No. VID 327 of 2014 Federal Court of Australia District Registry: Victoria Division: General

Essendon Football Club (ACN 004 286 373)

Applicant

The Chief Executive Officer of the Australian Sports Anti-Doping Authority

Respondent

No. VID 328 of 2014 Federal Court of Australia District Registry: Victoria Division: General

James Albert Hird

Applicant

The Chief Executive Officer of the Australian Sports Anti-Doping Authority Respondent

Joint submission regarding discovery from the Respondent regarding the purpose of the

entry into the Joint Investigation

1. At the directions hearing on 2 July 2014, the Applicants applied for discovery of the

following documents:

2. Documents recording or referring to the existence, terms or purpose of any

agreement or arrangement (including any revisions to it) between ASADA and the

AFL to conduct an investigation into suspected doping violations at the Essendon

Football Club in the 2012 season.

2. At the directions hearing on 2 July 2014, orders were made for discovery of the

documents in category 2, save that the word “purpose” was not included.

3. Having given serious consideration to the matter, the Applicants feel compelled to

raise the matter again given the prejudice arising from the denial of discovery of

documents recording or evidencing the purpose of the agreement between the AFL

and ASADA.

4. The prejudice arises in the following way:

(a) Both Applicants directly plead improper purposes of the Respondent.

(i) The Essendon Football Club (the Club) has, by its Amended Statement of

Claim pleaded (paragraph 4A) that the CEO “entered into the Agreement to

conduct the Joint Investigation for improper purposes”.

(ii) Those purposes are particularised as (to paraphrase):

(A) to take advantage of compulsive powers available to the AFL and not

ASADA in circumstances where the interviewees could not claim the

privilege against self-incrimination;

(B) to provide information from the investigation to the AFL; and

(C) to enable the AFL to use that information for its own purposes and not

for the purposes of the Act.

(iii) Mr Hird also pleads (paragraphs 7 and 8) purposes of the Joint Investigation,

including:

(A) the collection of information to be provided to the AFL otherwise than in

accordance with the legislative regime; and

(B) to obtain a benefit not otherwise available to ASADA to compel players

to attend interviews and require interviewees to answer all questions

while abrogating the common law right against self-incrimination.

(b) The Respondent has confirmed (by email to chambers on 3 July 2014) that he will

not be bringing a strike out application in respect of these paragraphs.

(c) Both Applicants will be giving discovery to the Respondent of the improper

purposes.

(d) As is further set out below, unless discovery is given by the Respondent regarding

purpose, the Applicants will be deprived of important evidence.

5. In relation to the last point, it should be observed that (as is apparent from Mr Hird’s

particulars), the Applicants are aware of statements that have been made by the AFL

concerning the purpose of the joint investigation. In particular, the Applicants are aware of

the following statements as to ASADA’s purpose:

(a) the YouTube clip of Dr Peter Harcourt (Nov 2013) referred to by counsel for Mr Hird

on 2 July 2014;

(b) an article by Harcourt, Clothier et al, “A forensic perspective of the AFL investigation

into peptides: an anti-doping investigation case study” published in the British

Journal of Sports Medicine on 18 March 2014 referred to in the particulars to

paragraph 8 of Mr Hird’s Statement of Claim; and

(c) a statement by Mr Andrew Demetriou, then the AFL’s CEO, on or about 27 May

2014, also referred to in the particulars to paragraph 8 of Mr Hird’s Statement of

Claim.

6. Those are statements on the public record that have not been contradicted by the

Respondent or ASADA. However, they are statements from a party to a joint enterprise that

is not a litigant. The litigant, the Respondent, has remained silent in circumstances where his

joint partner has spoken directly on the matter. The factual framework for a determination of

a critical issue is only partially revealed.

7. The Applicants fairly anticipate that ASADA will contend that statements made by the AFL as

to the purposes behind the joint investigation:

(a) should be confined to the AFL;

(b) cannot be attributed to the Respondent as its purpose; and

(c) are hearsay until the maker is called.

8. Save and except for an admission by ASADA as to the purpose of the agreement or

arrangement with the AFL (which is, at best, a remote possibility), the Applicant will be

compelled to prove its evidentiary case on the basis of likely contested inferences.

Alternatively, the Applicants will be compelled to draw inferences from a distorted or

incomplete factual substratum.

9. It is submitted that the best evidence of the Respondent’s purpose will come from ASADA’s

own documents.

10. In those circumstances, it is important in the interests of a fair trial that the Applicants not be

deprived of evidence of ASADA’s purpose. The exclusion of the word “purpose” from

category 2 has just that effect. The critical and hotly contested factual question before the

court remains: WHY did the Respondent enter into a joint investigation with the AFL? Absent

discovery on that question, there is an almost certain distortion of the underlying factual

matrix upon which a key issue in the proceeding must be decided.

11. Each Applicant is mindful of the necessary limitations in the context of an expedited trial. The

issue of purpose is not a peripheral issue, in respect of which discovery may more

reasonably be denied without any real prejudice being occasioned to the litigant. Here, the

Applicants will contend that the improper purposes (whether alone or in combination with the

absence of power to conduct a joint investigation and provide information to the AFL) justify

the relief sought.

12. At the recent directions hearing, his Honour referred to the administrative law concept of

improper purpose. In that context, the person affected by the decision typically has the right

to request that reasons be given for the exercise of power contrary to his or her interests.

Those reasons, as well as other evidence, would then form the basis for determining whether

there was an improper purpose that was a substantial purpose behind the exercise of the

power.

13. In this case, without the discovery sought, the Court will not be properly informed of a key

question, namely: “Why did the CEO of ASADA decide to enter into an agreement with the

AFL to conduct a joint investigation?” Was it because the CEO at the time sought, as alleged,

to take advantage of powers not available to her, or was it for some other reason?

14. Having regard to these matters, and in view of the expedited timetable (which will leave no

real opportunity to revisit the matter at a later date if the CEO were required to revisit the

discovery exercise afresh), the Applicants seek orders varying category 2 to include the word

“purpose”, or orders to like effect.

C Button

Counsel for the Essendon Football Club

N Harrington

R Walsh

Counsel for Hird