Closing submissions are the last opportunity for the parties to persuade the judge that their case should prevail. The stakes have risen, the veneer of gentility begins to fray and the rhetoric rises to new heights.
In the case of Mr Neil Young QC, appearing for Essendon Football Club, his opponent’s submissions had become “fanciful”, “odd”, “on the wrong track altogether” or an argument erected “on a very flimsy foundation”.
Mr Tom Howe QC, dormant like a dozy lion during the evidence phase (likely because any personal devotion to the task of cross-examination might have conferred the facts with a significance ASADA sought to avoid) sprang to energetic life in closing. Aspects of the Applicants’ arguments were said to be “ridiculous”, in one case an “Alice in Wonderland theory” and a reference to Essendon’s “abysmal governance” found expression again.
Missing almost entirely from the oral closing submissions was a reference to any areas of factual contention. This was not a surprise because Justice Middleton observed in the course of closing submissions that the factual issues might only have a limited role. Tom Howe QC agreed, speculating that the case was likely to collapse to a few factual issues, and that indeed there might be none.
This is not to say that the facts are irrelevant. However, the key matters are not in dispute or, if so only at the margins, or they otherwise found expression in credible documents even if ASADA personnel denied them under cross-examination.
Facts unlikely to be ultimately controversial include –
- Interviews of players and support staff were conducted by representatives of both the AFL and ASADA;
- The AFL’s coercive powers were relied on by ASADA to bolster the strength of its investigative process;
- The investigation was described as “joint” by ASADA personnel;
- ASADA dealt extensively with Deloitte sometimes with AFL personnel present but also without AFL personnel present (Deloitte was contractually engaged by the AFL to facilitate forensic parts of the process such as the interrogation of data on telephones); and
- The Interim Report was supplied by ASADA to the AFL in the knowledge that the AFL intended to use it for disciplinary purposes.
Further, it seems the Applicants’ written closing submissions have sought adverse credit findings against ASADA’s former CEO, Ms Aurora Andruska, because Mr Howe was moved to submit words to the effect: “The former Chief Executive Officer may have found the experience in the witness box to be a difficult one, but this does not deserve such adverse findings as contended for by the Applicants”.
Which party has left court with the wind in their sails?
It is bad luck as a litigant to speculate about who will win and who will lose. Litigators also recognize that even the most winnable of cases can fail. So the common language when finishing a trial is: “Which side would you rather be on?”
My answer here is: I have absolutely no idea!
Each side would have left court comforted to a degree by the judge’s observations.
The high points for Essendon and James Hird
First, Justice Middleton from the outset has been clearly concerned to look after the welfare of the 34 players issued with show cause notices by ASADA. In opening submissions, Justice Middleton expressed reservations about whether he could make positive orders benefiting the players (given they are not parties to the proceeding) if he otherwise found that relief should not be ordered for the Applicants on discretionary grounds. Yet by the trial’s conclusion, these concerns were apparently alleviated up authorities provided by David Grace QC on the players’ behalf.
David Grace submitted that if there was an occasion to consider grant of discretionary relief, the impact on the players was a very strong influence and there was nothing in the evidence undermining their position. Further, from the cases three principles emerged in relation to the players as third parties seeking to support the relief of the Applicants. First, third party rights must be considered. Secondly, the application of principles should not be restricted to negative impacts, but can relate to positive impacts. Thirdly, this was not restricted to interlocutory injunctions.
Secondly, Justice Middleton made repeated observations indicating a preference for an investigative process in separate stages, rather than a joint investigation.
Thirdly, whilst carefully couched in the context of “if” he were to make final orders, Justice Middleton appeared minded to set aside the show cause notices if he found the ASADA investigation to be unlawful. He also indicated to ASADA that it might not be possible simply to use the investigative material again. He also counseled ASADA from simply re-issuing the show cause notices (if they were set aside) without ASADA’s CEO making a fresh decision about the appropriateness of doing so.
Fourthly, Justice Middleton did not appear interested in exploring any discretionary reasons for refusing to grant relief if he found the ASADA investigation to be unlawful.
The high points for ASADA
First, much of the challenged conduct by the Applicants is difficult to characterize in clear terms. For instance, Justice Middleton was plainly exasperated by the nomenclature used by Essendon and James Hird to describe the conduct at issue. In particular, the Applicants’ determination to use the term “joint investigation” led to the judge saying to Hird’s Counsel in the morning: “Whatever you label it I have to work out what it means. You can call it ‘joint’ until you are blue in the face but I have to understand what it means.”
Secondly, there is no express prohibition in the ASADA Act or NAD Scheme against a joint investigation. This means the Applicants’ contentions are derived from a narrow construction of the relevant legislation (more on this below).
Thirdly, the legislation expressly contemplates ASADA’s disclosure of information to a sporting administration body such as the AFL. Justice Middleton identified this as an issue for the Applicants in his exchanges with Neil Young QC. The judge took Mr Young through his own construction of clause 4.21 of the NAD Scheme. Concluding this analysis Justice Middleton said: “So what’s wrong with disclosing to a sporting administration body such as the AFL? It is subject to the Privacy Act. It will use it for its own purposes?”
The judge’s construction of clause 4.21 went like this. First, the CEO may disclose information relating to a person in connection with a possible anti-doping rule violation by an athlete or support person to a sporting administration body (and also to the Australian Federal Police, Customs, and other government authorities). Secondly, this should be read in connection with section 13(1)(g) of the ASADA Act which permits such disclosure if it is “in connection” with an ASADA investigation. Thirdly, the AFL is subject to the National Privacy Principles so that it need not provide an undertaking as required by clause 4.21 of the NAD Scheme before such information is supplied.
Fourthly, Justice Middleton recognized that the legislative requirement that a sporting administration body must ‘cooperate’ with ASADA could represent a hurdle for the Applicants. He also identified this as an issue for the Applicants in his exchanges with Neil Young QC.
Where did the parties’ cases end up in closing submissions?
The territory of debate appears to have narrowed significantly.
The ‘unlawful’ information disclosed by ASADA to the AFL was largely confined to a discussion about the fate of the transcripts of player and support staff interviews. There was little if any mention of the database maintained by the AFL, or the information obtained by Deloitte. The stakes seem to be high in relation to these interview transcripts. Essendon and James Hird appear to hold a view, whether reasonable or not, that without these transcripts the pillars of the show cause notices will collapse.
ASADA’s position was that even if the show cause notices were set aside, this would not disturb the legality of the transcripts or ASADA’s ability to use them in future. Its argument went like this:
- We can direct that the AFL provide these transcripts to us.
- This is because the AFL used its legitimate coercive powers to cause the person to attend the interview.
- The statements made by that interviewee were disclosed both to ASADA and the AFL.
- This was not a case of an improper ‘disclosure’ by ASADA to the AFL under the Act. To suggest this, according to Tom Howe QC, would be “perverse”.
- This is because both the AFL and ASADA were recipients, simultaneously receiving the information from the interviewee in compliance with his contractual arrangements with the AFL.
Essendon and Hird’s position, via Neil Young QC, was more generally expressed. That is, if the ASADA investigation was held to be unlawful such that the AFL representative should not have been in the room, then all material obtained by that unlawful process should be prohibited from use. Otherwise, according to Mr Young, it would “render nugatory” any prohibition because the investigator could overcome the issue by “just inviting people in”. The judge said in response to this submission: “I understand”.
Why the Applicants say the joint investigation was unlawful
The primary focus of Neil Young’s closing submissions was that ASADA’s actions were beyond power for the simple reason that there was no statutory authority for the action taken. In his submission, “there was an absence of a positive power to support what was done”.
Mr Young sought to distinguish this from an “implied prohibition”, likely because this characterization would cause the Applicants to walk into a minefield of legal authorities requiring a very delicate dance to circumvent them. He later referred to ASADA’s desire to focus on this issue as a “straw man”.
It was further contended by Mr Young that:
- The AFL’s powers could not be used to compel attendance before ASADA, but only before the AFL.
- The AFL had to be at the interview because there was nothing to compel the players from attending before ASADA.
- Once at the interview, ASADA had crossed the line under the Act.
- Further the issuing of show cause notices is the only process contemplated by the ASADA Act, such that ASADA’s supply of the interim report to the AFL (for another purpose such as AFL disciplinary action) would not be covered by it.
- There was no evidence of a considered decision within ASADA or by its CEO about the use of the material. It just developed that way. [The Applicants apparently later abandoned this point on the basis that it was new and they would otherwise have had to amend their Statement of Claim.]
- The ASADA Act sets out a strict protective regime.
- The only investigation by ASADA must be to the exclusion of the sporting administration body.
- The sporting body is to advise of any rule breach and to cooperate with any ASADA investigation into the matter.
- There was no relevant “connection” between ASADA’s investigation and the supply of information to the AFL (refer s.13(g) ASADA Act) because such an investigation could only concern possible anti-doping rule violations whereas the AFL’s purpose was to rely on management failings within the Essendon Football Club. In Mr Young’s words: “The relevant connection was mistaken”.
- As for the language of “co-operate”, this is very different from sitting in an interview room and receiving information as and when it arises. The sporting body should not participate in the investigation as a fully-fledged investigator.
- One must interpret clause 4.21 of the NAD Scheme narrowly. According to Mr Young: “ To give [non-entry information] to a sporting body for use at any time, for any purpose, makes a mockery of surrounding provisions and the entrusted person regime”. He added that highly confidential information would be subject to no protections at all. There would be no protection for surrounding information. One could not subscribe this intention to Parliament.
- One must start with the Australian legislation when interpreting the law, and the International Conventions relied on by ASADA are subsidiary. Parliament is not bound to enact every part of a Convention.
- Mr Young concluded that ASADA “should not have let the AFL into the tent”. He then asked rhetorically ‘Why did it happen?’ and responded: “It was the only way ASADA could borrow compulsory powers. [An ASADA representative] had expressed concerns in February 2013 that it would be unlawful for the AFL to be in the room.”
Why ASADA says the investigation was lawful
Tom Howe QC commenced on the basis that it was said against his client that the applicants do not need to contend for “negative implications” (which is essentially an implied prohibition) but that they just need to show there is no power in the legislation for the path ASADA took.
He disagreed with this characterization. He said that the Applicants seek to have read into the legislation the language “other than a joint investigation” when that language does not presently exist. Mr Howe added “it’s not simply a case about absence of power”.
Mr Howe also referred to provisions of the NAD Scheme (not mentioned by Mr Young in oral closing submissions) such as clause 1.03 which refers to the exercise of ASADA’s powers in response to requests from sporting administration bodies. That clause, he submitted, specifically contemplates that the sporting organization provide that information to ASADA.
Clause 1.03(2) of the NAD Scheme, for example, provides: The CEO is authorized to use information about an athlete or support person that was given to the ASADA or is given to the CEO by a sporting administration body as if it were information that was obtained by an investigation by the CEO under the NAD scheme if the CEO requested the sporting administration body to provide, or obtain and provide, the information.
Mr Howe also observed that a “text based approach to statutory construction is in strong ascendancy” citing High Court authority in this regard. As he put it, “the language of legislature is the surest guide” such that one should only have very limited regard to extrinsic materials. He further said that the High Court stands strongly against negative implications, and went on to explain the narrow conditions which must be satisfied for a prohibition or limitation to be inferred into the legislation.
These preconditions for implicit limitations were said to be, first, one must identify the precise purpose of provision. Secondly, one must have inadvertently overlooked an eventuality that must satisfy a purpose. Thirdly, one must identify the words the legislature should have included. Fourthly, the modification must be consistent with the wording adopted by the draftsman.
In the present case, Mr Howe said, if one were to apply the above approach in favour of the Applicants’ legal argument, one would need to clarify that whilst the legislation says that a sporting administration body must ‘cooperate’ with ASADA, such cooperation should stop short of a ‘joint investigation’ (a term which would then be defined). He described the negative implication here as therefore involving a profound rewriting of the legislation.
Mr Howe also submitted that a joint investigation conducted with the AFL would be distinct from, say, ASADA contracting with a stranger (such as a doctor) because it is “immediately apparent that the interests of sporting bodies and ASADA coincide”. This was particularly so in the case of suspected breaches of anti-doping procedures.
It was also suggested by Mr Howe that clause 2.04 of the NAD Scheme, by which sporting administration bodies are required to have rules in place which can be monitored by ASADA to ensure compliance, shows that the “legislature has declared the significance of this connection”.
He contrasted this to the more limited construction of this clause submitted by Mr Young for the Applicants. Mr Young’s contention was that these provisions did no more than suggest that sporting bodies should have such rules in place. Rhetorically Mr Howe asked: “If so, why should ASADA monitor and ensure compliance?” He added that the emphasis on compliance by the sporting body in the NAD Scheme was inexplicable if someone only need be concerned about “the policy in the back corridor, third door on the left” or about “only a dusty copy on the shelves of a sporting organisation somewhere”.
Mr Howe also speculated about what ASADA should have done if “ the AFL decided to enter into cozy and comfortable arrangements with Hird and Essendon despite abysmal governance”. In this respect he submitted, “You may have a policy but you sure as hell are not taking action”. In his view, these matters emphasized the nature of the connection contemplated by section 13(g) of the ASADA Act.
Section 13(g) of the ASADA Act provides a head of power as to what must be in the NAD Scheme and provides: “The NAD Scheme must authorize the ASADA to disclose information obtained during such investigations for the purposes of, or in connection with, such investigations.” [emphasis added]
Therefore, contrary to the narrow function of ASADA contended for by the Applicants, ASADA’s position was that it, and its CEO, have a strong role, not a neutered role, in connection with their anti-doping rules and compliance by sporting administration bodies.
Mr Howe also invoked the general principle in favour of investigative latitude in relation to the exercise of practices and procedures, such that the power should not be narrowly confined. He said that the investigator should have general latitude in this respect.
Justice Middleton seemed somewhat unimpressed by the principle of investigative latitude, and sought to distinguish it from the exercise of a joint investigation.
Mr Howe also drew the judge’s attention to the case of Boys v Quigley (as receiver and manager of Geneva Finance Limited) (2002) 20 ACLC 1,323; 41 ACSR 499 by which a receiver was able to draw on ASIC’s powers as regulator to conduct a public examination in order to bring a damages claim against the company’s auditors. He described this as the reverse of the current situation, but one in which the Full Court of the Federal Court determined that it was not unlawful for the receiver to take advantage of ASIC’s compulsory powers. In making this finding, the court had referred to the parties’ “coincident objects”. Observations were also made that it would be absurdly wasteful for the receiver to go it alone, and that this approach was clearly in the public interest. That said, Mr Howe also noted that the investigation was said to be “inappropriate and unwise”, but “nevertheless permissible”.
Mr Howe otherwise responded to Mr Young’s submission about the relevance of international instruments, noting that the WADA Code, for instance, was expressly referred to under the NAD Scheme as being relevant to the exercise of ASADA CEO’s discretion.
Referring to the WADA Code, in particular, he cited the requirement that support persons provide a conducive anti-doping environment as the “gravamen of the complaint against Hird”.
In conclusion, Mr Howe’s submitted that, despite ASADA not having coercive powers, it was regarded as a robust and integrated scheme. Further, the investigative function contemplated that there could be non arms-length dealings with sporting bodies.
As is apparent from the above, legal submissions of great dexterity were made on both sides of the fence.
Justice Middleton has reserved his decision and did not indicate how long he would take before delivering judgment.
Once he does so, he might seek further submissions from the parties on the question of relief and / or costs.
In the meantime, the parties will likely determine whether they will appeal if the judgment does not go their way. In the case of ASADA, there will no doubt be internal deliberations about whether ASADA genuinely has grounds to re-issue the show cause notices if they are set aside. If so, the question of an appeal might prove unnecessary.
Essendon and James Hird, however, are not in a similar position. For them, much will turn on the reasons for the decision, and the level of factual findings or discretionary conclusions. Factual findings and discretionary conclusions are much harder to overturn on appeal. Questions of law though, are easier to challenge.