Essendon supplements saga: Likely battlegrounds at 27 June Federal Court directions hearing

By Natalie Hickey, June 26, 2014

A review of the materials filed by the parties reveals important matters to be dealt with at the hearing, even though the substantive merits of the dispute will be likely heard in August 2014 (the parties agree on a trial in August but not on the precise date).

Most importantly, by its submissions, ASADA has lobbed a curve ball into the litigation about the very essence of its viability. Before anything else can be dealt with, ASADA submits, the Court must decide whether the case can continue if the affected players are not joined as parties. It has ammunition on its side, specifically case law, which Essendon and Hird attempt to distinguish in their own submissions here and here.

Paraphrasing, ASADA’s argument goes like this:

1. The principle that courts should not hear hypothetical cases must be respected.
2. This principle is supported by legislation, which directs the parties to focus on their overarching obligations in litigation, namely, the need for efficient justice. Efficient justice includes avoiding the risk of multiple proceedings.
3. The players are not party to the proceedings. They say, by correspondence from their lawyer, that they do not want to be joined.
4. For Essendon and Hird to obtain orders restraining the CEO of ASADA from pursuing the show cause notices, the players are “necessary” parties because they will in a direct and substantial way be affected by the outcome.
5. If the players are not parties, there is a question about whether, and in what manner, the litigation could proceed.

[Note: This point is not about the “standing” of Essendon and Hird to sue; it goes to the relief they can seek. That is, if the case was pursued and it was found that the CEO of ASADA acted outside his powers, the court could say it was unable to make the extensive orders sought because it impacts the players and they are not part of the case.]

In response, Essendon and Hird do not dispute the case law on which ASADA relies, and they squarely address the News Limited case. They seek to distinguish it from the facts at hand. Their response can be summarized generally on the basis that:

1. Essendon and the players have essentially the same interest in the case (Essendon’s submission)
2. The players are not yet directly affected because there has been no final decision by ASADA (Hird’s submission)
3. The relief sought will not, if ordered, adversely affect the players’ interests (Essendon’s submission)

When considering what to do about this, the Court might need to assess:

1. How the players cannot be regarded as necessary to the case and directly impacted by the outcome given they are the addressed recipients of the show cause notices Essendon and Hird seek to set aside.
2. The impact on the proceeding if the players later decide they want to be involved (i.e. the letter sent on their behalf stated: “At this stage, we see no necessity for our clients to seek to be joined to the recently issued proceedings in the Federal Court” (emphasis added) meaning that the prospect has not been ruled out completely).
3. In terms of relief, whether the interests of the players and Essendon are truly the same, and the impact if any difference is found.

 For instance, Essendon and Hird participated in negotiations following the 2013 Interim Report which led to them accepting sanctions from the AFL which included not participating in the 2013 finals series. ASADA claims that this represents “acquiescence” which means that – even if Essendon’s and Hird’s theory is right – the court should exercise its discretion to refuse making any permanent injunction in their favour. The players did not participate in this process and would not face this impediment. 

4. Given that the players will not be bound by the outcome of this case because they are not parties to it, if it is established that the CEO of ASADA did engage in ‘ultra vires’ conduct, whether there is a likelihood of a further case by the players if the orders sought by Essendon and Hird are not (or cannot) be made.

 For instance, declaratory relief that ASADA acted outside its powers would not impact the show cause notices. The players would need to bring a new, separate action arguing that such ultra vires conduct should invalidate ASADA’s investigation.

5. If the wide ranging request for discovery by Essendon and Hird is permitted, what it practically means for them to have the benefit of this information, but be unable to show this to the players (due to the implied undertaking only to use documents for the purpose of the case) either during the case or for any subsequent legal action the players might bring.

• The discovery request is very broad. For instance, Essendon and Hird wants ASADA to produce all documents “issued to EFC players and any other person” (who may have no affiliation with Essendon) comprising show cause notices in relation to the investigation.
• Consider also the implications (if the parties’ interests are not truly aligned with the players) of asking ASADA to produce extracts of transcripts of interviews with Essendon players and personnel.
• Note the breadth of a request for any document between 6 February 2013 and 20 June 2014 between the CEO of ASADA and the AFL where the name “James Hird” is mentioned or discussed.

Given the significance of this matter to the future of the case, there is a genuine prospect the judge might seek to have this issue heard as a preliminary question, before any other matters are dealt with. The judge might suggest to Essendon and Hird that it would be useful for them to understand sooner rather than later whether the court is prepared to make orders impacting the show cause notices if the players are not part of the proceedings.

If, for example, the court decided not to make such orders, the Applicants would need to decide whether there was any point pursuing litigation simply for declaratory relief. Hird, for example, has stated in his submissions: “Unless relief is obtained in the terms sought, those Notices may directly lead to further steps that will, in due course, be adverse to [Essendon and Hird’s] rights and interests.”

Simply put, without orders impacting the show cause notices, is there a prospect Essendon and Hird might decide the further significant expense of the litigation is not warranted?

Alternatively, the judge might seek an assurance from the lawyer for the players that they do not intend to participate in the litigation at any stage, and allow the case to proceed if that assurance is supplied.

Other matters to expect (or not) are set out below. [Note: Expect the unexpected! This is litigation.]

WILL THE URGENT INJUNCTION BE HEARD TOMORROW?

ASADA does not want this. It wants proper submissions by both parties before a hearing takes place. Essendon has sought to address this question in its submissions. However, ASADA wants the twin requirements to be fully met of whether Essendon and Hird have a prima facie case (meaning a decent case on its face) and whether the balance of convenience justifies the granting of an injunction (which requires the court to balance a range of factors before exercising its discretion to grant or deny the injunction).

It is possible the Court will not determine this question tomorrow, particularly if it becomes sidelined by questions about the impact of the players not being involved in the case.

WILL THE PARTIES BE REQUIRED TO FILE A STATEMENT OF AGREED FACTS?

ASADA is happy for this to occur, so long as it does not hold up the litigation. Essendon and Hird would prefer to dispense with this, and suggest instead that they file more court documents (pleadings) outlining their position.

The parties profess to be in heated agreement about the need for urgency. However, their preferred methods differ. Justice Middleton will have considered this beforehand and will likely offer his own views about how he wants the case to proceed.

WILL ESSENDON AND HIRD OBTAIN THE DISCOVERY THEY SEEK?

This is unlikely. The request for documents looks too broad, and ASADA is likely correct that this could delay the process. There are also policy questions about whether ASADA should be forced to disclose documents which Essendon and Hird would otherwise not be entitled to receive. The case is for ‘judicial review’ of subject matter leading up to a decision. One would not typically expect wide-ranging discovery in this context. [The difficulty is that it may be important to Essendon’s and Hird’s case (e.g. evidence of joint decisions between the AFL and ASADA to find certain ‘smoking guns’ in such documents).]

WILL ASADA AGREE ITS INVESTIGATION WITH THE AFL WAS “JOINT”?

No! Contrary to reports (yes, that’s you AFL 360 on 26 June), ASADA’s submissions do not suggest its investigation did not involve collaboration with the AFL. The co-operative nature of the arrangement is acknowledged.

However, such collaboration, according to ASADA, occurred under the auspices of the AFL and ASADA each having independent power to investigate. Reading between the lines, their argument will be that – in the circumstances – it was more efficient to proceed together rather than apart.

ASADA also says though that it “wants to avoid the nomenclature of ‘joint investigation’” on the basis that this does not mean anything. ASADA says further: “What will be decisive is whether the particular conduct by ASADA which is impugned by Essendon and Mr Hird is ultra vires (whether or not that conduct answers the description of a “joint investigation”).”

THE JUDGE REFERRED TO THE PROSPECT OF A MEDIATION IN HIS 17 JUNE 2014 EMAIL. IS THIS LIKELY?

No. Neither Hird nor Essendon have suggested they would like to mediate. ASADA is open to the prospect so long as it does not hold up the case.

Notes:

‘Evidence’ means the facts and information to be relied on by a party in support its claim. In commercial litigation, this will often be presented in affidavit (written) form.

The affidavits (evidence) filed by the parties to date have not yet been made available by the court for inspection because they have not yet been ‘read into court’ (relied on in an open court room). Once this happens, the affidavits may be made publicly available subject to the sensitivity of their contents.

Cross-examination of deponents to affidavits is the method by which the other party can test their contents. Cross-examination does not usually occur during preliminary hearings, or even interlocutory hearings (e.g. the urgent injunction sought by Essendon and Hird). Cross examination typically occurs at the final, substantive hearing of the dispute (trial).

A ‘Statement of Agreed Facts’ is a document produced jointly by the parties which sets out, as the title indicates, ‘agreed facts’. Such a document can help the judge understand what is uncontroversial, and what is in dispute. It can also introduce efficiencies by eliminating the need for lengthy evidence by the parties about uncontested matters. Here, one would expect key elements of the chronology to be agreed (e.g. when the interim report was published, when the show cause notices were issued). However, the characterization of those matters is unlikely to be agreed (e.g. the fact ASADA conducted an investigation will be agreed, but not whether it was ‘joint’).