The directions hearing before Justice Kenny on 9 October 2014 has supplied both a timetable and insights into the forthcoming appeal. This post will outline the schedule and what we have learnt about James Hird’s strategic approach.
When: 10 November 2014 at 10.15 am (for one day)
Where: Federal Court of Australia, 305 William Street, Melbourne (click here the night before the hearing for court location)
Rachel Walsh (Junior Counsel)
Nick Harrington (Junior Counsel)
Peter Hanks QC (Senior Counsel)
Australian Government Solicitor (Solicitors)
Daniel Star (Junior Counsel)
Sue McNicol QC (Senior Counsel)
Tom Howe QC (Senior Counsel)
* Sourced from current appeal submissions and judgment. Subject to change.
Not parties to the proceeding. The players represented by Tony Hargreaves have advised they do not want to be parties nor do they want to be heard at the appeal. The players represented by Robert Stary Lawyers do not seek to be made parties to the appeal: Refer paragraph 13 ASADA submissions.
Contrast the players’ position to the first instance hearing, when they made written submissions and were represented by David Grace QC during the hearing. Now, it seems the bulk of the players do not wish to participate at all in the appeal. The players represented by Robert Stary Lawyers have not yet indicated whether they seek to be heard. Even if they are not parties this could occur as ‘friends of the court’.
The PRESIDING JUDGES
The Federal Court website has now confirmed that the presiding judges will be Justice Kenny, Justice Besanko and Justice White. Here is a little information about each of them.
Justice Susan Kenny is one of the most senior Federal Court judges in Australia. Appointed on 16 October 1998 (previously a judge of the Court of Appeal of the Supreme Court of Victoria) she is based in Melbourne. She was Associate to Sir Ninian Stephen, then a Justice of the High Court of Australia, for two years from 1979, after which she commenced practising as a barrister. As a barrister her Honour specialised in public law, amongst other things. ‘Public law’ is one term describing the legal subject matter of this appeal. Justice Kenny is a member of the Advisory Board of the Centre for International and Public Law. The Age has reported on a previous anti-doping matter she dealt with.
Justice Anthony Besanko was appointed a Federal Court judge on 3 April 2006 (previously a judge of the Supreme Court of South Australia from 2001). He is based in Adelaide. Justice Besanko previously practised at the South Australian Bar specialising in administrative law, amongst other things. ‘Administrative law’ is another term describing the legal subject matter of this appeal. Last year Justice Besanko received media attention in Adelaide as the judge who gave “Adelaide’s now world famous death row chickens” a “stay of execution“. Despite being granted a lifeline by his Honour, further traces of salmonella were found in the 4000 fancy birds and under the unfortunate headline “rare chooks get the chop“, it was reported they were ultimately destroyed.
Justice Richard White was appointed a Federal Court judge on 31 August 2013 (previously a judge of the Supreme Court of South Australia from 2004). He is based in Adelaide. A former member of the Legal Practitioners Disciplinary Committee when a member of the South Australian Bar, Justice White received media attention in Adelaide in 2012 for his admonishment of a lawyer who reportedly turned up to Court unprepared to argue his client’s case that day.
The process of deliberation by a court of appeal has until recently been opaque. However, the memoirs of recently retired High Court judge Dyson Heydon has lifted the veil of secrecy, at least to a degree. Here is a report of his own somewhat critical approach to the judicial conference, which can form part of the decision making process by an appellate court.
Analysis of Expedition Judgment
Justice Kenny’s judgment provided no insights into the court’s attitude to the ultimate appeal. Nor should it. Her only task was to decide whether the appeal should be heard urgently or not. However, the judgment showed that once again the interests and welfare of the players are of paramount concern to the court.
Her Honour commenced her judgment on the basis that ordinarily this appeal would not be heard until next year. She also observed that ASADA did not oppose the application for a speedy appeal.
In fact, ASADA had tried to take a bet each way. On the one hand, ASASDA said it did not oppose a speedy appeal but had a problem with the dates supplied due to Counsel availability and the need to prepare properly. On the other hand, ASADA pointed out that this was not really an appeal deserving urgent attention.
Were it any other case, the strict legal basis on which ASADA submitted that this was not an urgent case might have found favour. No one was about to be deported unless orders were made stopping officials from exercising their statutory power. Money was not about to be transferred overseas unless a bank account was stopped at once. In fact, the players’ desire to progress the show cause process meant that the practical urgency of any final order had fallen away.
However, ASADA had likely read the tea leaves and worked out that the Federal Court was never going to drag its feet over this matter. One only needed to see the unprecedented example of a Full Court directions hearing being the subject of live blogs on mainstream media to appreciate that all eyes are presently on the court. The Federal Court understandably can show case its ability to be flexible, fast and efficient when dispensing justice.
The date arrived at was a compromise. It was later than what James Hird’s team wanted. It was earlier than ASADA’s preferred position. All in all, it gives the parties a month to get sorted, which is reasonable in the circumstances.
Interestingly, in the judgment, once again the focus was on concern for the players. Middleton J had also taken this approach in the lead up to the first instance hearing. Indeed, the welfare of the players was the primary reason given for expediting the trial.
Justice Kenny said:
“Essendon players and personnel involved or potentially involved in the investigation have been subject to the anxieties, uncertainties and pervasive concerns that an investigation of this kind might reasonably provoke for a significant time. Based on the respondent’s current intentions, the 34 Players, who originally received the Notices of possible anti-doping rule violations under cl 4.07A of the NAD Scheme, are shortly to receive revised notices, with a view to recommencing the process of determining the allegations against them of possible anti-doping rule violations. In this event, they will continue to be subject to these anxieties, uncertainties and concerns for some time yet. The potentially serious consequences of the statutory process for the 34 Players must be borne in mind. Public statements by Essendon and the players’ association regarding the investigation and the need for it to be concluded as soon as possible do not detract from the gravity of the consequences that may be faced by the 34 Players.”
Justice Kenny was less convinced by the prospect that James Hird might receive a show cause notice himself, relying on ASADA’s submission that he faced no imminent prospect of such action. However, the impact of the outcome on his professional reputation did justify an expedited hearing:
“Mr Hird is evidently concerned in the investigation and its on-going effect on his reputation, including his professional and business reputation. Furthermore, like the 34 Players and other Essendon personnel, if the investigation is relevantly lawful, it seems that he can be obliged to attend further interviews and answer further questions fully and truthfully, or face possible sanction by the AFL.”
Finally, the interests of public administration justified a swift hearing:
“If this appeal is not heard at the earliest convenient date, then there is a detriment to good public administration, either because the investigation, though lawful, continues under a cloud of uncertainty pending the determination of the appeal, or because the investigation is held to be an unlawful exercise of statutory power, as the appeal seeks to establish.”
A link to Justice Kenny’s judgment is here.
Appeal strategy: Becoming a small target
The Notice of Appeal was originally a broad-brush attempt to say that everything in the first instance judgment was wrong. This approach gives the appellant room to move as strategy develops.
As Justice Kenny observed (see Judgment at ), James Hird has now abandoned a number of appeal grounds, particularly his claim that ASADA’s conduct was done for an improper purpose. Middleton J had found that the interim report was prepared by ASADA for a proper purpose and within power. Those findings will now stand.
This means the appeal will be narrowly targeted to the question of whether the ‘joint’ investigation was lawful or ultra vires, based wholly on questions of statutory construction.
James Hird will also not put in issue any factual finding.
What does this mean? First, it has the practical advantage of limiting any appeal to one day. This was important for James Hird to get his expedited appeal over the line.
Secondly, it prevents a messy analysis of factual findings. At first instance there might have been some tactical advantage in airing everyone’s laundry in an attempt to persuade the judge that ASADA had done something wrong. Certainly, this tactic was pursued.
However, with that battle lost, the opposite is now the case. The factual findings are unhelpful. The appellant’s goal will be to avoid any discussion about the facts. Technical legal arguments about powers under the ASADA Act will be intended to carry the day.
Of course, if the technical legal arguments win, discretionary considerations remain. The facts must be considered when deciding whether or not any orders should be made.
That may be so, but if James Hird manages to persuade three judges of the Full Court that ASADA acted outside its statutory powers, this will be legally significant and justifiably regarded as a win, no matter what else might follow.
One expects his legal team is taking the approach “One day at a time”. In other words, if we have to worry about the facts again down the track, it means we have won the day on key legal arguments in the appeal.
For those keeping an eye on next steps, here are remaining key steps in the parties’ pre-trial schedule
- ASADA file and serve any Notice of Contention on or before 4.00 pm on Thursday, 16 October 2014. [The Respondent to an appeal files this document if they have any issue themselves with any part of the first instance judgment.]
- The parties must undertake administrative steps between 17 October and 21 October concerning the preparation of appeal books containing key documents.
- Not later than 4.00 pm on Friday, 24 October 2014, James Hird file and serve on ASADA its outline of submissions and a chronology, together with a list of the materials it requires to be included in Part C of the Appeal Book.
- Not later than 4.00 pm on Friday, 31 October 2014, ASADA file and serve on James Hird its outline of submissions, together with a list of materials it requires to be included in Part C of the Appeal Book.
- Not later than 4.00 pm on Monday, 3 November 2014, each party file and serve a list of authorities and legislation.
- Not later than 4.00 pm on Wednesday, 5 November 2014, James Hird file and serve on ASADA any submissions in reply.
The Full Court has also set up an online publicly available file of court documents in this proceeding which can be found here.