By an undated Notice of Appeal Geoff Emery sought to Appeal to this Court a decision of the Motorsport Australia Appeal Tribunal on 16 December 2021. 

The Notice was received by the Secretary of the Court on 23 December 2021.

The Secretary of the Court forwarded to me the following material provided by Motorsport Australia:

1. Summary Monetary penalties and Appeal Documents 
2. Motorsport Australia 2021 Circuit Race Standing regulations
3. Dropbox link to vision of an incident submitted and viewed at a Stewards’ hearing
4. Motorsport Australia Appeal Tribunal Decision
5. Appeal Tribunal Terms of Reference
6. Notice of Intention to Appeal Stewards’ decision
7. Document entitled Appeal Proper setting out submissions on behalf of Geoff Emery
8. Motorsport Australia dossier containing submissions on behalf of the Respondent to the Appeal
9. Documents related to Stewards hearing and Decision

The Judicial Appendix to the 2021 Motorsport Australia Manual sets out the functions of the Australian Motorsport Appeal Court (AMSAC)
Article 6.2 of that Appendix provides in part as follows:
“6.2 AMSAC will be the final court of appeal subject to leave to appeal being granted by the Chair
6.2.1 after a decision of a Court of the First Instance and after any subsequent appeal to an Appeal Tribunal.”

The Appeal by Geoff Emery therefore requires the leave of the Chair to proceed.
Article 8.1 of the Judicial Appendix provides
“8.1 If leave to Appeal is sought the Secretary of AMSAC will forward a notification of the Chair’s decision to accept or reject the appeal to the appellant, each other party to the appeal and Motorsport Australia within 21 days of request for leave to appeal unless time is extended by the Chair.”

On 11 January 2022 I advised the secretary of the Court of an extension of time to consider this matter until 31 January 2022.

Background
Geoff Emery was a competitor at the Repco Bathurst 1000 Porsche Carrera Cup Race 4 on 5 December 2021.

During the course of the race Car 48, driven by Geoff Emery, made contact with Car 13. As a result of the incident an Infringement Notice was issued by the Race Director alleging that the driver of Car 48 breached Circuit Race Standing Regulation 7.4(e)(e )(i) committing the offence of careless driving and recommending to the Stewards a time penalty of 5 seconds be added to Car 48’s time for the race.

Geoff Emery elected not to admit to the breach of the Rule alleged. A Stewards’ hearing was convened and the Stewards imposed a 5 second post race time penalty on Car 48.

(A copy of the Stewards’ decision is attached.)

Immediately following the Stewards’ decision Geoff Emery gave notice of his intention to Appeal on the grounds that “the decision was against the weight of evidence” and therefore he should not be penalised.

A Motorsport Australia Appeal Tribunal was convened on 16 December 2021.

Both Geoff Emery and Motorsport Australia made written submissions and addressed the Tribunal.

It was submitted by Motorsport Australia that the penalty imposed by the Stewards was not appellable.

The Tribunal in its decision recorded what had occurred at the Stewards hearing and then considered the preliminary issue of admissibility of the Appeal and ruled that it was inadmissible and be dismissed.

Notice of Appeal
The Notice of Appeal submitted by Geoff Emery I have taken to be in relation to the decision of the Tribunal as it refers to the Decision on the 16 December 2021.

The grounds of Appeal are specified as follows:

i. the decision was against the weight of evidence
ii there was a denial of natural justice
iii the decision was ultra vires
iv the penalty applied was excessive

The grounds of Appeal have been expanded from the Appeal against the Stewards’ decision.

In Submissions dated 23 December 2021, the Grounds of Appeal are stated as:
a) Stewards’ Hearing did not follow due process and procedures and a denial of natural justice and ultra vires
b) Decision of careless driving without racing room was incorrect and against the weight of evidence
c) Appeal heard on 16 December was dismissed without proper hearing with reference to s9.1 of Circuit Race Standing Regulations which did not follow due process and procedure and a denial of natural justice and ultra vires.
Grounds a) and b) relate to the Stewards’ Hearing as do grounds (i) (ii) and (iv) specified in the Notice of Appeal.

The outcome sought by the Geoff Emery is stated as 
“The decision of the Stewards and DSO be overturned.”

The matter for consideration of the Chair of this Court, pursuant to Article 6.2 of the Judicial Appendix is the decision of the Appeal Tribunal on 16 December.

That decision found the Appeal inadmissible having regard to the Rule 9.1 of the Circuit Race Standing Regulation (CRSR)

The CRSR apply to each Circuit Race Event conducted in Australia.

CRSR Clause 2.1 dealing with entries provides a note advising that an entry for an event forms a contract.

National Competition Rule 113 defines entry
“Entry. A contract between a Competitor and the Organiser concerning the participation of the said Competitor in a Competition.
Competitors are contracted under a set of Rules with which Competitors are required to comply.”

Rule 9.1 of the CRSR provides
“9.1 Imposition of Penalties
(a) A breach of the Rules may result in the imposition of any one or combination of the following penalties by the Stewards.
Paragraph ( iv) of 9.1(a) provides
“(iv) A Time Penalty: Time to be added to race time.”

Rule 9.1(a) further provides “If any of the 9 penalties above are imposed by the Stewards for a breach of the Rules that occurred during any practice, qualifying or race they will not be subject to Appeal.

Further, Rule 10.3(d) provides under the heading Protests and Appeals
“(d) An Appeal may not be made against any decision concerning penalties imposed under CRSR 8.1 (b) or 9.1 (i)(ii)(iii)(iv)(v)(vi)(vii)(viii) or (ix).

Decision of Appeal Tribunal
The Appeal tribunal determined that the Appeal by Geoff Emery was inadmissible having regard to CRSR Rule 9.1(iv).

Accordingly the Appeal was dismissed.

In making such a finding the Tribunal applied the Rules applicable to the Competition.

The decision of the Tribunal makes reference to the Stewards’ hearing and the evidence considered and the penalty imposed.

Geoff Emery in his submissions attached to his application for leave to Appeal to this Court states:
“The task of a judicial body is the administer the rules in a fair and equitable manner. A judicial body must avoid the temptation to apply or interpret the Rules in a technical or
convoluted manner so as to obtain a result which they see as just and fair in sporting terms.

It is not the task of a judicial body to form opinions as to the wisdom or otherwise of a Rule which they may be called upon to apply.”

On the material before me I can determine no basis to suggest that these assertions apply to the Tribunal in this case.

They did not form any opinion as to the wisdom or otherwise of a Rule. The Tribunal simply applied the Rule.

Geoff Emery further urges that this Court should take an opportunity to review the conduct of the Stewards and the decision reached.

He submits “It is important to note the driver does not appeal the penalty handed down but the process undertaken to arrive at the penalty.”

Decision
The decision of the Appeal Tribunal was to dismiss the Appeal as it was inadmissible because the penalty imposed by the Stewards was unappellable according to the Rules ( set out above.)

In response to the 4 grounds of Appeal set out in the Notice I have determined as follows:

1. The decision was against the weight of evidence.
The Tribunal did not consider evidence but determined on a preliminary issue that the Appeal was inadmissible pursuant to the Rules.

2. There was a denial of natural justice.
The Tribunal applied the Rules governing the competition.

3. The decision was ultra vires.
The Tribunal did not act beyond its legal power or authority. It applied the Rules.

4. The Penalty applied was excessive.
In accordance with the Rules the Penalty is not appellable.

Order
Leave to Appeal is denied.

In accordance with Article 8.2 of the Judicial Appendix to the 2021 Motorsport Australia manual I direct that 50% of the Appeal fee be refunded.

David A Miles AM
Chairman
30/1/2022