Mega Thread Hird Appeal dismissed by Full bench of the Federal Court 30/1- Hird will not appeal. Details in OP.

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JAMES HIRD will find out on Friday whether his appeal against ASADA to the full bench of the Federal Court was successful.

Justice Susan Kenny will deliver the ruling at 2.15pm AEDT at the Federal Court building in Melbourne, representing herself and the two other judges, Justice Tony Besanko and Justice Richard White.

It is not expected the announcement will be televised. This will be the Live update thread for the appeal.

Chris Kaias @ChrisKaias · 5h 5 hours ago
I'll go along and tweet the verdict Friday

Media
Previously
Twitter feed (Chris Kaias ChrisKaias)
  • Justice Kenny has arrived
  • Kenny delivering her judgment now
  • She will read a short summary of the effect of the reasons first
  • Appeal dismissed
  • Kenny now reading a summary of the show cause notice process
  • Kenny noted that Hird disputed Middletons characterisations of fact
  • Kenny: we reject Hird's argument that Middleton mischaracterised the facts
  • Kenny: the legislative scheme authorised ASADA to make use of AFLs powers
  • Kenny: it cannot be an improper purpose for the CEO of ASADA to acquire information in a lawful way
  • Kenny: players disclosed info to both ASADA and AFL at the same time
  • Kenny: no practical unfairness to players in way interviews conducted
  • Kenny: Hird and players voluntarily accepted AFL powers when they signed AFL contracts. They were legally represented in interviews
  • Kenny: nobody objected to answering any questions at interviews, whether pleading self incrimination or otherwise
  • Kenny: a party to an appeal is bound by the way it ran the case at trial
  • Kenny: court orders that appeal dismissed, Hird pay ASADAs costs
  • Court adjourned
  • No indication that decision was not unanimous. Reasons online soon
Judgement and reasoning
Chris Kaias ‏@ChrisKaias
  • Full Court agrees that ASADA+AFL were engaged in separate enquiries and co-operated, that was the extent of the 'joint investigation' [131]
  • Full Court finds that contrary to submission that ASADA and AFL could not work together, it was a 'mandated cooperative relationship' [140]
  • While the WADA Code does envisage close cooperation, the court didn't place much emphasis on this, would have decided same either way [149]
  • Court would not entertain arguments about the AFL contracts and self-incrimination because that argument was not run at trial [150]-[163]
  • AFL could have i'viewed players alone then given to ASADA. Therefore ASADA did not facilitate abrogation of self-incrimination rights [193]
  • On self-incrimination point, again fatal that the compulsive powers were the AFL's and they were not in dispute. ASADA did not compel [189]
  • 'The appellant’s proposition that it was irrelevant that ASADA itself did not use any coercive power must fail.' [195]
  • No basis for submission there was an absence of free consent or that the appellant did not waive any rights against self-incrimination [198]
  • Section 22 (the 'necessary and convenient' power) is to be read broadly and not subject to an implied prohibition against co-operation [210]
  • Court agrees with Middleton that cooperation with AFL was 'convenient' and therefore investigation supported by s22 of ASADA Act [211]-[213]
  • Fair to say there was complete and unanimous support of Middleton J's judgment by the Full Court.
Natalie Hickey @njhickey ·
  • Normally, most throw dice at High Court special leave application. Defers paying costs. Costs to do it not high #Hird #ASADA
  • But this is not normal. #Hird has an employer to contend with. #EFC unlikely to support further legal action. Case seems stale.
  • Costs estimate? If #ASADA's costs taxed at 70%, then #Hird to pay, say, $350K - appeal; $350K - trial (split with #EFC) = $700K.
  • When calculating #Hird costs, for a case of #ASADA size, trial costs normally $1M+, appeal costs $500K+. AGS keeps costs down, but 2 QCs.
  • NOTE: #Hird cannot simply 'appeal' Full Court judgment. Special leave required, & High Court rarely lets appellants pass go. #ASADA
Chris Kaias ‏@ChrisKaias
Media Fallout
Legal Analysis






Hird reserves the right to Appeal to the High Court


Statements and Reaction

Federal Court appeal judgment
http://www.asada.gov.au/media/organised_crime_and_drugs_in_sport.html

30 January 2015

Australian Sports Anti-Doping Authority (ASADA) welcomes today’s judgment delivered by Justices Susan Kenny, Tony Besanko and Richard White in the Federal Court appeal by Essendon coach, James Hird.

Today’s unanimous judgment by the Full Court upholds Justice John Middleton’s earlier comprehensive ruling that ASADA lawfully conducted its doping investigation into the Essendon Football Club.

The judgment reaffirms ASADA’s strong view that ASADA and sports have a joint responsibility in upholding clean competition in Australia.

ASADA and sports must partner if we are to have any chance in protecting the integrity of fair competition.

This partnership allows ASADA, in harmony with sports, to run a holistic anti-doping programme focused on prevention, education, testing, investigation and enforcement.

ASADA Chief Executive Officer, Ben McDevitt said it is important that the community understands that the fight against doping, is not a fight against sport.

‘We remain vigilant in our work to protect the health of athletes and their right to compete against clean athletes,’ said Mr McDevitt.

Update from Chairman Paul Little
http://www.essendonfc.com.au/news/2015-01-30/update-from-chairman-paul-little

Paul Little January 30, 2015 4:35 PM


Dear members,

I wanted to provide a quick update on a number of matters relating to the ongoing ASADA investigation.

As you would be aware, James Hird was unsuccessful in his appeal today. James was exercising his legal right and was naturally very disappointed his appeal was not upheld.

We look forward to James continuing to focus on preparing our players for the upcoming season and building on the great work he has done over the last four months.

In relation to the AFL Anti Doping Tribunal, unfortunately the process is taking longer than we initially anticipated. As a club, we remain confident in the players' position and will continue to provide ongoing support to our players and their families.

While we all would like this matter to be resolved as quickly as possible, it is now expected a final decision will not be handed down until March.

In response to media speculation about our participation in the NAB Challenge series, it is important to clarify that any suggestion we will not be playing is premature.

As it stands, our players who have been issued with infraction notices can have their provisional suspensions lifted at the discretion of the AFL Commission. However, it is unclear if this would impact the ability of a player to use this time against a potential sanction in the event of a guilty finding.

We hope to have clarity on this complicated and unprecedented matter in the coming weeks and are working closely with all of the relevant parties to ensure we reach a satisfactory outcome for our players as quickly as possible.

Finally, on behalf of the Board and everyone at the Club, I’d like to thank the Essendon members and supporters for their continued support of our players through this difficult period.

The last two years have been testing times for us all but you have stood by your club through everything. To have already signed up more than 40,000 members is a fantastic achievement and we are on track to set a new record of 65,000 members in 2015.

I can assure you the coaches and players are working harder than ever to prepare for the upcoming home and away season. I encourage you all to come out and watch one of our February opening training sessions at the True Value Solar Centre.

Go Bombers!

Paul Little AO

Hird statement on Appeal status

http://www.essendonfc.com.au/video/2015-02-27/btv-james-hird-media-conference-february-27-2015
  • Hird: "All the way along, we've fought this fight because we believed our players were innocent."
  • Hird: "The decision is not to take it to the high court."
  • Hird: "This is the best opportunity for our players to just play football and for me to coach."
  • Hird: "I want to thank all our supporters for all their overwhelming support."
  • Hird: "Ultimately we hope that our players are cleared."
  • Hird: "Our members and supporters can get on with supporting and our team can get on with winning games."
 
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MaddAdam

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Even if Hird gets a win, ASADA will just go back to the start. But I very much doubt Hird will.

Fair play to him for appealing though. No point launching the action if you're not going to see it through.
 
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Even if Hird gets a win, ASADA will just go back to the start. But I very much doubt Hird will.

Fair play to him for appealing though. No point launching the action if you're not going to see it through.

I think we have to consider that even if Hird "wins" it might not be a simple wipe out.

When the first court case came about, there was a lot of speculation about not just who would win, but what orders the court could make.

So, it could be a case that they find of or Hird in general terms, but still say that much of the investigation still stands. That would be fun.
 

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I think we have to consider that even if Hird "wins" it might not be a simple wipe out.

When the first court case came about, there was a lot of speculation about not just who would win, but what orders the court could make.

So, it could be a case that they find of or Hird in general terms, but still say that much of the investigation still stands. That would be fun.

Yeah, that's certainly my preferred outcome, for the LOLZ that would ensue.
 
What's the issue with justice Kenny delivering the result of the Hird appeal
Means nothing.

Just some think Kenny seemed most interested in Hirds argument.

But she was the lead judge controlling the trial.I think it was always going ot be her delivering the verdict.

Is also iirc, the admin law specialist of the 3.
 
Even if Hird gets a win, ASADA will just go back to the start. But I very much doubt Hird will.

Fair play to him for appealing though. No point launching the action if you're not going to see it through.
Not quite that, even a Hird win it depends on the relief given.

My opinion s Hird will lose.

But, Hird could win, and still have no implications for the current investigation. more than likely if he won it would be more likely to set groundwork on how future investigations are run. Even with a win, that has tended to be my advice on what would happen. Struggled to see Hird being successful in knocking everything out, and that was from an Essendon sided person.
 
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Bluesince62

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In split decisions is it normal for the judges to present their ruling separately or does a single judge present both the majority and minority rulings ?

ie Can we infer that the decision is unanimous ?
 
I think we have to consider that even if Hird "wins" it might not be a simple wipe out.

When the first court case came about, there was a lot of speculation about not just who would win, but what orders the court could make.

So, it could be a case that they find of or Hird in general terms, but still say that much of the investigation still stands. That would be fun.

Yeah, that's certainly my preferred outcome, for the LOLZ that would ensue.

As much as I'd like the LOLZ I'd much rather see Hird crushed.
 
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In split decisions is it normal for the judges to present their ruling separately or does a single judge present both the majority and minority rulings ?

ie Can we infer that the decision is unanimous ?
I believe that the verdict will be handed down, then they publish the rulings on the day or at a later date (only happens if the decision was needed ASAP and extremely urgent)
 
I believe that the verdict will be handed down, then they publish the rulings on the day or at a later date (only happens if the decision was needed ASAP and extremely urgent)
Nah, I think with this one they'll hand down the full reasonings, like with the Middleton trial.
 
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