Essendon and Hird Statements of Claim: One voice or a loose alliance?

By Natalie Hickey, July 4, 2014

Here we have a tale of two documents. Each of them is called a Statement of Claim. Each of them is filed on behalf of an Applicant (Essendon Football Club and James Hird) against the Chief Executive Officer of the Australian Sports Anti-Doping Authority (ASADA). And yet, the court documents are not the same. What do they tell us?

For those grappling with unfamiliar language when reviewing the online file available on the Federal Court website, here are some short definitions. An ‘Application’ is the originating process each party must file to commence a legal proceeding. It specifies the relief sought, and in an administrative law action contains some additional information about the claim as well. The ‘Statement of Claim’ is where the action is. This document is intended to provide the other side with notice of the case it must meet. It is a more useful source of information.

The task of interpreting objective information is, of course, speculative. Mindful of Georgina Schoff QC’s recommendation that an informed opinion should be based on the facts, let’s examine the structure of the two Statements of Claim.

First, the overall structure of each document is similar, and the language used to plead a number of paragraphs is very close. There has been collaboration, but the question for observers is ‘how much’? Based on the tighter logical structure of Essendon’s Statement of Claim which indicates a ‘paring back’ of text, it is possible (although by no means certain) that Hird’s team prepared its document first and then supplied it to Essendon’s team for review.

Secondly, the style of Essendon’s Statement of Claim is objective. The focus is narrow, intended to identify each building block to arrive at the logical conclusion that ASADA’s investigation was ‘ultra vires’ (outside its legislative power).   The short point from Essendon’s document is a claim that ASADA relied on the AFL’s powers (e.g. to compel players to give evidence, or to use the AFL’s allegedly broader investigative powers) to obtain evidence it could not lawfully acquire itself, such that the recent show cause notices issued to 34 Essendon FC players should be set aside as invalid or improperly issued.

By contrast, whilst Hird’s Statement of Claim leads to the same end result, its path is more emotive (for a dry court document anyway!). That Hird’s interview lasted approximately 9 hours and involved him answering more than 1300 questions is raised again (mentioned also during a recent directions hearing on his behalf).

Further, in Hird’s Statement of Claim alone, the language of “it was a purpose” of the alleged Joint Investigation that ASADA or its CEO compel Essendon players or support staff to attend interviews, respond to questions and to abrogate their common law right against self-incrimination, is used. This has a quality of alleging “intention” against ASADA’s motives, a tone that is entirely lacking in Essendon’s pleading. It is not surprising that Counsel for ASADA’s CEO sought that this be clarified at the last directions hearing (see report here).

Thirdly, of surprise in both pleadings, particularly in the case of Hird’s Statement of Claim given the strong language of ASADA’s alleged “purpose” is the lack of apparent primary documentary evidence in support of the Applicants’ allegations. The only cited supporting documents for the alleged Joint Investigation are media stories and a journal article by Brett Clothier, Manager of Integrity Services at the AFL.

Interestingly, Hird’s Statement of Claim refers to a 14 June 2014 interview by the CEO of ASADA on ABC Grandstand Radio on 14 June 2014 during which confirmation of a “joint investigation” was reportedly made. Essendon’s document does not refer to this. This means Essendon’s Counsel either formed the view that this observation was not relevant (being an ex post facto observation made by a person not sitting in the CEO chair at the relevant time), or that this is evidence to be utilized at another time.

Hird’s document also bluntly states that the Applicant is unable to give particulars of [the alleged February 2013 agreement between the AFL and ASADA] until ASADA gives discovery. Essendon’s Statement of Claim takes a more indirect approach to this issue (arriving with a view to arriving at a similar result).

Fourthly, evidence foreshadowed at trial, in the case of Hird’s Statement of Claim anyway, might well go to the heart of whether the affected 34 Essendon players should be joined to the action. Paragraph 34 of Hird’s Statement of Claim concerns only what transpired at interviews with those players and other players who did not receive show cause notices (the specified number is ‘48’ Essendon FC players), and purports to go into the detail of what transpired. If ASADA’s CEO does not admit that paragraph, then Hird would be strictly required to call all 48 players to verify the contents of that claim. Essendon’s Statement of Claim does not refer to these matters.

Based on the level of detail about the investigation process as it affected him, there is no question Hird will be required to testify at the trial, should it proceed.

Given the above similarities and differences, do the Applicants speak with one voice? The answer is ‘yes’, to a degree. However, there are some important differences in approach and tone. Based on this, each Applicant is certainly receiving separate and independent advice, and making choices specific to their own individual circumstances. Presently, those circumstances are aligned.