” as defined in s 5.

17. Part 6 of the CS Act (ss 79 to 83) is named “Combat Sports Authority”. It creates the Authority as a NSW government agency, outlines the Authority’s membership, the role of the relevant Minister, and the Authority’s functions which include at s 81(1) “… to supervise and regulate professional and amateur combat sport in New South Wales”.

Father Smith’s claims as to jurisdiction

18. Father Smith’s claims in AS include:

1   The Applicant submits that this Tribunal has the jurisdiction to hear this matter.

2   The Respondent relies upon s. 77 of the Combat Sports Act (NSW) 2013 (hereafter referred to as the Act) to submit that the Tribunal lacks jurisdiction to hear this matter, based on its interpretation of s77 (1) and s77(1) (i).

3   It is submitted that s.77 of the Act is irrelevant in this matter.

4 S.77 of the Act relates to the Tribunals power to review a decision made pursuant to s.44 of the Act.

5   The Applicant does not seek a review of the Authority's decision but rather is asserting that the decision must be void because the Respondent was not entitled to revoke the permit to allow the contest that is the subject of these proceedings (hereafter referred to as the contest).

6 This application is based upon the Respondent's failure to comply with s.44 of the Act.

6 (sic) In other words the Respondent incorrected [sic] used the power bestowed upon it by s.44 of the Act.

7 The Applicant [sic] is based upon the Respondent's failure to comply with s.44 of the Act.

8 S.44 (2) of the Act provides that "the Authority must not revoke a permit to hold a combat sports contest within 24 hours before the scheduled start of the contest unless it is satisfied that special circumstances exist warranting that action."

…

18 The Applicant asserts that the breaches of s. 44 resulted in a failure to afford him procedural fairness meaning that the decision made by the Tribunal was not a decision at all.

…

28 The Applicant is actually seeking a review of the decision made by the Respondent pursuant to s.44 on the basis that it had no right to make its decision because it was not comply [sic] with the section.

19. Father Smith’s submissions in AS included the following “in specific answer to the issues raised by “the Authority”:

20   In relation to the assertion that the Applicant is not an interested person; 'the Applicant notes that the legislation is not helpful. The term is not defined by the Act.

21   It is submitted that the Applicant must be an interested person given the ordinary meaning of the term.

…

28 The Applicant is actually seeking a review of the decision made by the Respondent pursuant to s.44 on the basis that it had no right to make its decision because it was not comply with the section.

The Authority’s Interlocutory Application, further submissions and evidence

20. In the Interlocutory Application the Authority sought two orders, which are substantially repeated at [1] in RS2, namely:

That the Tribunal:

(a) declare that it does not have administrative review jurisdiction to hear the matter, in accordance with s 77(1)(i) of the Combat Sports Act 2013, s 9(2) of the Administrative Decisions Review Act 1997 and s 30(1) of the Civil and Administrative Tribunal Act 2013; and

(b)   direct that oral submissions are not required to determine the question of jurisdiction.

21. Under the heading “Background”, paragraphs [1] to [6(h)] and [16] of RS1 outline a series of assertions of fact in support of submissions by the Authority in the remainder of RS1.

22. Similarly, under the heading “Background”, paragraphs [2] to [7(h)] of RS2 outline a series of assertions of fact in support of submissions by the Authority in the remainder of RS2.

23. The assertions referred to in the preceding two paragraphs are substantially identical. To the extent that these assertions are not either admitted by Father Smith or supported by statements from witnesses or by documentary evidence before the Tribunal, the assertions are only submissions and are not accepted by the Tribunal as evidence of their accuracy.

24. The attachments to RS1 include a “Statement of Reasons” for the “Additional Condition” dated 11 November 2019 over the signature of Adam Casselden SC, Chairperson, for and on behalf of the Authority (the Statement). Unless stated in these reasons, the facts asserted in the Statement are accepted by the Tribunal as evidence.

25. I observe that at [3.5] in the Statement, Background Information, the Authority referred to a concern as to a “subdural hematoma” suffered by Father Smith which caused a Safety Prohibition Order Show Cause notice to be issued to Father Smith in December 2017. The Authority also included in its Reasons for Determination at [4.3] its “genuine concern” as to Father Smith’s “previous health history” without further comment. I find this somewhat misleading as the Authority made no reference to a certificate filed with the Tribunal, issued by a neurosurgeon, dated 8 February 2018 stating that Father Smith was “fit to box”. The certificate appears to have been served on the Authority in September 2019 together with Father Smith’s Application. The Application background acknowledged a “slight brain haemorrhage” suffered by Father Smith, referred to a clear follow-up CT scan and MRI some 6 weeks after the August 2017 concussion, and that the Authority had in February 2019 lifted the “prohibition order” which had prevented Father Smith boxing.

Consideration

Determination on the papers

26. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) hearings open to the public are required for Tribunal proceedings, subject to exceptions outlined in that section. One of the exceptions is that the Tribunal may dispense with a hearing if it is satisfied that the relevant issues can be adequately determined in the absence of the parties by considering any written material provided to the Tribunal and the Tribunal has afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account.

27. I am satisfied that both issues can be adequately determined by the Tribunal in the absence of the parties by a consideration of material before the Tribunal.

28. The parties were afforded an opportunity to make submissions as to whether the Tribunal should make an order dispensing with a hearing in respect of each of the issues. Both parties consented to the Tribunal dispensing with such a hearing and determining issues on the papers. I proceeded accordingly.

29. Notwithstanding Father Smith’s claim at [5] in AS that he “does not seek a review” of the Determination I note that at [28] in AS he expressly sought such a review and in the Application he sought “answers as to why [he] was prohibited from boxing at” the Event. I assume the above excerpt from [5] is a typographical error.

30. Part 5, ss 77 and 78, is headed “Administrative review by [the Tribunal]”.

31. Section 77(1) and (1)(i) provide:

77(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) [ADR Act] of any [decisions specified in s 77(1) (a) to (j)].

…

77(1)(i) a decision under section 42 or 44 to impose conditions in respect of a permit held by the person or to vary or revoke a condition of such a permit or to revoke a permit, but only if the decision is made more than 24 hours before the scheduled start of the combat sport contest concerned,

32. Father Smith claims that s 77(1)(i) is not relevant. The Authority claims that s 77(1)(i) is relevant but only to the extent that s 77(1)(i) precludes the Tribunal having any power to review the Determination because it was made less than 24 hours before the scheduled start of the Contest and the Applicant did not hold the permit.

33. Neither party, correctly in my opinion, claims that any of s 77(1)(a) to (h) or (j) nor that any other sub-section of s 77 nor any of s 78 are relevant to these proceedings.

Interested person

Claims by the Authority

34. In RS1 the Authority submitted:

7.   Section 77 of the [CS Act] outlines the circumstances in which the Civil and Administrative Tribunal ('Tribunal') can undertake administrative review of a decision made under the CS Act.

35. In RS2 the Authority referred to s 77(1) and (1)(i) and submitted:

…

9.   There are two grounds on which the Tribunal lacks administrative review jurisdiction:

(a) the Applicant (in the originating proceedings) does not have standing in accordance with s 77(1)(i); and

(b) given the timing of the decision made, s 77(1)(i) does not enliven the Tribunal's jurisdiction.

10. With respect to the Applicant's standing:

(a) the proper construction of s 77(1)(i) only permits a promoter that has been issued a permit under the CS Act to apply for administrative review;

(b) such construction is supported by the phase "in respect of a permit held by the person" (emphasis added) in s 77(1)(i);

(c) as the Permit was issued to a Mr Paul Nasari only he, and not the Applicant, could make an application for administrative review under s 77(1)(i) and

(d) the Applicant, therefore, can not be considered an interested person for the purposes of s(4)(1) of the Administrative Decisions Review Act 1997 ('ADR Act').

11. With respect to the timing of the decision made:

(a) s 77(1)(i) can only apply where the decision, which is the subject of the application for administrative review, is made more than 24 hours before the scheduled start of the combat sport contest concerned;

(b)   The Permit issued by the Authority (see paragraph 3 above) stated a start time of 6:00pm on 22 March 2019;

(c)   The decision of the Authority to impose a condition on the Permit was made at approximately 4:30pm on 22 March 2019 (see paragraph 7(b) above); and

(d)    The decision, to impose a condition on the Permit, was made less than 24 hours before the scheduled start of the combat sport contest.

12. As the requirements of s 77(1)(i) of the CS Act are not met the Tribunal does not have administrative review jurisdiction in accordance with s 9(2) of the ADR Act and s 30(1) of the [CAT Act].

13. No other provision of the CS Act, ADR Act or CAT Act establish jurisdiction for the Tribunal in respect of the decision made or the Permit granted.

Claims by Father Smith

36. Father Smith made submissions, including the following in AS, “in specific answer to the issues raised by “the Authority”:

1. A. In relation to the assertion that the Applicant is not an interested person; the Applicant notes that the legislation is not helpful. The term is not defined by [the CS Act].

2. B. It is submitted that the Applicant must be an interested person given the ordinary meaning of the term..

Further Consideration

37. Father Smith relies on what he described as “the ordinary meaning” of the term “interested person” and claims he is an interested person. If there was no relevant legislation, Father Smith may well have an arguable case.

38. With respect, Father Smith is correct when he submits the term “interested person” is not defined by the CS Act. However, as noted above, s 77(1)(i) provides that applications for review by the Tribunal are to be made under the ADR Act and the Authority relevantly referred to the definition of interested person under s 4 of the ADR Act. That section provides:

"interested person" means a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision.

39. As the Authority correctly submitted, s 77(1)(i) provides that a person who is the holder of a permit may apply to the Tribunal for an administrative review of a decision under s 42 or 44 of the CS Act.

40. As there is no relevant enabling legislation to extend the definition of ‘interested person’, I find Father Smith is not an interested person for the purpose of his Application to the Tribunal.

41. In RS2 the Authority also relied on ss 9(2) of the ADR Act and 30(1) of the CAT Act. Father Smith made no reference to these sections, which do not support his argument. Having regard to my findings, any detailed consideration of the sections would be otiose to these Reasons.

Explanatory notes to Combat Sports Bill 2013

42. The Explanatory notes (EN) to the Combat Sports Bill 2013 (NSW) include:

…

Clause 42 enables the Authority to impose conditions on a permit to hold a combat sport contest and to revoke or vary any such condition. The regulations may also prescribe conditions of permits.

…

Clause 44 enables the Authority to revoke a permit at any time before the combat sport contest is held but allows a permit to be revoked within 24 hours before the contest only if the Authority is satisfied that special circumstances exist warranting that action.

43. Clause 42 of the EN is focussed on conditions of permits and s 42 is headed “Conditions of permit”. The clause relevantly describes the power of the Authority to impose, revoke or vary conditions of permits to hold combat sports contests, at any time before the contests are held.

44. Section 42(1) enables the Authority, to impose conditions on permits whether when granting them or at any time before the relevant contest. Section 42(3) enables the Authority to revoke or vary a condition of a permit at any time.

45. Clause 44 of the EN focuses on revocation of permits to hold combat sports contests as such, rather than focussing on conditions. The clause relevantly describes the Authority’s revocation power and limits any revocation occurring within 24 hours before the contest to situations where the Authority is satisfied that special circumstances exist which warrant the exercise of the power. The term “special circumstances” is not defined. Sections 44(1) and (2) are consistent with the clause. In summary s 44 also requires the Authority to notify the Commissioner of Police, s 44(3), and the Minister, s 44(4), of any decision to revoke a permit to hold a combat sport contest.

43. I find there is no dispute that the Determination was made on 22 March 2019 and the Contest was to take place on that date. Accordingly, the Determination the subject of dispute was made less than 24 hours before “the scheduled start of the combat sport contest concerned”.

44. To the extent that the Determination was a decision under s 42 or 44 to impose conditions in respect of a permit, I find that the only person who may have applied to the Tribunal under s 77(1)(i) for administrative review of the Determination was the person who held the relevant permit, namely Mr Paul Nassari. There is no evidence before the Tribunal nor are there any submissions to the effect that any relevant permit was held at any time by Father Smith.

45. Having regard to my above findings, I find that s 77(1)(i) does not empower the Tribunal to review the Determination.

46. Attachment B to RS1 states under the heading “Additional Conditions”

The following condition is imposed on Permit No. Nasari220319 pursuant to section 42(1) of the Combat Sports Act 2013.

The contest between Quin Gura (DOB 19/08/86) and David Smith (DOB

17/02/1962) included on the lodged fight card is not to be held.

50. Attachment C to RS1, headed “Statement of Reasons - Additional Condition on Permit NASAR1220319” includes as "applicable legislation” a reference to s 42(1) and reproduces the sub-section as well as outlining both Background information and Reasons for determination.

51. Father Smith made no reference to s 42 in either the Application or AS.

52. I find that the Determination was made pursuant to s 42.

Relevance of s 44

53. Section 44 deals with revocation of permits by the Authority prior to holding a contest. The relevant permit was for several boxing contests, and was not limited to the Contest. The section does not refer to revocation or variation of conditions attached to a permit nor to the imposition of additional conditions.

54. There is no evidence before the Tribunal that the imposition of the relevant additional condition on the permit involved a revocation of the permit.

55. I find that s 44 is not relevant to the issues before the Tribunal.

Other issues raised by Father Smith

56. Father Smith raised several other issues in the grounds for the Application and in AS. However, I find that I do not need to deal with those issues in order to make relevant findings.

Decision

57. Having regard to my above findings, the correct and preferable decisions on the material before me are that the Tribunal may deal with the relevant issues without holding a public hearing and the Tribunal has no jurisdiction to review the Determination.

Order

1. The proceedings be dealt with on the papers without a hearing.

2. Father Smith’s application to the Tribunal is dismissed for lack of jurisdiction.

**********

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: 21 February 2020