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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

Summary of areas of dispute regarding discovery sought from the Essendon Football Club

Key:

Wording that the CEO seeks to include which EFC resists.

Wording that EFC seeks to include, which the CEO resists.

Timing: EFC proposes the order should be for discovery at the same time as discovery is given by the Respondent, namely 24 July 2014.

Category sought by the CEO EFC position

1. Documents recording or evidencing each Applicant’s knowledge of the

existence or terms 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 (the investigation).

No objection.

2. Documents recording or evidencing communications made by each

Applicant (i) to the AFL, (ii) to EFC players, (iii) to EFC personnel or

(iv) to the other Applicant regarding:

(a) the establishment and conduct of the investigation;

No objection.

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(b) the participation of each Applicant, any EFC player or any EFC

personnel in the investigation;

(c) the request or requirement that EFC players or EFC personnel

attend interviews and/or provide documents or other

information;

(d) the sanctions that EFC players or personnel may face if they do

not co-operate or provide the documents requested in the course

of the investigation.

3. Documents recording or evidencing the each Applicant’s knowledge,

attitude or views of:

(a) the provision by ASADA to the AFL or any other person of any

versions of the document known as the “Interim Report”;

(b) the provision by ASADA to the AFL of documents or

information obtained by ASADA in the course of the

investigation; and

(c) the provision by ASADA to the AFL of documents created by

ASADA during the course of the investigation.

Preamble: The inclusion of the words “attitude or views” in the

preamble is opposed:

(i) the words are too vague and obtuse to usefully guide

discovery;

(ii) the words do not add anything useful or relevant to

“knowledge”, which is already included; and

(iii) any documents recording, eg internal ruminations of the

EFC concerning the matters in (a), (b) (or (c)) is irrelevant to

the issue of acquiescence and delay raised by the CEO.

4. Any communications between the Applicants or between an Applicant

and the AFL concerning:

(a) the legality of the joint investigation by the AFL and ASADA;

(b) the Interim Report or any draft thereof; and

(c) the abrogation or prevention of the exercise of the common law

right against self incrimination in the part of each EFC Player or

EFC support person staff participating in the joint investigation

by the AFL and ASADA.

Inclusion of “legality” in 4(a): unless this limitation is

imposed, the category is apt to generate unlimited and

burdensome discovery. There is no issue in the proceeding

requiring discovery of any document containing a

communication “concerning” the joint investigation. The

category is fishing.

Categories 4(b) and (c) are opposed as the documents sought

are not relevant to any issue in the proceeding. The CEO will

have discovery of documents showing EFC’s knowledge of

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provision of the Interim Report under category 3(a).

5. Documents recording or evidencing that ASADA provided drafts or

versions of the Interim Report or parts thereof to the AFL prior to 2

August 2013

No objection.

6. Documents recording or evidencing that ASADA or the AFL provided

copies of the Interim Report persons or entities who were neither

athletes nor persons permitted by the ASADA Act and the ASADA

Regulations to receive the information in the Interim Report. .

No objection.

7. Documents relied upon by the Applicant in VID 327 of 2014 for the

allegations in paragraph 4A of its amended statement of claim

(including the particulars thereto) that the Respondent entered into an

agreement to conduct the alleged “Joint investigation” for improper

purposes.

No objection.

8. Documents relied upon by the Applicant in VID 328 of 2014 for the

allegation in paragraph 8 of his statement of claim (including the

particulars thereto) that it was a purpose of the alleged “Joint

investigation” that the Respondent and/or ASADA obtain a benefit it

did not otherwise have under the ASADA legislative regime when

conducting an investigation and could not have without the express

authority of Parliament.

[Not relevant to EFC]