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Australian Government Solicitor

 

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ASADA – matters involving Essendon Football Club

During 2014–15, AGS supported the Australian Sports Anti-Doping Authority (ASADA) in cases brought against them by Australian Football League (AFL) club Essendon and coach James Hird. An extraordinary amount of media coverage was devoted to these matters, including the televised broadcast of parts of proceedings.

In August 2014, the highly publicised case brought by Essendon and Mr James Hird against ASADA was heard by Justice John Middleton in the Federal Court. Supported by a large AGS team led by Senior Executive Lawyer Craig Rawson, AGS’s Chief Counsel Dispute Resolution Tom Howe PSM QC acted as lead counsel for ASADA. During preparation for the trial AGS managed an expedited discovery process which saw AGS process approximately 9,000 documents in 33 days.

On Friday 19 September 2014, Justice Middleton delivered his finding in favour of our client – that ASADA’s investigation into Essendon Football Club’s 2012 supplements program was lawful. Essendon Football Club and Mr Hird were ordered to pay ASADA’s costs.

The appeal

Mr Hird subsequently appealed to the Full Federal Court. Essendon chose not to appeal. AGS also acted on behalf of ASADA in this matter.

Appeal proceedings were expedited to minimise uncertainty around ASADA’s joint investigation with the AFL, to curtail the potential for unfair damage to Mr Hird’s reputation, and to take into account the welfare of Essendon players facing allegations of doping.

The primary basis of the appeal was that Justice Middleton had erred in finding that the CEO of ASADA had acted lawfully in conducting a joint investigation with the AFL. Mr Hird contended that ASADA had unlawfully acquired information in reliance on the AFL’s contractual powers with the players. Mr Hird sought (amongst other relief) a permanent injunction restraining the CEO of ASADA from using any information obtained in its investigation through cooperation with the AFL, and an order staying the operation of show-cause notices issued to the players of possible non-presence anti-doping rule violations.

On 30 January 2015, the Full Court (Kenny, Besanko and White JJ) handed down judgment, dismissing the appeal. Mr Hird was ordered to pay ASADA’s costs.

AGS also acted on behalf of ASADA’s CEO in proceedings before the AFL Tribunal, and continues to act in subsequent proceedings before the AFL Appeals Board.

AGS team members

AGS lawyers involved in the various proceedings (in addition to Tom Howe PSM QC and Craig Rawson) included Special Counsel Dispute Resolution Kim Bennett, Senior Executive Lawyer Justin Davidson, and Senior Lawyers Cherie Canning, Melissa Gangemi, Christopher McDermott, Dejan Lukic and Laura Deschamps-Ferrari. Outstanding support was provided to the lawyers by Senior Legal Assistant Catherine Mayne, Legal Assistant Joey Nazzari and Copy Centre Clerk Chris Kallis.

This is an extract from the 2014–15 AGS annual report