Justice Middleton decided on 17 June 2014 that, in light of the public interest in Essendon and James Hird’s case against the CEO of ASADA, he would make public some of the legal documents filed to date (including James Hird’s application), as well as an email he sent to the parties about the pending directions hearing on 27 June 2014. What does this information tell us?
First, the court applications were signed by solicitors, on behalf of their clients, not by Counsel which one would ordinarily expect. This is unusual for such a high profile significant case. The convention is that the barristers briefed in the case sign the pleading once it has been finalised. It appears though, that Essendon briefed Neil Young QC after litigation was launched. This indicates that Essendon began the litigation in a hurry, before it assembled its full legal team, and before Counsel briefed to appear could test the strength of the case and settle the elements of the claim.
Secondly, because the two court applications are so similar, it is easy to overlook a few important differences. In particular, Essendon and James Hird take a different approach to the question of standing (entitlement to sue). Neither has received a show cause notice and so broadly speaking, to obtain an injunction restraining the show cause notices against the players, Essendon and Hird might need to demonstrate they have a special interest in the subject matter of the decision or would be adversely affected by the outcome.
To do this, Essendon refers to the potential damage to its reputation and business interests if show cause notices are issued to players and personnel. James Hird puts it differently. He also refers to the potential damage to his ‘professional’ reputation (in his case) and business interests. However, as the former coach of the Club, the prospect that he too might receive a show cause notice in due course is something he does identify.
Thirdly, if we are in any doubt that Essendon and James Hird consider that the ASADA process was ‘ultra vires’ (beyond statutory power) because it was a ‘joint investigation’, one only need count the term ‘joint investigation’ which appears 14 times in an otherwise short court document.
Courts are typically unimpressed by the use of generalised statements such as ‘joint investigation’ to try to characterise a range of different activities. Here, the term is intended by Essendon and James Hird to cover three sets of circumstances: the making of an alleged ‘agreement’ between the AFL and ASADA in about February 2013, the joint interview process of players by the AFL and ASADA, and the preparation of the interim report. So why bother grouping these acts together under an umbrella term, rather than assessing the lawfulness of ASADA’s conduct in relation to each of them separately?
This might be because this particular court challenge relates to conduct leading up to a decision, not the decision itself (there has been no adverse finding against the players at this stage). Because there is no final decision, the challenged subject matter is not clear-cut. The onus is on Essendon and James Hird to identify in a coherent rather than fragmented way the subject matter of the dispute, and that any ‘ultra vires’ conduct by ASADA infected the legality of the whole investigative process.
The risk is that a court might find some elements of the process fell short of the legal requirements (e.g. confidentiality) but that this justifies no more than a slap on the wrist, such that the remaining investigation can continue. This risk is clearly appreciated by Essendon and James Hird. The claim relies on two limbs to justify the grant of relief: that ASADA acted beyond its power AND because it breached confidentiality. This is a high hurdle.
Fourthly, expect heated debate about how some of the alleged conduct should be described. It is fair to say that the word “joint” will not be popular in the ASADA camp. Somewhat ironically, the parties must now give Justice Middleton a “Statement of Agreed Facts” as a result of his email direction. This is never easy to achieve at the best of times. Imagine being a fly on the wall during negotiations between lawyers for ASADA, Essendon and James Hird about the relevant facts! ASADA is likely only to sign up to public admissions it has already made (e.g. “joint interviews” in 2013), and go no further.
To resolve some of the contested facts, Essendon and James Hird might try to seek limited discovery of all of the ASADA / AFL communications giving rise to the alleged “agreement” in about February 2013. The language of the application acknowledges that they have little information to go on about what, if any “agreement” existed, and when it was made. This aspect of the pleading appears speculative and might be susceptible to being struck out.
One reflects on the fact that Essendon and James Hird complain about a confidentiality process not sufficiently respected, and yet they might seek via the court, access to documents (such as those concerning the alleged “agreement”) which ASADA would have otherwise denied them.
Importantly, if the court did order that these document be produced to Essendon and James Hird (and this is by no means certain), they would not be able to disclose them to the Essendon players who have received show cause notices. The players are not parties to the proceeding. They are not entitled to receive any documents supplied to Essendon and James Hird via any document discovery process.
Finally, Essendon and James Hird seek injunctions restraining the issuing of any further show cause notices, and the use of any evidence previously collected. According to the Administrative Review Council in its 2006 report to the Attorney-General, there are at least 17 discretionary bases which might lead a judge not to make such an order (even if grounds are made out).
Natalie Hickey retired from the partnership of an international law firm in December 2013. She is now freelancing, loves her football and the law, and is committed to explaining things in a user-friendly manner. Refer The Social Litigator for an extended article about the legalities of this case.