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.
Declan McAllister
Guest
Hello There, They Should be New Teams in America and New Zealand 1.Brooklyn Scorpions 2.New York City Rangers 3.New Jersey Gonnas 4.Manhattan Dragons
Topgun
Guest
ASADA need to back off and simply get their facts right before they try to bluff Essondon and their players.
BeyondThe Pale
Guest
Yes Steven. Ok. You can wait until a court finds the players guilty in 2 years time (after all the Essendon delaying tactics) ibut then they will be looking at 2 year bans and your coach will be looking at a minimum of a 10 year ban and quite possibly longer. This will be hanging over the players for over 6 years and they will finish their suspension in 2018 / 2019. What a great idea that is.
Aransan
Guest
My point is that this has taken far too long, if this was allowed to run the course that ASADA has been taking Essendon would be effectively punished again by the loss of the 2014 season in addition to 2013. The players have been asked to prove they are not guilty, this is a nonsense. If ASADA has the evidence then action should be taken, the fact that they have not done so means that they don't have the evidence as far as I am concerned. This wouldn't stop them from taking action in the future if evidence did eventuate but this action has to be terminated until they have got something to go on.
Lamby
Roar Rookie
"Essendon failed in terms of governance issues and have accepted heavy punishments" Yes, Essendon were, but the PLAYERS have strict liability in terms of what they put into their body and have yet to be penalised (if they are found guilty).
Aransan
Guest
How can all these "facts" be out there when the investigation has been confidential? Justice delayed is justice denied and this matter has taken far too long to be concluded. What can be said is that Essendon failed in terms of governance issues and have accepted heavy punishments in terms of a large fine, being thrown out of the 2013 finals, loss of draft picks, and officials being suspended including the senior coach suspended for a year. Essendon accepted the loss of their 2013 season and I believe they are right not to accept the loss of the 2014 season as well due to ASADA's inability to complete their process in a timely fashion. However, I will say that Hird should have taken some responsibility for what occurred under his watch. The year suspension I believe was justified but I get the impression he feels that it was unfair. I am not suggesting a further punishment for him, just an acknowledgment by him that he did fail in his duty of care.
Lamby
Roar Rookie
"Take a 6-month suspension when you firmly believe you’ve committed no offence?" BUT that is the problem - Essendon cannot produce lists of exactly what was taken, in what doses or when. So how can they be 100% sure they have committed no offense? ASADA believe they have evidence to show that Essendon paid for a banned substance and there is nothing indicated it was not taken by Essendon players, hence the 'show cause' notice to give the players the opportunity to prove they did not. "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." - which is why ASADA have it in their charter to allow working with sport governing bodies!! This will get thrown out of court. ASADA /WADA do not have the power to do un-announced drug testing - it violates civil liberties, which is why it relies on athletes signing away their 'rights' to be able to play for a sporting body (AFL, Athletics Australia etc). ASADA use the results of testing to issue infraction notices. This is ASADA using evidence it cannot gather itself. THIS IS EXACTLY the same thing. Players should have taken the 6 months when they had the chance to be back for the start of next season. Now they run the risk of losing players before this years finals and for a chunk of next season - if not all of next season if they are given 12 month bans.
Steven
Guest
Take a 6-month suspension when you firmly believe you've committed no offence? And forever after be labelled a drug cheat? Yeah, what a great idea that is. Pursuing justice in court is not "avoiding scrutiny". It is pursuing justice - something denied Essendon so far by the AFL. Lets see how this plays out in court before deciding anyone is guilty of anything, hey? It's called "innocent until proved guilty" - a basic tenant of our legal system and society, unless you believe Caroline Wilson, in which case lies and character assassination are all that is required to prove "guilt".
Casper
Guest
I agree with you. There seems to be no evidence that they took anything illegal, so shut it down and lets move on.
BeyondThePale
Guest
Essendon and Hird are just using delaying tactics and trying to avoid scrutiny by finding technicalities. What will this achieve? Asada have already said that if the Court finds the investigation illegal which I think is unlikely that they will just start again. The players should stop listening to Essendon and put their hand up take the 6 month suspension as soon as possible and come back next year with all this behind them. Everyone knows that they were duped. Their reputations will be intact. The way Essendon are going this will take years and the players long term careers will suffer as a result. If Essendon are pressuring the players not to do this then go and play for a club with more integrity.
Aransan
Guest
If you are seeking justice, don't just rely on the courts. Common sense and the law can be mutually exclusive.
c
Guest
This reads as any other complex court case would, the maneuvering between the parties , each party using their financial resources to retain the best legal minds to use the rules’ available within the legal system to achieve their desired result. As an aside these things are never resolved quickly, at least one party is left devastated and the lawyers who have worked very hard throughout the mater always leave very well rewarded ready to take on their next assignment (note when referring to “party” this does not apply to government institutions as they are established for the good of the public at large)
Storm Boy
Guest
This is so boring now. The govt should just shut the thing down and give all Australian sports a final zero tolerance warning.
Bosk
Roar Rookie
It'll be interesting to see if James Hird is encouraged to sit in the coaching box alongside Bomber during the last month or so of the season. I imagine even a number of Essendon supporters wouldn't be thrilled to see it happen.