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An armchair guide to delivery of Essendon v ASADA judgment

Justice Middleton will deliver his reasons for decision at 1.30 pm on Friday, 19 September 2014. The judgment concerns a case brought in the Federal Court of Australia by Essendon Football Club, an Australian Football League team, and its coach James Hird against the Australian Sports Anti-Doping Authority (ASADA). The applicants have sought that ASADA be restrained from pursuing show cause notices to 34 existing and former Essendon players for alleged anti-doping rule violations. They claim ASADA conducted its investigation unlawfully and that it should be held invalid.

If your exposure to the law is limited to watching episodes of Law & Order, Rake or Boston Legal and you are interested in when the Essendon v ASADA judgment might become available, then this post is for you! This explains how judgment will be handed down.

First, the process will be short. Secondly, all matters are likely to be determined tomorrow.

The process will be short

Each jurisdiction adopts a different method for delivering judgment. For instance, the South African judge in the Oscar Pistorius case read out her judgment word for word. The process took over a day. That will not happen here in Victoria.

Justice Middleton will not read his reasons out loud in court tomorrow. In fact, the whole process could take less than 15 minutes. After reading out either his orders or a concise paragraph or two explaining which party has won, the judge will then typically say: “I publish my reasons”. Then the court rises, he leaves, and that is it.

The Associate hands to the parties a copy of the judgment. There might be a doorstop media interview by the parties, but usually they will say little other than “we need to digest the judgment”.

The parties then typically return to barristers’ chambers or a local coffee shop, and commiserate or celebrate appropriately. Often, this is when finishing touches are given to public relations’ messages.

Meanwhile, journalists interested in the case need to work out how to get their hands on the judgment so they can read it and turn it into copy before their afternoon deadlines.

So, whilst the process will not involve tears, tantrums or histrionics, the outcome is obviously deeply interesting to many people.

All matters are likely to be determined

In many cases when reasons for decision are provided, the judge will not pronounce final orders but will hear from the parties in relation to things like final relief and costs.

Here, however, by an email to the parties dated 15 September 2014 from Middleton J’s Associate, the judge stated his plans to pronounce final orders including costs. The email also stated:

If there is any reason that costs would not follow the event, would the parties please inform the Court by no later than 4:00pm on Wednesday 17 September 2014 of this fact.”

This means that the “winner takes all”. The losing party must pay the winning party’s costs. The winning party will therefore be entitled to a proportion of costs actually incurred.

What can we learn from Middleton J’s email?

When a case is dismissed, only limited orders are made. For instance, the court will order that the application be dismissed and that the applicant must pay the respondent’s costs. In other words, such a judgment lends itself to orders requiring no further input from the parties.

When the applicant wins, the judge often needs to make a complicated suite of orders to arrive at appropriate relief. The more complicated the orders, the more likely that the judge will seek the parties’ input before making them.

We can therefore infer from the 15 September email from Justice Middleton’s Associate that his Honour:

  • will dismiss the applications brought by Essendon and James Hird; or
  • has such a clear idea of the relief required to give effect to his judgment, he does not need to hear from the parties.

How quickly before the judgment will be available to the public?

Normally, it can take up to a few days before a judgment appears on Austlii, a database containing copies of court decisions. This is because the judge must proof read the document before it is ready for publication. There may also be confidential information requiring the parties’ input before the reasons are available for public consumption.

However, given the diligent approach of the judge, and the public interest in this case, it would not surprise if judgment is available to the public shortly after it is handed down. The judge has also not indicated he will need the parties’ help prior to publishing the judgment in his Associate’s 15 September email.

Here is a link to the Federal Court Essendon online file where a copy will likely be made available shortly after judgment.

 

 

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