Mega Thread Essendon & Hird v ASADA - Case Summaries, News and Video - The Aftermath Thread

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The_Wookie

The_Wookie

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Day 1

Best Summary Ive found is here

AFL 360


Footy Classified


Talking Footy


AFL.com.au


ABC


Heraldsun
The Australian

The Age
Recommended Day 2 Twitter feeds
  • Richard Ings (Former ASADA chief)
  • Chris Kais (a law student tweeting live from the court room, completely unbiased as far as I can tell)
Please keep your opinions on Tanias appearance, orientation, ancestry and other base ideas to yourself. They will not be tolerated in this thread.
 
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Day 2

Best Day 2 Summary (IMO):
Essendon Statement

Essendon chairman Paul Little has provided an update on proceedings from the Federal Court.

"As our members and supporters will understand, given this matter is still before the Federal Court there is limited information we are able to communicate about the specifics of the case."


"However, I will endeavour to provide as much information about the process as possible."


"The majority of the evidence has now been presented to the Court from all parties involved."


"The final witnesses will be called and cross examined tomorrow, and the closing submissions from The Club, James Hird and ASADA will also take place on the final day of the hearing."


"We are doing everything we can to ensure the court proceeding is not becoming a distraction to our players and they can concentrate on our fight to play finals this season"


"It is important to remember that this case raises serious issues about the legality of the AFL/ASADA joint investigation and represents an important step towards bringing these matters to a close for our players and their families."


"I will be able to provide our members and supporters with a further update tomorrow after the final day of the hearing."
Click to expand...
reference: http://www.essendonfc.com.au/news/2014-08-12/federal-court-update-day-2

Media Coverage

AFL 360



ABC News



Ten News



AFL.com.au


Heraldsun/News Limited
The Australian
If unable to access due to paywall simply copy the headline and past it into your search engine, and hit the links.
The Age/Fairfax
If unable to access due to paywall, change "theage" to any of "brisbanetimes", "canberratimes", "smh" or "watoday".


ABC News
Recommended Twitter Feeds
 
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Day 3

Bigfooty Case Wrap: Malifice, Ogg Cat (formerly The Prosecutor) and The_Wookie discuss where we're at, how we got here and where we go from here.



[audio link]

Best Day 3 Summary
News and Media

AFL.com.au



Essendon Football Club and James Hird



ABC

ABC News



7.30 Report


News Limited

Heraldsun
The Australian
 

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Closing Submission summaries (from Twitter)

Essendon Submission - Twitter notes

Chris Kaias ‏@ChrisKaias
  • Young begins his submission
  • Young: our case has two grounds: simple ground that actions taken were beyond power. Absence of a positive power
  • Young rejects that they need to prove implied prohibition, just no positive power
  • Young: proper construction not only shows no power, but is also impliedly prohibited by the act. Therefore relief not discretionary
  • Young: respondents suggest our case requires negative implication - it does not. Just no positive power in the act
  • Young: next ground, not unrelated, but investigation mounted and conducted for improper purposes
  • Young: Mr hanks summarised the aspects, exploiting afls powers, giving afl access to info to use it for their purposes in breach of Act
  • Young: clear that afl compulsive power could only be exercised to compel people to appear before asada if afl were in interview room
  • Young: use of the afl powers had as a necessary consequence... [middleton]: what would have prevented afl telling players to attend?
  • Young suggests afl didn't have the power to make players appear before asada without them present
  • Young: the price that asada paid to get access to powers was AFL got access to information for its own purposes, "quid pro quo"
  • Young: if they had acted under Act everything would have remained confidential, and if they wishes to impose SCs they could
  • Young: no scope for reports to other bodies before this in the act in the investigative process
  • Young: AFL were talking about appropriate sanctions before charges were even made
  • Young: we need to look to the legislation from before it changed because that's when the illegality occurred - prior to 1 August
  • Middleton points out he has to look at both acts "to a certain extent"
  • Young says in essence all the illegality re investigation happened before August 1 2013
  • Young believes he could get complete relief just based on things before 1 Aug, but transgressions just as illegal after that
  • Young: no doubt ASADA provided information knowing how AFL intended to use the information
  • Young: mismatch in evidence, Andruska says she never made a decision that AFL reps should be present at interviews or receive continual flow
  • Young: because she didn't make a decision she didn't turn her mind to the ASADA Act
  • Young says Andruska did not make "considered" decisions re inviting AFL access to interviews and legality of investigation
  • Young says there is a power conferred on CEO and she must apply her mind to the purposes set out in 13 (1)(g).
  • Middleton says isn't that a separate ground of review?
  • Middleton says that should have been pleaded, you'll need to ask for leave to plead that. Young says it only came up in cross examination
  • Young: no evidence that 4.21 authorised establishment of joint investigation
  • Middleton asks Howe (asada) what his thoughts are. Howe says decisions were made pursuant to which information was disclosed
  • Howe, acting for ASADA, asked to step in after Young assertions disclosure of info b/w parties was accidental
  • Howe: no disclosure was accident, clear that the people who releases the information made the decision to do so. Q is whether permitted
  • ASADA Lawyer (Howe) responds to the Essendon argument labelling it an "actual fiction" & “An Alice in wonderland proposition".
  • Young: we allege disclosures were beyond power, establishment of investigation was beyond power.
  • Young: structure of act is that if ignoring the joint inv, only way to disclose info to sporting orgs is 4.21
  • Young takes Middleton to Andruskas evidence about purpose of interim report. Her answer was "I had a commitment to provide a report"
  • Young: she knew AFL intended to use report, she used formulaic words of 4.21 in the letter
  • Young: says ASADAs submission is "fundamentally wrong headed" and that written submissions are far more in depth
  • Young highlights y-days Andruska evidence. She released interim report then made no attempt to stop process when AFL used it for sanctions
  • Young going through s 13 of Act
  • Young: act defines "anti doping rules", means only ASADAs anti doping rules, nobody else's rules or policies
  • Young: an important provision is one that sets out who can help the CEO
  • Young: under s 69 (c)- if CEO wanted to contract with Deloitte then they could become an entrusted person
  • Young: someone on Ministers staff not entitled to investigative information, eg Mr Eccles
  • Young: ASADAs interpretation in having afl in interviews is that the statutory obligations do not apply
  • Young: The fact that the AFL disclosed some of the info the press was "a rather extraordinary consequence" of ASADA's interpretation.
  • Young: is it truly argued that there's a loophole and someone from AFL can sit in? Middleton: well a loophole arises if there is one...
  • Middleton says understand argument that happened automatically so couldn't have made decision, could it not be made in advance?
  • Young: we would say that is not allowed and did not happen
  • That's talking about the CEOs decision to provide information to sporting body
  • Looking at the regulations now. Young is emphasising strict protections on information in various provisions
  • Young goes to NAD scheme, 2.1. "Anti doping rules" is not referring to any policies of the AFL
  • Then goes to 2.03, sporting administrative body rules. It isn't concerned with all AFL rules, only what is stipulated in 2.01
  • Middleton asks him to clarify. Young said the "sporting administrative body rules" only applies to those things in 2.04 not wider
  • Middleton: are you suggesting the heading "sporting administrative body rules" is a bit misleading? Young now refers to s 15
  • Middleton questions Young in trying to navigate the provisions, some confusion
  • Young uses the fact it says sporting investigations must cooperate with investigations to prove point. They can't cooperate with themselves
  • Middleton points out that we have an issue with the meaning of cooperation
  • Young goes to other provisions which points against joint inv. Says cooperation is different to sitting in room as joint investigator
  • Young: cl 3.27 only contemplates ASADA investigation, in sub-s (2) the Australian Government Investigation Standards apply
  • Young: curious proposition by ASADA is that strict requirements surround certain information but 4.21 allows a wholesale release
  • From Aug 1, legislation changed allowing CEO of ASADA (ASADA alone prev) to several parties incl Fed pol and sporting bodies
  • Any such sharing by the CEO of ASADA to sporting administration body must abide by Privacy Act - AFL does, Middleton says
  • Discussing analogising "Sporting Administrative Body" with other bodies such as the AFP
  • In English, CEO of ASADA can share info (from Aug 1) under confidentiality to stamp out 'doping violations'
  • Young: investigation is into ADRVs, not anything else. The process leads to show cause notices
  • Young: the disciplinary matters depended on governance matters, not ADRVs
  • Young disagrees with Middleton's construction of the subsection
  • Middleton says it makes it clear that information disclosed must be for the purposes of the investigations
  • Young sees 13 (1)(g) it as constraining the ability instead. Middleton says assuming I accept that, proceed on that basis and go on
  • Young suggests any disclosure to the AFL even regarding a specific player and drug is not for the purposes of Act as ASADA issue show cause
  • Middleton isn't exactly accepting the arguments, continual questioning and "trying to understand"
  • Young: if ASADA could disclose to sporting body at any time for any purpose, makes mockery that less sensitive info have strict proctections
  • Young wants to refer now to the extrinsic materials ASADA rely on. "They are seeking to elevate the conventions above the law"
  • Young asserts ASADAs reliance on international conventions is unfounded as they pre-date our "domestic" regulations. Middleton agrees.
  • Middleton suggests he doesn't spend too much time on this aspect
  • Middleton asks did amendment to Act not go further because it was assumed ASADA could use AFL like this?
  • Young says we can't rely on comments of one senator in a senate committee as ASADA are trying to
  • Young says the submissions argue the opposite
  • most things won't be in dispute
  • Middleton gives Young a chop out of sorts, will read his closing submissions over lunch to ensure we stay on time.
 
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Closiing Submissions - Twitter Summary

All from - Chris Kaias @ChrisKaias

Hird and Player Submissions
  • Middleton has returned. We're back underway
  • Young has a preliminary matter. Submit it would be unfair to Ess to allow ASADA extra time to reply to their submission as they didn't have
  • Young asks that we go to a 4th day, wants to do submissions tomorrow morning
  • Howe from ASADA wants to finish today
  • Middleton says he'll make a determination at the end of the day
  • Hanks submission now, on behalf of Hird
  • Hanks outlines the improper purpose argument
  • Hanks: the other purposes weren't purposes that were harmless, insubstantial or insignificant
  • Hanks: "but for" the other purpose, the investigation would not have happened
  • Middleton: it could be said that purpose of ASADA was to get to bottom of doping matters, this just a procedural way they found most efcnt
  • Hanks says there was more than one purpose. Finding out what happened, and to fill the gap in the legislation with the afl powers
  • Hanks now turns to relief
  • Hanks: cth authorities need to act within law, if no power in legislation can be found it is a jurisdictional error
  • Hanks: quoting Plaintiff S157/Bhardwaj - a decision vitiated by jurisdictional error is no decision at all
  • I could have ripped that from my Admin Law exam notes..
  • Middleton: assuming interim report provided unlawfully, assuming connection with unlawfulness and notices, SCs set aside...but......
  • Middleton: how far can I go with restraining what happens in future once notices set aside?
  • Hanks agrees they aren't asking to prevent future investigation
  • Hanks says that the product of the illegal investigation cannot be used. Middleton says what about the interviews? The transcripts?
  • Hanks proposition is ASADA cannot now ask the AFL for the transcripts
  • Hanks: the information in the hands of the AFL was obtained unlawfully.
  • Middleton: why should I not leave this up to decision maker next stg
  • Hanks: SC notices must be based on evidence, if the information is vitiated by illegality, jurisdictional error, then it is no information
  • Hanks goes to case quoted by ASADA - DPP v Martin - DPP sought certiorari (quash). Distinguishes. order by judge, was order of suprior crt
  • Here it is an administrative decision maker, not a judge
  • Hanks gets an extra 5 mins because of the judges long questioning
  • Hanks makes the point on acquiescence - would it have made a difference had they not? Says evidence shows they would have continued anyway
  • Hanks is finished

  • Grace (for players) to speak now. Middleton says he has read his authorities
  • Middleton agrees that the effects of third parties can be taken into account in remedies. Says Grace doesnt need to go into them. Grace does
  • Grace says if there is an occasion to consider discretionary relief, the impact on players ought to be a strong influence on discretion
  • Grace seeks leave to submit an amended submission. Grace finished
 
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Closiing Submissions - Twitter Summary

All from - Chris Kaias @ChrisKaias

ASADA Closing Submission
  • Howe (ASADA) to commence his closing submission. Final stretch now
  • Howe suggests His Honour have the authorities within reach, sounds like we'll be going through a fair bit
  • Howe disagrees with the proposition that there is no positive power. Streamed through Act the power to conduct investigstions
  • Howe: Ess must establish that all those references are subject to a parenthetic qualification "(other than a joint investigation)"
  • Howe: if one applies the plain text, ASADA is empowered to investigate etc
  • Howe: the plain text approach to statutory interpretation is in favour with High Court, the language used by legislature is the surest guide
  • Howe: negative implications cannot be used to improve the quality of a scheme, only permissible in varying circumstances
  • In other words, we care about what the words actually say and not what we think should be read into them
  • Howe: court can only negatively imply if Lord Diplock's test and one extra is satisfied. He is going through them but too much to type
  • Howe: it would be a profound rewriting to accommodate negative implication
  • Middleton now asks what if the CEO found some stranger and asked him to help him investigate the matter..would that be authorised?
  • Howe: different because a stranger does not have shared interest coinciding under the Act
  • Howe making some more statutory interpretation points but I can't quite catch the provisions
  • Howe: if CEO not satisfied of enforcement of its policy by AFL he has ability to report on that
  • Discussion of change to Act in which changed reference from CEO to ASADA. Middleton jokes he doesn't want to refer to wrong one in judgment
  • Howe: prior to 1 August all references were to ASADA itself. But definition of "ASADA" included it's staff. Nothing turns on this
[Just very minor commentary, these statutory interpretation arguments seem strong RE: the joint investigation at least]
  • Howe argues the CEO could actually go to AFL and say you aren't doing enough to prevent drug use etc
  • Howe suggests the words "for the purpose of or connected to" in the act clearly satisfied
  • Middleton asks what about s 13 (1)? Howe says that only suggests what NAD scheme must do at a bare minimum
  • Howe: cannot be doubt ASADA and CEO have a strong and robust seat at anti doping table RE: sporting bodies and their own anti doping rules
  • Howe making the point the negative implication must still be consistent with the wording actually used
  • Howe speaking now to concept of "investigative latitude"
  • Howe going through the latitude Investigators have to determine the scope of their investigators. Middleton points out the case quoted diff
  • Howe drawing analogies to another case which involved the collapse of the Geneva Group
  • There's very in depth analogising of the case but I don't have the case so too hard to follow. Taking judge through it
  • Moved on now to the term "connection with" in legislation. Refers to Project Blue Sky case. Here not remote or accidental connection
  • Howe now referring to s 68 of Act. Customs disclosure provision. Points out that restrictions are higher on the recipient
  • Howe: absolutely clear that CEO could have disclosed customs information to AFL for anti doping purposes. If can for customs, then def other
  • Howe agrees that would require a separate decision to disclose
  • Howe said perverse to characterise it that the interview information is ASADA information disclosed to AFL
  • Howe said it's not as if there was a cone of silence over the AFL representative and only ASADA heard then disclosed to AFL
  • Howe says absolutely ridiculous. The disclosure is actually by the players not ASADA. Doesn't matter who asks question
  • Discussion whether the conventions are simply an aid to statutory construction or in fact to inform how the schemes are to operate
  • Howe taking Middleton through the conventions to point out the relevant aspects
[As a side note, Justice Middleton has been fantastic IMO. Seems fair, open-minded, strict where necessary. The right judge for this case.]
  • Howe: there was a provision repealed, because ASADA no longer decision maker, no longer had to be at arms length from sporting bodies
  • Referring there to the Anti Doping Rule Violation Panel being in charge of entering people on Register of Findings and so on
  • ASADA now going to second reading speech
  • If very interested in what's being said here, can read this part of ASADAs written submissions. Many quotes being thrown out quickly
  • Howe: was clearly contemplated that ASADA could use AFL powers. Middleton: couldn't you have just got AFL to do investigations and got info?
  • Howe: yes, it could have been done a different way but that doesn't make it unlawful
  • Howe giving Middleton more homework to read, no time to go through them all
  • Howe now referring to specific clauses of the AFL anti doping code. Support persons obliged to cooperate with ASADA, not just AFL
  • Last tweet should say "support persons and players"
  • Howe: if anything turns on it, was suggested disclosure to Eccles improper but reg 5(3) is a blanket authorisation to supply info to dept
  • Howe goes through trying to find regulation but it seems it may have been added since 1 August and not applicable at the time. Unsure
  • Howe says that in Ess's submission called Andruska "non responsive, partisan..." yesterday. Howe says does not warrant that suggestion
  • Middleton: assuming I find inv unlawful, set aside notices, then what happens, interviews can't be used?
  • Howe: then AFL would have it and can request it.
  • Middleton says possibly fruits of illegality.
  • Howe: then AFL need to be joined as party
  • Howe: ASADA can just issue disclosure notice for transcripts to AFL or the players themselves
  • Middleton: if I found unlawful activity caused notices to be issues, usual to set aside notices?
  • Howe: suggest no point setting aside
  • Howe: no point setting aside because ASADA can just reissue
  • Middleton: I'll look at those cases more carefully but it seems more difficult
  • Middleton: if i set aside notices, later decision makers have no authority to do anything
  • Howe: could get new information within 24 hours and reissue.
  • Middleton: couldn't do within 24 hours, would need to turn mind to it
  • Howe: but your honour it is the same information.
  • Middleton: yes but principles of natural justice requires it
  • Howe says but in denial of natural justice person has lost opportunity to engage with decision maker, here diff, no lost opportunity
  • Howe was about to finish then was handed something by solicitors
  • Howe:"we took seriously suggestion we should have been twirling into early hours of morning", hands up their commentary on factual positions
  • [Sounds like Ess and Hird handed in the documents outlining which factual findings they want judge to find and now ASADA have submitted reply]
  • Howe is now finished.


  • Young has some matters he wants to reply to
  • Young says it is a straw man argument, the negative implication argument
  • Young: the argument is based on flimsy foundations
[Just a note, "natural justice" wasn't I think deliberately chosen by Middleton as some reference, it's the oldest established Admin ground]
  • Young speaking about "sporting administrative body rules" points of the scheme, debating ASADAs role in monitoring
  • Middleton querying Young what sporting authority must cooperate with an investigation means
  • Young makes point that rules binding sporting admin bodies to work with ASADA re anti-doping violations limited to body itself, not players
  • Young says s 13 (1)(f) is not an example, it is exhaustive as to who will investigate doping violations
  • Young discussing again matters regarding the disclosure of interview information. It doesn't sound like anything new
  • Middleton says what about proportion that interviewee was the one who disclosed to AFL? Young: it is an asada investigation
  • Young speaking to the international conventions again, saying ASADA Act overrode those conventions
  • Young:reacquiring transcripts from AFL-if transcripts obtained unlawfully ASADA cant insulate itself by giving to 3rd party and asking back
  • Middleton says problem he's worried about, making sure any order he makes doesn't prevent getting same information lawfully next time
  • Young says though that the interviews won't be the same because players may assert privilege this time
  • Hanks speaking now
  • He's referring to another case and analogising. It's about sharing information. Unsure which case
  • Harrington quickly speaking now and clarifying an error from Hirds submission from last night/this morning
  • Young dealing with some housekeeping about exhibits and annexures

  • Middleton: only 1 thing outstanding, both parties can have an extra 24 hours to add to the factual findings documents
  • Young says he doesn't expect to need the time
  • Howe confirms he wants no more time
  • Judge has reserved his decision. Court adjourned.
  • No indication how long he will take. But he's known as a quicker judge than some
 
popcorn_seinfeld.gif
 
I was under the impression that a decision from Justice Middleton would be a few days away perhaps.
Jules De Stoop last night on 360 said a decision is a minimum of 4 weeks away, maybe even as long as 10 weeks before we hear the result.

Any legal boffins on here confirm the "likely" timeline?
 

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AC for PM said:
I was under the impression that a decision from Justice Middleton would be a few days away perhaps.
Jules De Stoop last night on 360 said a decision is a minimum of 4 weeks away, maybe even as long as 10 weeks before we hear the result.

Any legal boffins on here confirm the "likely" timeline?
Click to expand...

Its very hard to say. Could be days, more likely weeks, unlikely months. I understand Middleton is fairly quick.
 
AC for PM said:
I was under the impression that a decision from Justice Middleton would be a few days away perhaps.
Jules De Stoop last night on 360 said a decision is a minimum of 4 weeks away, maybe even as long as 10 weeks before we hear the result.

Any legal boffins on here confirm the "likely" timeline?
Click to expand...

Interestingly means that if Essendon earn a spot in the finals, they would likely keep it this year. Of course the next issue is that if they were to go and do something stupid like win the premiership, what happens? No way the AFL could let them keep the cup. Obviously it's way outside the odds, but would be very annoying for them to go and do something that silly!
 
Baldur said:
Its very hard to say. Could be days, more likely weeks, unlikely months. I understand Middleton is fairly quick.
Click to expand...
It'll be somewhere in the middle if it's Middleton. :D

But seriously, I would predict 2-3 weeks. He said right from the beginning that he wanted a quick resolution to this, and this has went on for too long. Based on this I expect a decision before the finals.
 
Last edited:
Ari said:
Interestingly means that if Essendon earn a spot in the finals, they would likely keep it this year. Of course the next issue is that if they were to go and do something stupid like win the premiership, what happens? No way the AFL could let them keep the cup. Obviously it's way outside the odds, but would be very annoying for them to go and do something that silly!
Click to expand...

Was thinking about that this morning. Would be amusingly messy and complicated - more-so than already is.
 
Ari said:
Interestingly means that if Essendon earn a spot in the finals, they would likely keep it this year. Of course the next issue is that if they were to go and do something stupid like win the premiership, what happens? No way the AFL could let them keep the cup. Obviously it's way outside the odds, but would be very annoying for them to go and do something that silly!
Click to expand...


Ray Chamberlain will umpire any essendon finals in case
 
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