Round Two: How might a Full Court approach James Hird’s appeal?
MELBOURNE, AUSTRALIA – OCTOBER 02: James Hird walks out of meetings and is questioned by media at True Value Solar Centre on October 2, 2014 in Melbourne, Australia. (Photo by Robert Prezioso/Getty Images)
The coach of Essendon Football Club, James Hird, has appealed the Federal Court’s decision dismissing his claim against the Australian Sports Anti-Doping Authority (ASADA). Essendon has decided not to appeal. This post examines some of the factors potentially relevant to a Full Court’s analysis.
Let there be no doubt. The Full Court faces an unusual situation.
This was never a ‘normal’ legal proceeding. Normally, when people sue it is to vindicate their own legal position. Class actions are an obvious exception. Class actions are representative proceedings where a nominal plaintiff commences litigation on behalf of an affected class of people. There are court rules and procedures for dealing with class actions.
The litigation brought by Essendon and James Hird was in neither category. Perhaps it could best be described as a ‘quasi-representative’ proceeding. True it is, there was a level of self-interest involved. Without any interest, neither applicant would have had standing to sue. However, the primary purpose of the litigation, and the principal relief sought, was to vindicate 34 Essendon players who had been issued with show cause notices by ASADA for possible anti-doping rule violations.
The unusual nature of this litigation led Justice Middleton to tread cautiously. He sought input from the players, even though they were not parties to the litigation. He ensured they had lawyers at Court. He asked the players’ lawyers whether they supported the litigation. At the time, they did.
The impact of going it alone
Judges do not assess the law without context. Most will try to work out what involves a just result. It is almost impossible to construe ‘the law’ in a vacuum.
Consider this. You are a judge of the Full Court of the Federal Court. It is plain the applicants no longer speak with one voice. Only one applicant has decided to appeal. How then can you even consider making third party orders affecting the players (itself unusual and controversial orders) if even the applicants cannot agree that this is the right approach?
Furthermore, if James Hird is no longer Essendon’s coach but is a private citizen when his appeal is heard (noting that at the time of writing he remains the coach), will the Court accept that he continues to represent the players’ interests?
James Hird’s statement explaining his decision to appeal stated that his “lawyers and the Essendon Football Club lawyers firmly believe that the investigation was conducted unlawfully and that an appeal will be successful”.
First, let us assume James Hird did not mean to suggest the legal advice was so unqualified. Secondly, was such legal advice provided before or after he decided to go it alone?
The task before the Full Court
It is understandable James Hird seeks to vindicate his personal sense of injustice. However, the Court’s role is to provide practical outcomes to real life disputes.
Accordingly, before the Full Court begins analyzing whether the trial judgment was wrong or not, it must ask the appellant: “What do you want”?
For instance, is James Hird appealing to vindicate his own position, or those of the players?
James Hird met this question in his media statement, asserting his purpose was to “vindicate the legal rights of the EFC and its players”. Yet, it has been separately reported that some senior players met with James Hird before he appealed and asked him not to do so.
Accordingly, the players’ earlier endorsement of the litigation, something Justice Middleton sought before he heard the case, may no longer exist. At the least, their views may be divided.
How the Full Court might seek to satisfy itself of the players’ position is not clear. One option is to allow the players’ legal representatives to appear as ‘friends of the court’ to present their views.
If even some of the players do not support the appeal, James Hird’s ability to seek third party orders might disappear.
That said, orders seeking to vindicate his own personal position would likely remain available.
Utility of relief
It is therefore relevant to assess the nature of the relief sought in the Notice of Appeal.
First, declarations are sought that the ASADA / AFL investigation was beyond power, breached confidentiality obligations and was unlawful. Such orders can be made independent of any other order. In other words, it is conceivable a court could decide the trial judge erred, set aside the judgment, make declarations… and the players would still face the show cause process.
Secondly, James Hird seeks an injunction preventing any show cause notice being issued against him arising from or relying on information obtained in the alleged Joint Investigation.
This would not preclude a show cause notice being issued relying on information obtained by ASADA independently of the investigation.
The proposed order seems vague and broad. It does not specify the documents or information ASADA could not rely upon. Based on the language of ‘arising from’, it would encompass the admissions made by James Hird in his settlement agreement with the AFL on 27 August 2013 because that agreement was a consequence of the Interim Report.
Thirdly, James Hird seeks an order setting aside the 12 June 2014 show cause notices. However, ASADA has already said it plans to “reissue” these notices in a form containing additional evidence. Whether or not these would be fresh notices or amended notices remains to be seen. If fresh notices, such an order would be unnecessary.
Fourthly, James Hird also seeks an injunction preventing any show cause notice being issued against the players arising from or relying on information obtained in the alleged Joint Investigation.
How though does that sit with his announcement not to seek a stay of the show cause notice process in relation to the players? In his media statement, James Hird added: “The players and ASADA will be able to continue with the show cause process whilst a full court deals with the legality of the investigation”.
Does that mean he intends to abandon this proposed order? Otherwise, if ASADA proceeds to issue show cause notices before the appeal is heard, the court might decline to make such an order on the basis that the ‘horse has bolted’.
Finally, James Hird seeks a permanent injunction restraining ASADA’s CEO from using any information obtained in the alleged Joint Investigation for any purpose under the Act, the Regulations and the NAD Scheme.
On its face, this proposed order seems hopelessly broad, although James Hird would likely argue, as was done at first instance, that it would be wrong if information obtained unlawfully could then be used later at all.
Full Court powers
If the Full Court finds that the trial judge erred, what happens next is an open book.
Section 28 of the Federal Court Act of Australia 1976 gives the Full Court very broad powers. It can affirm, reverse or vary the judgment appealed from. It can make any order it thinks fit, or refuse to make an order. It can set aside the judgment and then remit it back to the trial judge. It can substitute its own judgment. The list goes on.
Consider this. Until now James Hird’s case has been all about the players. He presented his evidence and submissions in a manner not intended to promote his own position. Rather, his personal experience (e.g. the AFL / ASADA interview of him) was used to evidence the process the players experienced as well.
If, however, the Full Court finds that the trial judge erred but is reluctant to make third party orders (because, say, the players do not want them), the question of James Hird’s personal circumstances remain.
However, James Hird’s position is not the same as the players. Justice Middleton did not need to consider this in his judgment. For instance, James Hird made a number of decisions (e.g. his 2013 litigation against the AFL he later retracted, his later settlement with the AFL and so on) which would lead to questions of acquiescence or estoppel should he seek to vindicate his own position.
It is therefore conceivable that a Full Court could set aside the trial judgment, and then remit the matter back to Justice Middleton to reconsider whether discretionary factors concerning James Hird justify making the orders relevant to him.
Next steps
James Hird’s lawyers have applied to have the Full Court hear the appeal urgently. They suggest the week commencing 27 October 2014.
The orders proposed, which include outlines of argument and submissions, are set out here.
This period is outside the next November sitting period for the Full Court. However, it is unlikely the week of 27 October would have been suggested without prior input from the Court.
The Social Litigator 
2 Responses to “Round Two: How might a Full Court approach James Hird’s appeal?”
Excellent, as always.
I’ve never understood how Hird had standing in the first place. His initial papers plead reputational harm and harm to his outside business interests, but that seemed weak to me. ASADA, presumably with bigger fish to fry, never really attacked that. Could the Full Fed Crt, or ASADA in its responsive papers, re-visit the issue of standing?
Where I’ve come to on this is that James Hird is likely to have standing to sue. He was affected by the Interim Report, the legality of which is at issue. However, this is distinguishable from the Court’s willingness to make third party orders affecting the players. The Club was the more appropriate vehicle for this. It follows that a Court might only – if it found the trial judge erred – contemplate the prospect of relief for James Hird alone. There, however, significant discretionary difficulties exist because of his previous decision to compromise past litigation, and so on.