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Lawyers for Essendon in the case against ASADA have confirmed what has been evident for several weeks – the trial is trouble.
In a public statement released on Tuesday, Justice John Middleton of the Federal Court advised that counsel representing Essendon and James Hird had informed the court last week that the trial was unlikely to be completed in the three days set aside for its hearing.
The trial is scheduled to commence next Monday.
This follows a month of laborious progress through the discovery stage of the case. Discovery is the process by which parties seek access to documents from their opponents that are necessary to substantiate the claims detailed in their own pleadings. The volume of material exchanged has been conservatively estimated to run into tens of thousands of documents.
In Hird’s case, the pessimistic trial outlook also follows the failure to satisfactorily resolve a number of legal professional privilege and confidentiality claims made by the AFL in response to a subpoena issued on July 4. Hird had sought to force the AFL to produce records detailing its collaboration with the anti-doping authority. The three listed hearings at which disputes over compliance were to have been dealt with have all been “adjourned pre-hearing”.
The subpoena is next listed for hearing Thursday – before a court registrar, who has limited power to decide on contested privilege claims.
An email circulated by Justice Middleton’s executive assistant indicated that the judge was not persuaded by the Essendon overtures and remained confident that three days will be sufficient.
“His Honour is still of the view that the issues seem relatively confined,” the email advised.
The judge did however issue some blunt directives on what had to be done by the end of the week, and stringent rules on how the trial would be conducted.
All parties are required to file written submissions by Thursday afternoon, and provide witness lists by Friday.
Court records show that Essendon and Hird have already filed their submissions. Curiously enough, so has the legal representative for the 34 players who have received show cause notices but resisted all attempts to be joined to the proceeding.
Andrew Tehan of Tony Hargreaves Partners, acting for the players, insisted that this did not indicate that the players would be taking a more active part in the case. “The players still have no desire to be involved”, he said.
It was also announced that Monday’s opening submissions would be broadcast live on ABC television from 10.15 am. The initiative apparently due to “the widespread public interest and with the intention of giving people an insight into the court’s role and how it operates”.
That is certainly an unimpeachable sentiment but, if the previous broadcast is any guide, employers needn’t fear an epidemic of absenteeism.
Counsel for Essendon and Hird will each have 30 minutes to make their submissions, with ASADA given 45 minutes and the players’ counsel allowed 15 minutes. The players’ rep would also be given the opportunity to address the court on the question of relief at the end of the case.
It was confirmed that the players would not be leading evidence.
The trial is shaping as something less than an exercise in full public disclosure, never mind closure. More and more, it is looking like a test of who can reveal the least.
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