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Christopher Cox v KartSport New Zealand


Appeal against decision of national sporting organisation (KartSport) that junior kart driver breached rules during race by overtaking after a yellow flag was shown – field of play – Tribunal cannot question in these circumstances whether yellow flag should have been shown or not – however this did not dispose of issue of whether was an overtaking in breach of rules – evidence accepted that appellant passed two other karts as result of them sliding on damp track and drifting to outside of track – appellant gave evidence that he took avoiding action to prevent a potential accident and found himself in front rather than deliberately overtaking in breach of rules – Tribunal concluded this was not an “overtaking” within meaning of the rules – it was for KartSport to establish that there had been a breach of the rules and establish all elements of the breach – one of these elements was that there had been an “overtaking” within the meaning of the rules – KartSport did not establish that before the Tribunal – Tribunal considered KartSport did not properly address or consider this aspect at KartSport appeal hearing which was a breach of natural justice – Tribunal has the power to remedy procedural breaches in earlier hearings into the same matter but here KartSport was unable to establish before the Tribunal one of the required elements, namely that there had been an “overtaking” – appellant acknowledged yellow flag and, in order for there to be a breach of the rules, there had to be a finding that having done so he ignored it – this was not adequately determined in the KartSport processes – Tribunal upheld appeal, quashed finding of breach, overturned fine and ordered KartSport pay appellant half of his appeal filing fees.

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