Chetcuti v Secretary, Boxing and Wrestling Authority of New South Wales [2001] NSWADT 109

CITATION: Chetcuti v Secretary, Boxing and Wrestling Authority of New South Wales [2001] NSWADT 109 DIVISION: General Division APPLICANT PARTIES: Frank Chetcuti RESPONDENT Secretary, Boxing and Wrestling Authority of New South Wales FILE NUMBER: 013068 HEARING DATES: 21/05/2001 SUBMISSIONS CLOSED: 05/21/2001 DATE OF DECISION: 05/21/2001

BEFORE: Rice S - Judicial Member APPLICATION: boxer - cancellation of registration - Boxing & Wrestling Control Act - boxer - cancellation of registration MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Boxing and Wrestling Control Act 1986 CASES CITED: Minister for Disability Services v People with Disabilities (NSW) Inc [2001] NSWADT AP 7 APPLICANT REPRESENTATION: In person RESPONDENT I Brown, solicitor ORDERS: 1 I affirm the decision of the Boxing Wrestling Control Authority to cancel the registration of Mr Frank Chetcuti as a boxer for the year 2000; 2 I make no order as to costs.

Ex Tempore 1 The background facts to this matter are, briefly, as follows. It was some twelve years since Mr Chetcuti last boxed when he fought on 20 October 2000. He had in 1987 been boxing at around 61 or 62 kilos. He boxed at 73 kilos on 20 October. He had in 1997 lost three decisions on points. On 20 October he was adjudged by the referee to have been knocked down three times in the first round and was, by the rules of the competition, therefore deemed to have lost the fight by a knockout. 2 He was subjected to a mandatory medical suspension, which I understand would have been under usual provisions twenty eight days, but was in fact extended by the doctor to approximately thirty eight days, until 30 November. 3 I am now going to give what I think is necessarily legal background to the decision I have made by looking at the Act. 4 The Administrative Decisions Tribunal's jurisdiction is triggered, by section 38 of its Act, by the conferral of jurisdiction on it by another enactment, in this case the Boxing and Wrestling Control Act ('BWC Act'), section 28 of which says that: "A decision made under section 11(2) to cancel a registration or a decision made under section 11(4) to cancel a registration is a decision that can be appealed to this Tribunal. 5 That is what Mr Chetcuti has done. 6 It is necessary, however, to look for the reviewable decision. The Boxing Authority Of New South Wales issued notice to show cause under section 11(1) of the BWC Act, on 16 November 2000. That being the case, the way the Act works we should be able to find a decision made under section 11(2), after the show cause process. I do not find that decision in clear terms. 7 The show cause letter of 16 November 2000 refers to the prospect of cancellation or suspension, and the Authority's letter to Mr Chetcuti of 20 December refers to show cause with a prospect of cancellation, but in fact advised, it would appear, of a decision to refuse Mr Chetcuti's re-registration. 8 It is agreed that there was no application for re-registration. No decision therefore can have been made to refuse re-registration as an application for registration is necessary, under sections 8 and 9 of the BWC Act. 9 Mr Chetcuti certainly understood that letter of 20 December as advising him of cancellation of his registration, and I understand that the Authority intended to cancel the registration. 10 Earlier this year the Appeal Panel of this Tribunal in a matter of Minister for Disability Services v People with Disabilities (NSW) Inc [2001] NSWADT AP 7 commented on the appropriateness of the Tribunal seeking to identify a reviewable decision when a decision was clearly made but the applicant has difficulty identifying it. I think this is such a case. 11 I take it, and the respondent Authority concedes, that the reviewable decision is the decision to cancel Mr Chetcuti's registration for the balance of the year 2000. That decision was made on 19 December and advised Mr Chetcuti on 20 December. 12 The decision was subsequently reviewed, and the outcome of the review was advised to Mr Chetcuti on 6 February 2001 He, understandably, mistakenly identifies that decision of 6 February as the reviewable decision. 13 It is the decision of 19 December to cancel his registration which is the reviewable decision. 14 While it may seem a little pointless to conduct a merits review now of a decision to cancel a registration which was current only until 31 December 2000, this now being May 200l, it is Mr Chetcuti's right to have the merits of that decision reviewed. The problem arises from the fact that registration under the BWC Act is annual, and when a decision to cancel registration is made so close to the end of the year it is not going to be possible for anybody to look at it until the year has passed. 15 It is tempting, and it was clearly tempting to the Authority, to see a nexus between a decision to cancel registration for the balance of one year, and a decision to refuse registration for the following year. That is not a connection can properly be made, and I will come back to that. 16 To the extent, however, the decision to cancel in one year bears on the Authority's decision to register in another year, that, if nothing else, makes it worth pursuing the merits of the decision Mr Chetcuti has put in issue, quite apart from his entitlement to a merits review. 17 Procedurally I note the following. In section 48(1)(b) of the Administrative Decisions Tribunal Act the advice to the applicant of a decision must also advise of the right of review. I note that the letter to Mr Chetcuti of 20 December did not advise of the right of review. I make that point for the purposes of future management of such matters. I note, however, that section 48(3) provides that the failure to advise of the right of review does not invalidate the decision. 18 In any event, Mr Chetcuti effectively sought review, on his own motion, by his letter of 3 January 2001. That letter was treated as an application for review by the Authority, and in their letter of 13 February they advised that at a meeting of 6 February they had reviewed their previous decision and affirmed it. The Authority then did comply with section 63(6)(c) of the Administrative Decisions Tribunal Act, which obliges them to advise Mr Chetcuti of his right of review to this Tribunal. 19 However, that letter of 13 February did not comply with section 53(6)(b), which obliged them also to give a Statement of Reasons for their decision. That Statement of Reasons was subsequently provided on 8 May 2001. I make that observation again to assist in the further management of these issues by the Authority. 20 The question for the Tribunal, therefore, is 'what is the correct and preferable decision as to the cancellation of Mr Chetcuti's registration for the year 2000?'. I am aware now, from the conduct of these proceedings and the material filed, that the concern that the Authority had, prompting it to require Mr Chetcuti to show cause, were the issues of the health or safety of Mr Chetcuti. I note that those concerns are not apparent from the show cause letter that was sent to Mr Chetcuti on 16 November 2000, or in fact from any correspondence that Mr Chetcuti received that I have seen. 21 That is understandable in as much as it is not even apparent to me in the BWC Act that any notice of show cause requires a registered boxer to show cause against any concerns or criteria. Section 11(1) simply says that: "the Authority may require a boxer to show cause why his registration as a boxer of a prescribed class should not be cancelled or suspended" 22 But the provision does not say on what basis any concern as to show cause might have arisen. I find that odd, and I simply note a concern which may arise in the future as to whether or not a registered boxer has been accorded procedural fairness in having to respond to a requirement to show cause, without perhaps knowing what the concerns are that have prompted the Authority to issue the notice. 23 By inference, perhaps, by going back to the provision in the BWC Act, the issue is one of 'fitness for boxing of the prescribed class'. Section 8 says: 8 (1) A 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. (2) An application under subsection (1) shall be: (a) in or to the effect of the prescribed form; and (b) accompanied by: (i) a certificate of fitness for boxing of the class in respect of which registration is sought, being a certificate in or to the effect of the prescribed form which has been given by a medical practitioner not more than 7 days before the date on which the application is made; and (ii) the prescribed fee. 24 There is however, it would appear from the evidence I have heard, a difference between 'fitness for boxing' in section 8, and the concept of the health or safety of the boxer. I understand it to be acknowledged on behalf of the Authority that a man may present as medically 'fit' and therefore eligible for section 8, but it might nevertheless perhaps not in the interests of the man's health or safety to box. 25 It is difficult to see, either in the wording or on the evidence, a real connection between the section 8 criterion for registration, which is fitness for boxing, and the concept of health or safety of the boxer, which is a basis for subsequently cancelling, suspending, or otherwise dealing with registration. 26 I understand from the manner in which this matter has proceeded that the Authority viewed the health or safety of Mr Chetcuti as the basis for him having to show cause. Mr Chetcuti too seems to have proceeded on that basis, having provided medical evidence and attempted to make out a case for his own health and safety. That being so I then look at the criteria of health or safety. 27 Another point of construction I make is that the only reference to the concept of health or safety is in section 11(4), which is when the Authority might bypass the s11(1) 'show cause' procedure, and simply cancel registration. I have already commented how the 'show cause' procedure has no apparent criteria against which a boxer is to show cause. Perhaps s11(1) is to be read with 11(4), and that the whole of section 11 has to do with, possibly among other things, the boxer's health or safety. 28 It may be that something turns on the fact that the phrase in s11(4) is "health or safety", not "health and safety". If it was "health and safety", it might be appropriate to read the two words as conveying a single idea. But it is not possible to read the phrase "health or safety" as being two words conveying one idea, they have to be read separately. In future regard might be had when acting under s11 to the fact that the Act seems to be talking about health on the one hand, or safety on the other. 29 I have taken account of the expert lay views – that is to say non-medical views – of Mr Hunter and Mr Moreland, from whom I heard personally and whom Mr Chetcuti had the opportunity of cross-examining. I have as well taken account of written statements by Mr Granger and Mr McDougall, subject to certain parts of their statements which, on Mr Chetcuti's application, were omitted. And I have taken account of Mr Chetcuti's own account of the circumstances of his having fought on 20 October. 30 In my view the correct and preferable decision was to deal in some way with Mr Chetcuti's registration, in light of health concerns. In fact Mr Chetcuti says that circumstances put him in a position of wanting to fight as a matter of urgency, and he concedes that he perhaps should not have fought at the time, and that he was not himself in full health at the time that he fought. 31 Precisely what should have been done by the Authority as a result of its clear health concerns coming out of the 20 October fight it is difficult to say. If time had not passed I might have remitted the matter to the Authority to reconsider perhaps suspending the registration, with a condition imposed on it addressed to Mr Chetcuti's health, as his condition was one that could pass. However, the Authority had concerns not merely about Mr Chetcuti's health, that is to say his weight and his conceded drop in strength; it also had concern also about Mr Chetcuti's skills and ability to defend himself, and I would understand that to be a reference to his 'safety'. 32 Mr Chetcuti insists that he does have the skills to defend himself, and he attributes his performance on the day to his weight loss and illness. 33 Taking account of what I have heard, in my view the Authority properly had concerns about his Mr Chetcuti's safety. In the circumstances, combining the health concerns and the safety concerns, the correct and preferable decision was to have cancelled the permit, as they did. 34 I therefore affirm the decision that was made to cancel Mr Chetcuti's registration for the year 2000, on the basis that the Authority held concerns both for the health of Mr Chetcuti and for his safety, having regard to his physical condition, and his apparent skills level, noting as Mr Moreland did the period during which he had been not boxing, his fighting record, and the skills he had displayed on previous occasions. 35 That is formally the end of any merits review. I make the following comments about registration because in this matter the concept of re-registration appears to have merged with the concept of cancellation. Both Mr Chetcuti and the Authority may well be dealing further with this matter, although I do not know. 36 Mr Chetcuti has said that he is very concerned that he has been prejudged, and in saying that he could only be referring to the notice he received of the Authority's intention not to reregister him in 2001. And it is because of his perception that he is being prejudged, and the confusion between re-registration and cancellation that I make the following observations. 37 I do not see in the Boxing and Wrestling Control Act that the health or safety of the boxer is a concern in registering a boxer. I am surprised at that, but it is clear to me on the wording that a man can register under section 8, and therefore be eligible to fight, without any regard to being had to their skills or ability as a boxer. 38 An applicant needs to be male and above the age of 18 (s8(1)). They need to complete a prescribed form, and to provide "a certificate of fitness for boxing" (s8(2)). They need too to be "a fit and proper person to be registered as a boxer of the prescribed class" (s 9(1)(a)), although I understand that no classes have been prescribed. 39 The prescribed form contains certain personal mechanical details regarding the applicant, but nothing relating to boxing ability. 40 The certificate of fitness asks the medical practitioner completing it to say that the person is "fit to participate in boxing" and does give a fairly extensive indication of what the Authority is looking for in that judgment being made. However, all it comes down to is a local GP ticking a box that says, "fit to participate in boxing". There is no inquiry on the part of the Authority as to the medical practitioner's knowledge of boxing and the risks of boxing, or the capacity of the medical practitioner to say that the person was fit to box. 41 Under s8, a boxer's previous history is irrelevant to registration. Similarly a boxer's skills are irrelevant to registration. Any indicators of the health of the boxer, or of risk to the boxer's safety, other than those in the certificate of fitness, are irrelevant to the Authority's consideration of whether or not to register a boxer. 42 Relevantly to Mr Chetcuti's matter, I note that the certificate of fitness says that excessive weight and wasting does not necessarily exclude participation in boxing. 43 The Authority in Mr Chetcuti's case seemed to connect the cancellation of Mr Chetcuti's registration for the year 2000 with his anticipated application for registration in 2001. As I made clear, I do not think there can be any such nexus. Compliance with section 8 is fairly straightforward. It would appear that it is only after registration, when a boxer engages in a fight – which they are free to do once registered – that the health and safety concerns under section 11 might arise. The only real opportunity for any assessment to be made of the boxer's health, or the risk to their safety, would be when they have put themselves in a position that raises those concerns, which is in a bout they have undertaken at some stage after registration. 44 I am not making a decision as to any future registration, and nothing I am saying can bind the Tribunal in the future as to how it may view a decision made as to future registration, but I make these comments in light of the apparent confusion in this matter of the two processes of cancelling and re-registration. 45 As a formal matter I affirm the decision of the Boxing Wresting Control Authority to cancel the registration of Mr Frank Chetcuti as a boxer for the year 2000. 46 I make no order as to costs.