ASADA court hearing - no shame or disgrace, just disillusionment

Reality is a disappointment, mostly. Those expecting drama and consequence from the first directions hearing in the case against ASADA didn’t have to wait long to be disabused of their misconceptions.

No sooner had Justice John Middleton taken his seat at the bench than a momentary power failure cast the entire courtroom into darkness.

It was a fitting start to proceedings given the general confusion about what this day in court was intended to achieve.

Not a great deal more light was shed on the matter when power was restored, it has to be said. At one point, as five different barristers made intermittent submissions of varying length and sense, and their battery of instructing solicitors shuffled paper or nodded sagely, the judge was moved to remark that “no one seems to be applying for anything”.

It was a decent observation, though not completely true. Essendon had its application for an interim injunction disallowed, albeit without a formal order.

Justice Middleton did nevertheless caution ASADA against “pressing any buttons” that might prejudice the interests of players to whom show cause notices have been issued.

Essendon, represented by Neil Young, QC – himself a former Federal Court judge – argued that the period for responding to the show cause notices should be extended until after the hearing and determination of the application for a permanent injunction.

It seemed like a reasonable point, considering the obvious mistrust between the parties, and the stakes involved. Were players required to respond to the show cause notices before the legality of the investigation is decided, they might provide self-incriminating information in an investigation that could yet be ruled illegal.

On the other hand, were they required to respond and opted not to do so, they would be taken to have waived their right to put their case. This would set in train the steps in an irreversible process that could end in the issuing of infraction notices. Club and players feel they should be protected from that possibility until the legality of the investigation is ruled on.

Players would be exposed to prolonged uncertainty if the “rolling 14 day time period” proposed by ASADA was the arrangement adopted, according to Mr Young, “The players would be on tenterhooks.”

The only inconvenience to ASADA in providing players with the “level of comfort” sought would be a couple of months delay in an investigation that had already run for seventeen months, he said.

“Unfortunately there will always be uncertainty with litigation,” Justice Middleton replied. “That’s why we’re trying to expedite it.”

The application for a permanent injunction was set down for trial on August 11, with an estimated duration of three days.

A decision on whether the 34 players who have received show cause notices should be joined (added) to the proceeding was deferred until next Wednesday, 2 July.

David Grace QC appeared on the players’ behalf at this first directions at the request of Justice Middleton, who felt it might be in the players’ interests to “have a close involvement in the case” given that they would likely be affected by its outcome. The judge was also concerned that the conduct of the trial might be disrupted or jeopardised in the event that a player or players decided subsequently that it was in their interests to join the litigation.

Mr Grace indicated that the players had no interest at all in getting involved in the case. They were “extremely sensitive to the issue of anonymity,” he said.

No submissions were made on the permanent injunction sought by Essendon and James Hird against ASADA, which is the main element of the case.

Essendon and Hird want the investigation declared invalid on the basis that it was a joint investigation with the AFL. They say the Act which gives ASADA its power to investigate doping claims does not authorise it to conduct joint investigations. Information obtained from that “illegal” investigation could not be used as evidence, according to the application filed on 13 June, 2014.

Tom Howe, QC, acting for ASADA, reiterated in court that his client “strenuously resists” the applicants’ claim.

Not strenuously enough to revive the flagging interest of footy’s leading media identities, however. They’d filed into Court 6K in good numbers, on the understanding that a result would be forthcoming. No matter that it’s not the purpose of a directions hearing to produce a result – that kind of result, anyway.

Their disillusionment was palpable. Mark Robinson swaggered into court with his customary Die Hard insouciance, only to swagger out looking dazed and troubled, every inch a suitable subject for one of Jake Niall’s reflections on Greek mythology and its relevance in this era of abject pointlessness.

My guess is that Robbo was wondering why anyone cares whether the investigation was legal or not while Eddie McGuire’s mystery caller is still out there, still at large, a provisional presence who probably never even existed but is still radiating waves of powerful, game-changing emotion.

Caroline Wilson, the other celebrity reporter in this long-running farce, didn’t bother attending. Which was a pretty sensible decision – there was precious little to be devastated or disgusted about, nothing especially appalling or shameful or disgraceful, no one particularly worthy of instant dismissal or public opprobrium.

In which case, why bother? Why get out of bed? What is the point?

David Ward is a Melbourne writer and author of the novel Reality Is A Moving Target. He has been a music writer or Melody Maker and Juke Magazine here, and has worked at the Federal Court.