David Sera Successfully Appeals To AMSAC

Victorian Kart racer David Sera finished first at the National Championship for Leopard Light on 8 April 2007, held at Eastern Creek Raceway.

After the final, stewards charged David for ‘failing to respond to a “mechanical defect” flag on two occasions’. The Stewards found David guilty of breaching the Australian Karting Association (AKA) 2007 National Competition Rules 15.16 and 5.01(w).

David appealed this decision to the NSW Appeal Tribunal. This appeal was dismissed on 20 June 2007. David then appealed to the Australian Karting Appeal Court (AKAC) on 29th June, 2007.  The case was adjourned a number of times as no Tribunal Chairperson was available, but it was finally dealt with on 28 May 2008.  On that date the appeal was struck out.

Paul Horvath, solicitor, of www.sportslawyer.com.au, represented David as he proceeded to appeal the decision of AKAC to Australian Motor Sports Appeal Court (AMSAC).

AMSAC were ‘particularly concerned at the inordinate delay between the time of lodgement of the notice to appeal to AKAC and the hearing of that appeal [28 May 2008] (approximately eleven months).’

Before the AMSAC hearing, both parties were required to file written submissions. Four different grounds of appeal were argued on behalf of David as to why his appeal should succeed and why he should be reinstated as the National Champion.

The hearing before AMSAC took place on 22 October 2008.

The first point to be considered was whether Rules 8.38(e), (g), and (f) regarding time limitations for AKAC to hear appeals applied.  Paul Horvath successfully submitted that in accordance with the AKA Rules the appeal to AMSAC should be decided in favour of David as the time limits had not been adhered to by the AKA.  AMSAC agreed that the AKA had not abided by their own Rules and had taken too long to hear David’s appeal case. Consequently AMSAC did not need to deal with the other three arguments put forward on David’s behalf.

In AMSAC’s decision it states that ‘the decision of 28 May 2008 was contrary to the Rules…Accordingly, the appeal to AKAC is [therefore]…decided in favour of [David]. As a consequence of that, the appeal to this Court must succeed as the matter has already been determined by operation of the Rules and has been so determined since the expiration of the sixty days.’ The Court ordered that the findings of the Steward’s hearing and the NSW Appeal Tribunal were null and void.  They declared David the winner of the final of the Leopard Light at the 2007 National Championships, and ordered that he be presented with the winner’s trophy, the No 1 number plate and that his appeal fees be returned to him.

David was not able to obtain an award of costs. Rule 10.04 provides that AMSAC may make a cost order against an unsuccessful applicant but does not provide for the making of a cost order in favour of a successful applicant. As a result, David was unable to recover his legal costs expended in the appeal.

It is acknowledged that the AKA Rules have now been amended including changes to Rules and 8.38 and 15.16.

 

~ Information supplied by George Sera

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