Fisher v Combat Sports Authority of NSW and Anor

NCAT Administrative and Equal Opportunity|2022-05-31

Solicitors: Barron Law (Applicant) Crown Solicitor (First and Second Respondent) File Number(s): 2021/00320581

Background

On 25 October 2021, the Combat Sports Authority (the First Respondent) decided, under section 13(2)(a) of the Combat Sports Act 2013 (the "Act"), to refuse to register the Applicant as a combatant in the amateur boxing registration class.
The First Respondent's reason for the rejection as recorded in its Notice of Decision was that it was not satisfied of the matters specified in s 13(1) and specifically that the Applicant was a "fit and proper person" as required by s13(1)(b) (the "Reviewable Decision").
On 10 November 2021 the Applicant made application to the Tribunal for a review of the Reviewable Decision pursuant to s 77(1)(b) of the Act. That section provides that a person may apply to this Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (the "ADR Act") of a decision under s 13 of the Act to refuse to register the person as a combatant of a specified registration class. Additionally, and as discussed below, as the Reviewable Decision was a decision based upon a criminal information disclosure pursuant to s 78(1) of the Act, s 53 of the ADR Act pertaining to internal reviews does not apply: s78(6) of the Act. As such the Tribunal has jurisdiction to review the original decision (as opposed to an internal review of that original decision).

Tribunal review

The Tribunal has jurisdiction to hear and determine this application by reason of s77(1)(b) of the Act and s9(1) of the ADR Act. Pursuant to s63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the Civil and Administrative Tribunal Act 2013.

The Reviewable Decision

The Reviewable Decision is brief and is four short paragraphs long. After providing a summary of s 13(1) of the Act it states: "Section 13(2)(a) of the Act provides the Authority must refuse to register an applicant as a combatant of a specified registration class if it is not satisfied of the matters specified in section 13(1) of the Act. The Authority has considered your application, and the Authority is not satisfied that you are a fit and proper person to be registered under the Act (as required by section 13(1)(b) of the Act) in the Combatant Amateur Boxing registration class due to your criminal history. As a consequence, the Authority must refuse your application under section 13(2)(e) of the Act"
As clarified by Counsel for the First and Second Respondents', the reasons were sparse in consideration of s 95(2) of the Act which provides that the First Respondent is not, under this or any other Act or law, required to give any reasons for determining a matter or taking any other action under this Act if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information provided by the Commissioner of Police or any other police officer. As the First Respondent had relied upon a criminal investigation report to make the Reviewable Decision, the reasons were given so as not to disclose that fact or the contents of that report.
While that position was taken by the Authority for the purposes of making the Reviewable Decision, a copy of the criminal investigation report was disclosed to the Applicant by way of service for the purposes of these proceedings and was not the subject of any application to maintain confidentiality. Consistent with this position, the Second Respondent expressly gave approval for the purposes of ss 78(1)(a) and (b) of the Act by way of consent orders dated 24 March 2022. Section 78 provides: (1) In determining an application for an administrative review of a decision that was made on the ground of a criminal information disclosure, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. [Emphasis added]
Accordingly: 1. this Tribunal may disclose the existence or content of the criminal intelligence report relied upon by the First Respondent; and 2. the hearing of this application was open to the public and in the presence of the Applicant and his representative.

The Facts

From 2012 to 2016, the Applicant was registered as an amateur boxer. He achieved significant success in the sport having been awarded a State title in his weight class and participated in many bouts in and around New South Wales.
It is common ground that on 17 March 2017, upon pleas of guilty, his Honour Judge Haesler SC of the NSW District Court sentenced the Applicant to a total effective sentence of eight years and five months, with a non-parole period of five years, for the following offences: 1. Count 1: Common assault (Crimes Act 1900, s 61; max 2 years); 2. Count 2: Unlawful detention with intent to commit the offence of intimidation (Crimes Act 1900, s 86; max 14 years); 3. Count 3: Sexual intercourse without consent, aggravated by the reckless infliction of actual bodily harm (Crimes Act 1900, s 61J; max 20 years); and 4. Count 4: Sexual intercourse without consent (Crimes Act 1900, s 61I; max 14 years).
In imposing the sentence for Count 3, his Honour considered a further offence of sexual intercourse without consent on a Form 1. See R v Fisher [2017] NSWDC 56.
The offences were committed in June 2015 against his then girlfriend who was 20 years of age at the time.
The Applicant's sentence commenced on 21 July 2015. The non-parole period expired on 20 July 2020 and the Applicant was released on parole on 1 October 2020. His sentence will not expire until 20 December 2023.
Prior to this, the Applicant had a negligible criminal record involving one conviction for low range PCA (being driving a motor vehicle on a public road with a blood alcohol concentration from 0.05 to 0.079).
Since being released from custody, after being granted parole, he has exhibited good behaviour. He has: 1. Actively participated in a domestic violence course which consisted of ten sessions with Dr Roger Blake, a psychologist with the Australian Psychology Board and member of the Forensic College of the Australian Psychological Society ("Dr Blake"); 2. Sought and undergone treatment from Dr Roger Blake, a psychologist to support him in his mental health; 3. Obtained full-time employment with a fencing contractor with whom he has been employed for over a year. 4. Saved sufficient finances to purchase a vehicle and to seek shared rental accommodation with friends; 5. Joined a bible study group which meets weekly as described by Senior Pastor Tim Flint of the Wagga Evangelical Church ("Senior Pastor Flint"); 6. Made a contribution to his local community by his membership of: 1. Wagga Evangelical Church; 2. Wagga Touch Association; 3. The Club Lime Gym; 4. Adapt Muay Thai Mixed Martial Arts Academy; and 5. Muay Thai.
Additionally, despite his inability to compete given the Reviewable Decision, the Applicant has continued training with his focus being that he may be able to compete in the future.
Dr Walker, who was formerly the Senior Forensic Psychologist at Junee Correctional Centre and experienced in sex offender assessment describes the Applicant as follows: "I have seen many people as part of their post release from prison. In my opinion, Mr Fisher is one of the few people who seem truly committed to being a positive citizen in Wagga in terms of rehabilitation. He is not a risk of further violence and his progress since release shows me that he is able to be a part of society in a pro-social way. It is my hope that he can re-join a sport he loves and be given a chance in a sport that has helped so many people who have been in trouble with the law in the past or come from disadvantage. I am entirely confident that he would be a great ambassador for local boxing."
Mr Gavin Comtesse, who is the Applicant's Community Corrections Officer and undertake supervision of the Applicant during his parole period. Mr Comtesse states: "From the outset I have found the [Applicant] to be nothing short of compliant and engaged seamlessly in all interventions he has been referred to. [The Applicant] has completed the required sessions allocated addressing his offending behaviour. [The Applicant] has also complied with no resistance to scheduling and subsequently has had this removed from his order. [The Applicant] is currently employed full-time. This is a notable achievement as it is very difficult for offenders to achieve such a goal. [The Applicant] since gaining employment has engaged in other pro social activities such as regular contact with his church group and training with a local boxing gym. [The Applicant] has made comment that he is looking to compete on the boxing circuit again and as his community corrections officer this is supported. [The Applicant] immersing himself in pro social environments and activities will increase his likelihood of successfully completing his order and not returning to the justice system. I support [the Applicant's] application to register as a competitive boxing athlete and I hope this letter of support assists you in making this determination. [The Applicant] since commencing his order has displayed a pro social lifestyle and has folded back into the normal lawful living expectations of society well."
Senior Pastor Flint describes the Applicant's articulating "genuine remorse and repentance for the past actions" and further described the Applicant's character in the following terms - "gentle nature", "selflessness" and "disciplined work ethic".
Similar character assessments were provided by: 1. Ms Lynda Tubana being the mother of a friend of the Applicant, 2. Mr Joshua Nosworthy, being one of the Applicant's closest friends; and 3. Mr Daniel Khan, being the Applicant's martial arts and boxing coach.

Legislation

Section 13 of the Act states: "13 Determination of application (1) The Authority may register an applicant as a combatant of a specified registration class if the Authority is satisfied of the following: (a) that the application is made in accordance with this Division and any application fee has been paid, (b) that the applicant is a fit and proper person to be registered as a combatant of that class, (c) that the applicant is not less than the minimum age prescribed by this Act, the regulations or the rules as the minimum age required for registration as a combatant of that class, (d) if the applicant is subject to a registration pre-condition, that the applicant has complied with the registration pre-condition, (e) as to any other matter prescribed by the regulations for the purposes of this subsection. (2) The Authority must refuse to register an applicant as a combatant of a specified registration class if: (a) it is not satisfied of the matters specified in subsection (1), or (b) the applicant is a controlled member of a declared organisation under the Crimes (Criminal Organisations Control) Act 2012, or Note - Controlled members are prohibited from applying for registration - see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (c) it is of the opinion that it is not in the interests of the health or safety of the person to grant the registration, or (d) in any other circumstances prescribed by the regulations for the purposes of this section. (3) Subsection (2) does not limit the grounds on which the Authority may refuse to register an applicant as a combatant of a specified registration class. (4) The Authority is not required to determine an application for registration if the Authority is not satisfied as to the identity of the applicant for registration or if the applicant fails, without reasonable excuse, to provide any relevant information requested by the Authority." [Emphasis added]
Accordingly, where the First Respondent is not satisfied that an applicant for a licence if a fit and proper person, the First Respondent must refuse registration of that applicant.

Materials before the Tribunal

In addition to the oral submissions made on behalf of both parties, in support of his application, the Applicant relies upon: 1. The Applicant's administrative review application form; 2. Written submissions; and 3. Letters of reference from: 1. Dr Blake 2. Mr Gavin Comtesse, who is the Applicant's Community Corrections Officer 3. Senior Pastor Flint 4. Ms Lynda Tubana 5. Mr Joshua Nosworthy; and 6. Mr Daniel Khan
The Respondent relies upon: 1. Written submissions; 2. Respondent's tender bundle including facts sheets and Local Court Documents, District Court Documents, DPPs Crown Case Statement and Brief of Evidence and documents related to the proposed sentence appeal 3. Section 58 bundle of documents including, but not limited to the First Respondent's Policy on "Fit and Proper Person" which describes itself as outlining "the fit and proper person framework" to be applied (the "Policy"); 4. Documents responding to a Summons served on Wollongong District Court; 5. A copy of the Combatants Code of Conduct.
By way of submission, the Applicant contended that the evidence supported that the Applicant was a fit and proper person because: 1. Prior to the events leading to his conviction, the Applicant had a negligible criminal record; 2. The offence occurred more than five years ago; 3. The contemporaneous evidence, based upon the Applicant's presence in the community for over 16 months, shows a young man of good behaviour who has been successfully rehabilitated and who has a pro-social attitude; and 4. Additionally, the Applicant's legal representative drew the Tribunals' attention to the First Respondent's Policy and the fact that the risk level assessment for a combatant (as opposed to other roles within combat sports) is "low" which, it was contended, the Applicant clearly fell within.
The Applicant's legal representative put particular emphasis on the evidence provided by the Applicant's Community Corrections Officer and the rarity of a corrections officer providing such a reference.
In short, the Applicant's legal representative contended that all of the evidence must be considered so as to determine whether the Applicant is "fit and proper" as at the time the application for registration is made. While the Applicant was committed of a serious crime, the contemporaneous evidence as to the Applicant's character must be preferred which supports that the Applicant is fit and proper.
Conversely, the First Respondent submitted that by reason of the serious violent and sexual offending underlying the Applicant's criminal convictions, for which he remains on parole, the Tribunal should not be satisfied that the Applicant is a fit and proper person to be registered as an amateur boxing combatant. In this respect, the First Respondent contended that in order to give "fit and proper person" meaning, one must have regard to the nature of combat sports and the objects of the Act in regulating combat sports and promoting the combat sports industry. As such, as contended by the First Respondent: 1. There was a meaningful connection between the Applicant's prior success in combat sports and the offence he committed in that like combat sports which involve violence (albeit regulated and consensual), the crimes committed by the Applicant also involved violence; 2. The registration of the Applicant would have a detrimental impact on public relations for the First Respondent in that it would bring the First Respondent "into disrepute" as others may perceive the industry as condoning the crimes committed by the Applicant. Additionally, it would be contrary to the express goal of the Act in s 3(d) which is to promote the development of the combat sports industry; 3. Registration of the Applicant would be contrary to the expectation of the community given that the Applicant is still on parole; and 4. In respect of the efforts of the Applicant to re-integrate himself into the community, the First Respondent draws the Tribunal's attention that it is not the case that all of the references make express reference to the Applicant's offending or the details of the offence and nor should the rehabilitation qualities of boxing for the Applicant feature in determining the "fit and proper" test.

Consideration

There is no definition of "fit and proper" in the Act, and there is no case law considering the meaning of "fit and proper" in the context of the combat sports regulatory regime including in relation to the earlier versions of the Combat Sports Act.
Nonetheless, the phrase "fit and proper person" is a common phrase in regulatory schemes. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ explained that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." [Emphasis added]
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184. Public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37]. The test for whether a person is fit and proper is guided by similar considerations to those applying to the "public interest": Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 at [72]-[79]. In this context, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22].
While that is correct, the meaning given to "fit and proper" cannot be so wide so as to be inconsistent with the purpose for which it is serving. As quoted above, its meaning must be guided from the precise activities in which the person is or will be engaged and the ends to be served by those activities. As such, the test is not whether the Applicant is a "fit and proper" person but whether the Applicant is a "fit and proper" person for the purposes of being registered as a combatant in the amateur boxing division taking into account the precise activities that the Applicant would be engaged in and the ends served by being so engaged.
In considering this, and contrary to the submissions of the Applicant, the ends to be served by those activities to both the Applicant and the public at large are relevant to a consideration of the meaning of that phrase. A service that is served by those activities is, inter alia, allowing an individual a safe and regulated place to express physical force. This is not only in the interests of the public at large but with specific respect to the Applicant, the evidence supports that it assists his mental health and continued rehabilitation.
Additionally, the purpose for which the "fit and proper" test seeks to serve with specific reference to the Act is also relevant. According to the Second Reading Speech dated 23 October 2013, the introduction of a stronger "fit and proper" test was primarily for roles that can significantly influence the outcome of boxing contests with a particular concern with respect to promotors, managers and match-makers and any connections they may have with organised crime. The Second Reading Speech included: "The reforms of the bill were developed in response to a review of the current Combat Sports Act, which found that … a stronger fit and proper person assessment process is needed, particularly for roles that can significantly influence the outcome of contests, the industry and the safety of combatants; and that promotors should be accountable for the contests they arrange and hold…. There is no room for organised crime in the combat sports industry or in the gyms where combatants train. Police are being given new powers to work with the Combat Sports Authority to keep criminals out of the sport … The commissioner may determine that a person cannot be registered in those roles on fit and proper person or public interest grounds, and the Combat Sports Authority must, under clause 25(2), enforce that determination." [Emphasis added]
This correlates with the First Respondent's Policy in classifying the level of risk associated with promotors, managers, and match-makers "high" (i.e. they were in positions of power with the capacity to unfairly influence boxing matches and more likely to do so if such individuals had connections to organised crime). Conversely, the risk associated with a combatant in respect of these affairs as recorded in the Policy is "low" (i.e. they were not in positions of power to influence boxing matches in the same manner as promotors, managers, and match-makers). This does not otherwise negate from the discretion of the First Respondent in considering whether an individual is "fit and proper", but I do not accept, as contended by the Respondent that the interpretation of what is "fit and proper" is be determined with reference to public relations considerations. Rather, and to repeat the words of the High Court, it is to be determined by the precise activities in which the person is or will be engaged and the ends to be served by those activities as supported by an analysis of the Second Reading Speech.
Additionally, it must be remembered that the role of the Tribunal is not to consider the crimes that were committed by the Applicant in June 2015 to fashion punishment. That has already occurred, and the Applicant has and continues to serve his sentence. Rather, the role of this Tribunal is to administratively review the decision before it which requires whether the evidence, which includes but is not limited to the events of June 2015, mean the Applicant is not a fit and proper person to be registered as an amateur boxer. As stated in Ayers v Commissioner of Police [2021] NSWCATAD 78 in the context of firearm licensing and with reference to the decision in Ward, "the licensing regime is not about punishment but rather about protecting the public".
Considering the precise activities that the Applicant would be engaged with if registered and able to compete as an amateur boxing, and prior to considering the more contemporaneous evidence, I find that the events occurring in June 2015 and leading to his conviction have at their highest, an indirect connection to the sport of boxing. Conduct which is violent and displays a disrespect for the safety and sanctity of others may, in appropriate circumstances, led to a finding that in the context of boxing, that an individual might disregard the harm minimisation rules and processes and, as such, is a risk to fellow competitors or others in the boxing context. The assaults were an overt act of dominance and violent control, albeit in a domestic context and not in the context of competitive boxing.
However, the events of 2015 are but part of the factual matrix currently before this Tribunal. While past conduct may be a significant guide to future conduct (Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]), the June 2015 events, which occurred more than seven years ago, cannot be considered in isolation to other evidence relevant to this inquiry which occurred prior to the incident and significantly, more recently.
First, and with respect to the risk that the June 2015 conduct may led to a finding that the Applicant might disregard the harm minimisation rules and processes existing in the sport of boxing, there is no evidence that this, in fact, has ever occurred noting that the Applicant was formerly a competitor for a significant period from 2012 to 2016. Additionally, there is contemporaneous evidence that supports the converse. Senior Pastor Flint gives evidence of playing football with the Applicant in a football competition and describes the Applicant as follows: "Despite his above average physical statute and skill on the football field, I have been most impressed by Leroy's genuine concern to include everyone on the team. He regularly displays a kind of selflessness on the field that is rare in someone so sportingly gifted."
The Applicant's martial arts and boxing trainer, Mr Khan gives evidence of the Applicant's maturity, patience and politeness when undertaking boxing and martial arts in a large group.
Secondly, and with respect to the Applicant's character generally, prior to the events leading to the Applicant's conviction, the Applicant had a negligible criminal record involving one conviction for low-range PCA.
Thirdly, since being released from custody, the Applicant has not come to the adverse attention of the police, and rather has been "nothing short of compliant and seamlessly engaged in all interventions" related to his rehabilitation as described by Mr Comtesse, who is the Applicant's Community Corrections Officer.
Lastly, and as recognised by the First Respondent, the Applicant has taken positive steps to re-integrate himself into the community and live a healthy and productive life. In this respect I put particular weight on the evidence of Dr Walker, who was formerly the Senior Forensic Psychologist at Junee Correctional Centre and Mr Comtesse both of whom knew of the Applicant's criminal history stemming from the events of June 2015 given the capacity by which they came to know the Applicant. I further find that due to their respective capacities, their appraisal of the Applicant was objective.
In weighing all of the evidence before me, I find that there is no discernible risk with respect to the Applicant disregarding the harm minimisation rules and processes such that he will become a risk to fellow competitors or others in the boxing context. I further find based upon the available material, the Applicant's offending conduct was an aberration, and out of character.
While I make these findings, the Applicant is currently on parole for his offending and his sentence does not expire until 20 December 2023. In McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183, the Land and Environment Court considered that a person was still under a bond in respect of a serious criminal offence in refusing Mr McEvoy registration as a valuer on the basis that he was not a fit and proper person. Lloyd J stated: "Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex parte Davis, Sakellis). I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character (Sakellis)."
By similar reasoning, the First Respondent submits that an individual's ability to be registered as a combatant and compete in combat sport contests is a privilege, and it would be contrary to the expectations of the community for him to be registered while on parole.
However, there are exceptions to this principle. In the matter of Offner v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 22, the applicant was convicted of the offence of causing grievous bodily harm to person with intent. Like the present circumstances, the harm was occasioned in the context of domestic violence. The applicant was sentenced to 5 years imprisonment with a non-parole period of 2 years and 6 months. After being released on parole, she made application for registration as a real estate salesperson which was refused on the basis that she was not a "fit and proper person". That refusal was set aside by this Tribunal. Senior Tribunal Member Montgomery held as follows: "If there is any discernible risk to the public that would flow from the grant of the certificate to the Applicant because of her character, then the certificate should not be granted. That does not appear to me to be the case in this matter. The question as to the Applicant's fitness and propriety must focus on her fitness and propriety to hold a certificate of registration under the Act. In that enquiry I must consider what it is about her character now that would render her unfit to hold the certificate. In my view, there is nothing that warrants such a conclusion. This view is not altered by the fact that she still has over 12 months remaining of her sentence to be served while on parole. [Emphasis added]
It is without question that the Applicant's offence was a serious offence. However, in my view the circumstances and nature of the offence do not currently have a bearing on his ability to compete with honesty and integrity in amateur boxing given the totality of the evidence before me. Rather, the available material suggests that the Applicant's offending conduct was an aberration, and out of character. It is unlikely to be repeated, particularly given the significant impact that it has had on his life. In my view, it is unlikely that he will engage in improper conduct in his pursuit of competitive amateur boxing and the general community can have confidence that such improper conduct will not occur.
I am satisfied that the Applicant is possessed of sufficient rectitude of character as to permit him to be safely registered as a combatant in the amateur boxing registration class. I am satisfied that he is a fit and proper person to hold a certificate of registration under the Act.

Orders 1. The First Respondent's decision to refuse the Applicant's application to register the Applicant as a combatant in the Amateur Boxing registration class is set aside. 2. The decision is made that the Applicant's application for registration under the Combat Sports Act 2013 (NSW) is granted.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2022

At a glance

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Decision date

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Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)

Cited By (1)