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Essendon versus ASADA: Second directions hearing

Roar Guru
2nd July, 2014
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Roar Guru
2nd July, 2014
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The legal fight between Essendon and ASADA appears to be widening, as the anti-doping authority accused the club and its suspended coach of “enlarging” their case, and the involvement of players in the court action remained unresolved.

The case went to the Federal Court for a second directions hearing on Wednesday. But the way ahead was far from clear as potential new disputes opened up on a number of fronts.

Lawyers for ASADA were “deeply concerned” by the amendments to pleadings filed with the Federal Court this week by Essendon and James Hird.

The amendments implied that the joint investigation conducted by ASADA and the AFL was a deliberate conspiracy designed to overcome the shortfall in each body’s investigative powers, according to Daniel Starr, acting for ASADA.

Such an allegation would place the dispute beyond the orbit of administrative law under which the original application was made.

Mr Starr said this was the latest in a series of “rolling enlargements” to the Essendon case that threatened the viability of the three-day trial scheduled to commence on August 11, 2014.

Of more immediate concern is the reluctance of the 34 players issued with show cause notices to be formally joined as parties to the preceeding. Justice John Middleton said he was disquieted by the possibility that players would not have direct representation at the trial when they would be bound by its outcome.

This coincides with reports that players may be reconsidering the arms-length nature of their involvement in the case.

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David Grace, QC, acting for the players in their limited present standing as “interested third-parties”, indicated there had been a softening of the players’ resistance to the joinder proposal, but said the issue was still unresolved. He did suggest, however, that the players would be prepared to be join the action if there was a guarantee that their identities not be disclosed.

Mr Grace argued that the players’ identities would be protected from disclosure in the event that Essendon succeeded in having the investigation declared illegal. Disclosure now would risk causing unfair and “irreparable” damage to their reputations, he said.

Justice Middleton said it was within his power to preserve the players’ anonymity by court order but gave no indication that he would do so.

“A court of law is different”, he said, referring to the confidentiality obligations that may or may not apply to ASADA.

His preference was for the joinder issue to be resolved by way of undertakings between the parties, on terms acceptable to both. But one way or another it would have to be resolved on Friday, he said.

Essendon and Hird claim that ASADA acted beyond its statutory authority in the way it conducted the joint investigation into allegations of doping at the club. They say ASADA relied on the AFL’s power to compel Essendon players and staff to give evidence because it lacked that authority itself.

The amended claims allege that in conducting joint interviews and sharing with the AFL information obtained from its own investigations, ASADA breached the confidentiality obligations imposed on it by the Act and the NAD Scheme.

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That Essendon players and staff would face AFL sanctions if they did not answer all questions put to them – in Hird’s case, some 1300 questions – was a denial of the common law right against self-incrimination, the pleading alleged.

Justice Middleton said he did not consider that the amended claims amounted to a charge of conspiracy.

He said he regarded them as an attempt to characterise ASADA’s investigation as being conducted for an “improper purpose.” Nick Harrington, acting for Hird, mocked the ASADA team’s concerns as evidence of a “siege mentality” typical of people who operate from a bunker.

The rest of the hearing was spent trying to get the parties to agree on what documents to provide to each other in the discovery phase of the litigation. Needless to say, little progress was made.

The case will return to the Federal Court for further directions on Friday July 4.

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