It remains unclear how much information the AFL will be forced to disclose at next month’s Federal Court trial to determine the legality of ASADA’s investigation into Essendon’s 2012 supplements program.
The court was advised on Tuesday that legal professional privilege had been claimed over some of the material sought, while other documents were produced in a redacted form, with sensitive information removed.
The AFL was issued with a subpoena to produce documents by lawyers for James Hird earler this month. But the hearing on Monday at which the documents were to be produced in open court was cancelled at short notice, and the July 28 hearing proposed in its place has been brought forward under pressure of the tight timeline.
Applications by Hird and Essendon for further access to the documents produced to the court will now be heard on Wednesday 23 July, at 4.15pm. Orders made this week by registrar Daniel Caporale indicate that issues arising from the AFL’s limited compliance with the subpoena will be considered on the same date.
But given the complexity of legal professional privilege and the likely importance of the information withheld – the orders refer to one of the documents as ‘the Redacted Agreement’ – it is unlikely that a dispute over access to the material would be decided by a registrar. The late-afternoon listed starting time also suggests it may be referred to a duty judge to sort out.
The judge who will preside over the trial, Justice John Middleton, has been interstate on court business and is due back on July 28, coincidentally the same day Essendon’s suspended coach is scheduled to return after his Paris study trip.
Whether any resolution of a pre-trial dispute reached in Justice Middleton’s absence would be interim or permanent remains to be seen. But the grave concerns expressed by ASADA’s lawyers about the “viability” of the three-day trial, set to commence on August 11, are beginning to look decidedly realistic.
The orders confirm that a large quantity of documents were “delivered up” to the court by the AFL in digital form on July 15. Access to several categories of these documents was granted to all parties immediately, apparently by consent. Of the remaining documents, the two versions of the agreement – one original, one redacted – is a likely source of dispute.
Essendon and Hird are desperate to know more about an agreement between ASADA and the AFL in February 2013 to investigate the club’s use of peptides the previous year. They believe this agreement was in writing and subsequently revised and extended as a better understanding of the powers necessary to conduct the investigation began to emerge.
ASADA has conceded it did not have the authority to gather evidence that was available to the AFL under the latter’s binding player code of conduct powers.
In an article published by the British Journal of Sports Medicine, the AFL’s integrity officer, Brett Clothier, would later refer to “the exchange of information and the sharing of expertise” that was a critical feature of the investigation.
Clothier confirmed in the publication that “the AFL had extensive and, at the time, superior investigative powers to ASADA, which facilitated the inquiry and substantially assisted both parties”.
It is the precise nature of the information shared, along with the quid pro implications of the exchange, that is of particular interest to the Essendon camp. ASADA was prohibited from disclosing what the Act defines as “NAD scheme personal information” to other persons or parties, albeit with a generous list of exceptions.
But most of the exceptions listed are for purposes specific to investigating doping violations. Whether it was permitted to share the personal information for the purpose of allowing the AFL to impose sanctions for governance failures may well be another matter.
Essendon and Hird have so far been frustrated by the restrictions placed on their ability to establish that ASADA acted with “improper purpose”, which they consider to be critical to their case. They are hoping to extract information from the AFL that will flesh out what Hird’s lawyer, Nick Harrington, calls “the partial picture of the investigation” provided by ASADA.
They believe “the Agreement”, whatever it is, will show that the anti-doping authority violated its own confidential laws. If they can get their hands on it.
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