The Federal Court of Australia’s experience with online case files is relatively new. Perhaps it found the adventure of a completely open, contemporaneous online file in the proceedings before Justice Middleton a little too exciting. That might explain why many substantive court documents for the appeal have only been made publicly available on the final business day before the hearing.
The question of the public’s ‘right to know’ has long been vexed. In New South Wales state courts the public has the right to know very little. In Victorian state courts, the public usually has the right to know a lot more. The Federal Court of Australia, like Switzerland, has historically adopted a middle path.
There are two potentially competing principles. In the right corner, there is a public interest in ensuring open access to the administration of justice. In the left corner, there is the need to protect litigants from the publication of potentially prejudicial and untested claims. If interested in the topic, a nuanced discussion about “Media access to court records and exhibits” can be found in the New South Wales’ Judicial Commission’s Bench Book.
James Hird’s arguments
The principal complaint in the Appellant’s submissions is that the judge examined the issues through a “contractual lens”  rather than pointing his gaze sufficiently at the statute.
Specifically, it is argued that the judge did not determine the nature and conduct of the investigation and why it was lawful under the ASADA Act.
True it is, the Appellant argues, the AFL might have broad contractual powers to investigate potential anti-doping rule violations (ADRVs). However, as the argument is put, the contractual arrangements between James Hird and the players, on the one hand, and the AFL on the other, have little to do with the source of legislative power for a joint investigation.
It was all very well for ASADA to recognize it could obtain a benefit it did not already have (stronger investigatory powers) by relying on the AFL’s contractual powers courtesy of its arrangements with players and Club support personnel.
However, the Appellant argues that the judge wrongly found this approach to be valid. The argument for invalidity is, amongst other things, that:
- There is no statutory basis permitting an agreement for a tandem investigation between ASADA and the AFL.
- To rely on section 22 of the ASADA Act (where ASADA’s CEO can do all things “necessary and convenient”) as a source for such power is simply wrong because this is said to be an ancillary rather than primary source of power.
- The concept of “co-operation” relied on by the judge as a key tenet of the scheme of the ASADA Act was said to be over-stated because when one analyses the clauses where the language arises, the circumstances where such co-operation might be warranted are narrowly stipulated.
- A correct interpretation of the ASADA Act envisages ASADA acting independently, and only looking to assistance from others in a structured and limited way.
Furthermore, it is suggested that the judge was wrong in not finding that ASADA had disclosed information in an unauthorized manner.
The reader is rhetorically asked: “Why was a non-ASADA party permitted in the interview room?” Clearly, the answer the Appellant seeks from the full bench is that this was wrongful, beyond power and impermissible.
Trying to work out the hand of the author can be an amusing past time. For those familiar with Tom Howe QC’s rhetorical flair during the proceedings below (who can forget “nonsense on stilts!“), perhaps these phrases indicate his close attention to the Respondent’s submissions: See the suggestion that there was “not a tittle” of evidence to support the Appellant’s submissions that the Appellant and players had been misled (at paragraph 12(g)); or that the Appellant had attempted to “reupholster” his case on appeal (at paragraph 13).
As for the substance of ASADA’s submissions, they approached the task of written advocacy in three ways. First, they sought to attack the integrity of the Appellant’s submissions by suggesting areas where they might be overstated or incorrect.
For instance, whereas the Appellant sought to argue that the judge failed to identify a source of power for ASADA’s conduct, the Respondent pointed to the judge’s reliance on section 13(1)(f) clause 3.07, read with s. 22 of the ASADA Act.
ASADA’s submissions also sought to point out instances where the Appellant referred to matters either conceded or not pressed. For instance, the Appellant had earlier confirmed it would not challenge any factual findings in the judgment, so ASADA ‘called out’ an apparent attempt to open the door on this.
Likewise, ASADA’s submissions sought to close the gates on any attempt to open up the proper construction of the AFL Code or the legality of the AFL’s own conduct, given that the Appellant had only sought to challenge the legality of ASADA’s conduct, not that of the AFL, before Justice Middleton.
The second plank to ASADA’s submissions was to re-assert the building blocks of its submissions below. This was used as a method of arguing that the judge’s decision was fundamentally correct. These submissions will not be repeated here.
Thirdly, ASADA’s submissions sought to point out omissions from the Appellant’s submissions, specifically, that they did not address what relief should be sought now that fresh notices had been issued to the 34 players. ASADA argued that the Appellant’s claim cut across the position of the 34 players who wished to the have the merits of potential ADRVs (including the evidence obtained by way of the ASADA / AFL investigation) dealt with immediately.
It would be remiss not to mention that the Appellant has filed Reply Submissions. It is worth reading paragraph 3 which puts in a bullet point manner the overall thrust of why the Appellant considers the judge’s reasoning is wrong.
ASADA’s Notice of Contention
ASADA has filed a Notice of Contention. The thrust of the submissions in support is that if the judgment is set aside and ASADA’s evidence is found to have been unlawfully obtained, there are reasons in addition to those found by the trial judge as to why relief should not be granted. In essence, ASADA contends that the judge did not go hard enough on the question of discretionary considerations.
For example, ASADA continues to argue that the Appellant should be found to have acquiesced in the joint investigation. ASADA refers, amongst other things, to James Hird’s public invitation that a joint investigation take place (even if he later testified to private reservations about this), to his failure to act when the Interim Report was handed down, and to his agreement to a settlement and sanctions as a result of that report.
ASADA also repeats its observation that the players’ interests and wishes now appear to have departed from the Appellants’, arguing that it is in the public interest that the show cause process proceed.
ASADA also argues that it would be wrong to restrain it from using the evidence, because the proper party to decide whether it should be admitted or not would be the “down stream decision maker” such as the ADVR Panel, the Administrative Appeals Tribunal or the relevant sporting tribunal which hears the matter or a subsequent appeal. ASADA’s point is that even if evidence is unlawfully obtained, this does not mean it is an automatic nullity. There are occasions where its use might still be allowed.
In its submissions in response, James Hird denies acquiescence, sheeting the blame for any delay to ASADA, not to himself for failing to take legal action until a relatively late stage in the process.
James Hird also takes issue with the suggestion that the 34 players are prepared to accommodate ASADA’s process, including the acceptance of unlawful evidence (which it would have to be for the discretionary considerations to come into play). It is also noted that the position of two of the 34 players, who are separately legally represented, is presently unknown.
WIth respect to the question of downstream decision makers, the Appellant contends that ASADA might be confusing the concept of litigation and administrative review. The Appellant questions, for example, whether the ADVR Panel would ever be in a position to decide the admissibility of evidence or otherwise.
The Appellant concludes its response by suggesting that ASADA’s argument that unlawfully obtained evidence should nonetheless be admissible, is essentially that “the end justifies the means” and that this cannot be right.
Now, we await Monday’s hearing, where these submissions and the parties’ positions will come to life.