The 34 Essendon players issued with show-cause notices by ASADA will not be part of the Federal Court action aiming to have the investigation declared illegal and the notices permanently stayed.
This was the first and most significant development to emerge from the 3rd directions hearing of the case at the Federal Court on Friday.
As marginal progress was made on the issue of which documents each party must provide to the other ahead of the trial, it also emerged that the Essendon Football Club did not know the identity of the players who have received the show-cause notices.
David Grace, QC, acting for the players by videolink from Perth, advised the Court that the players did not consent to being joined as applicants in the proceeding and would oppose any motion to have them joined as respondents. The latter circumstance – their joinder as respondents – would be a requirement of the rules governing the joinder of parties against their will.
The players did, however, give an undertaking through Mr Grace that they would be bound by the final decision in the case and would not institute legal action to challenge it, unless exceptional grounds or unforseeable circumstances arose at the trial.
Justice John Middleton has repeatedly expressed his concern at the likely non-partipation of the players in the proceeding. Lawyers for ASADA have also raised doubts about the validity of any judgment made in the absence of active participation from the players’ legal representatives at the 3 day trial, which is set to commence on August 11.
The concerns of both the judge and ASADA stem from the fact that the players would be impacted – to put it mildly – by the outcome of the case.
But Justice Middleton said the undertaking foreshadowed on the players’ behalf satisfied the more serious of his concerns. He said he would permit their non-joinder as a formal party on the condition that they would be available to make submissions in their present capacity as “interested third parties” should any new developments, presently unforseen, make it necessary.
All parties agreed that this was an acceptable arrangement. The chief benefit to the players was that it ensured their identities would continue to be protected from public disclosure.
Beyond that, a spirit of cooperation between the parties to the dispute was notable for its near-absence.
The next hearing of the case will take place on July 9.
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.
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