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No. VID 327 of 2014

Federal Court of Australia

District Registry: Victoria

Division: General

Essendon Football Club (ACN 004 286 373)

Applicant

The Chief Executive Officer of the Australian Sports Anti-Doping Authority

Respondent

Submissions of the Applicant for the directions hearing on 27 June 2014

I. Matters for consideration

1. The following are the matters to be dealt with at the directions hearing:

(a) Leave to Amend the Application;

(b) the Applicant’s application for interlocutory relief;

(c) any application by the Respondent to join the players;

(d) the trial date and interlocutory timetable; and

(e) identification of the issues arising for determination at trial.

II. Leave to Amend the Application

2. By interlocutory application dated 23 June 2014, the Applicant seeks to make a

number of amendments to its originating Application.

3. The amendments fall into two broad categories. First, the Applicant seeks to

amend the claim for relief to include orders setting aside, or staying the

operation of, the notices purportedly issued by ASADA pursuant to

clause 4.07A(2) of the NAD Scheme to former and current players of the

Applicant.

4. Secondly, the amendments:

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(a) specify more precisely the aspects of the joint investigation that the

Applicant alleges to be beyond power; and

(b) provide greater specificity in relation to the Applicant’s allegation that

ASADA provided the AFL with access to information, documents and

records, including the Interim Report, for purposes extraneous to the

Act.

5. At this early stage of the proceeding, there can be no prejudice to the

Respondent in leave being granted to the Applicant to make these

amendments.

III. The Applicant’s application for interlocutory relief

6. By its Interlocutory Application dated 23 June 2014, the Applicant seeks the

following interlocutory orders against the Respondent:

(a) The operation of the Notices issued by ASADA to EFC players pursuant

to clause 4.07A of the NAD Scheme (the Notices) be stayed pending

the hearing and determination of this proceeding or further order.

(b) Alternatively, an order that the Respondent extend the response period

referred to in each of the Notices to a date 30 days after the hearing

and determination of this proceeding.

7. It is common ground that the Respondent issued show cause notices to 34

individuals who were Essendon players in the 2012 AFL season on or about 12

June 2014. About 20 of those players remain current employees of the

Applicant.

8. The Applicant contends that interlocutory orders are required in order to

preserve the status quo pending the hearing and determination of the

proceeding. Unless the operation of the notices is stayed or the Respondent is

directed to extend the response period, the Applicant will be prejudiced in

circumstances where the interlocutory orders sought occasion no prejudice to

the Respondent. The prejudice to the Applicant arises from the operation of the

provisions of the NAD Scheme (being Sch 1 to the Australian Sports Anti-

Doping Authority Regulations 2006 (Cth)) and the consequent exposure to

sanctions and financial harm if charges are laid by the AFL.

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The legislative scheme

9. The Respondent has the power to issue a show cause notice under clauses

4.07A(1) and (2) of the NAD Scheme where he “receives evidence or

information showing a possible non-presence anti-doping rule violation” and

determines, following a review of that evidence or information, that “there is a

possible non-presence anti-doping rule violation that warrants action” by him.

10. When a show cause notice has been issued, the recipient has a specified

period of time (known as the “response period”) in which to make any

submissions. The Respondent has the power to determine when the response

period ends (clause 4.07A(4)). The NAD Scheme does not impose any

restraint on the Respondent fixing a time longer than 10 days.1 Clauses

4.07A(4)(a) and (c) simply provide that the response period means 10 days

after the notice or “a longer period notified by the CEO in writing to the

participant”.

11. If the recipient of a show cause notice does not make any submission within

the response period set by the Respondent, he or she is deemed to have

waived the right to make a submission (clause 4.07A(3)(d)).

12. After the expiry of the response period, the Anti-Doping Rule Violation Panel

(the ADRVP) is required to consider whether to make an entry on the Register

of Findings (clause 4.09(2)). As such, the machinery of the NAD Scheme is

self-executing. Once the response period set by the Respondent for the

players has expired, the ADRVP is required to make a decision whether to

make an entry on the Register, irrespective of whether the player has made

any submission, and without reference to the views of the CEO.

13. If entries are made by the ADRVP on the Register of Findings, the Club and

the players will immediately suffer reputational damage, and they will be

exposed to sanctions for anti-doping violations under the AFL Anti-Doping

Code and AFL Player Rules. The charges that may be laid, and the sanctions

to which the Applicant and its employees are exposed include:

1 By way of contrast, a shorter period can only be imposed in certain circumstances under clause

4.07A(4)b).

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(a) charges of anti-doping rule violations against players under clause 11 of

the AFL Anti-Doping Code, carrying sanctions being periods of

suspension of two years under clause 14;

(b) sanctions against the Applicant in the “absolute discretion” of the AFL

Commission if more than one player in a club is found to have

committed an anti-doping rule violation during a season under clause 22

of the AFL Anti-Doping Code; and

(c) charges of “conduct unbecoming or likely to prejudice the interests of

the AFL or to bring the game of football into disrepute” under clause 1.6

of the AFL Player Rules.

Further, and as set out in the affidavit of Xavier Campbell sworn on 23 June

2014 (at [14]-[15]), adverse findings against players are likely to have other

adverse consequences for the Applicant, ranging from adverse publicity and an

inability to field competitive teams, to serious financial consequences arising

from loss of sponsorship, gate and other revenues.

Multiple requests for undertakings

14. This proceeding was commenced on 13 June 2014. Promptly after

commencement, the Applicant’s solicitors wrote to the Respondent’s solicitors

(AGS) requesting an undertaking that the Respondent would “take no further

steps in the investigation pending the hearing and determination of our client’s

application” (Exhibit XC-5). That undertaking was not forthcoming (Exhibit XC-

6).

15. On 18 June 2014, the Applicant’s solicitors again wrote to the Respondent’s

solicitors seeking, inter alia, undertakings that:

“(1) Until the hearing and determination of the Application in VID 327 of 2014

or further Order, but subject to the exception in paragraph 2 below:

(i) ASADA will not take any further steps in, or in connection

with, the Investigation and it will not use any information

obtained in that investigation for any purpose under the ASADA

Act, the ASADA Regulations or the NAD Scheme; and

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(ii) ASADA and the Anti-Doping Rule Violation Panel

(ADRVP) established under section 40 of the ASADA Act will

not take any steps in reliance upon notices issued to the 34 past

and present Essendon Football Club players purportedly

pursuant to clause 4.07A of the NAD Scheme, nor will they

make, or cause or procure the making of, any entry on the

Register of Findings referred to in clause 4.10 of the NAD

Scheme.

(2) Nothing in the foregoing undertakings shall operate to prevent:

(i) ASADA extending the response period specified in each of

the notices issued under clause 4.07A of the NAD Scheme to a

date at least 30 days after the hearing and determination of the

proceeding; and

(ii) ASADA providing each of the 34 players or his

representative with a copy of every document that the CEO of

ASADA relied upon in issuing the notices under clause 4.07A or

which the CEO intends to provide to the ADRVP.”

(Exhibit XC-8).

Again, the undertakings sought were not forthcoming, although the Respondent

extended the response period to 11 July 2014 (Exhibit XC-9).

16. After the Applicant’s solicitors again pressed on 20 June 2014 (Exhibit XC-10)

(noting that an extension until 11 July 2014 was insufficient as it would still

require that the show cause notices be responded to prior to the hearing and

determination of the proceeding), the Respondent stated that he would extend

the response period until “7 days after each such player receives further written

correspondence from the CEO advising that no further documents or material

will be provided to that player in respect of their Notification” (Exhibit XC-11).

17. This proposal did not preserve the status quo pending the hearing, and nor did

it alleviate the prejudice to the Applicant and its employees. The Applicant

pointed out the reasons why the proposal was unsatisfactory in its letter to the

Respondent’s solicitors dated 23 June 2014. The same letter informed the

Respondent that the Applicant would be moving for interlocutory relief and

urged the Respondent to reconsider its position. Later on 23 June, the

Applicant filed its application for interlocutory orders on 23 June 2014.

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Applicable principles and the formulation of the relief

18. Interlocutory relief will issue where it is needed to ensure the effective exercise

of the jurisdiction invoked.2 Before ordering such relief, the court must be

satisfied that there is a serious question to be tried and that the balance of

convenience lies in favour of the interlocutory relief. Whether the inadequacy of

damages is considered as a separate criterion or as part of the assessment of

the balance of convenience, it is also a relevant consideration in determining

whether interlocutory injunctive relief should go. 3

19. The two criteria (serious question to be tried and balance of convenience) are

inter-related, such that a strong case on the merits may lead to interlocutory

relief where the balance of convenience is more finely balanced, and vice

versa.4 In this matter, there is no issue but that there is a serious question to be

tried.5 As to the balance of convenience, it clearly lies in favour of preserving

the status quo for the reasons set out below.

20. The primary interlocutory relief sought by the Applicant is a stay on the

operation of the show causes notices. In the alternative, it seeks a mandatory

interlocutory injunction requiring the Respondent to extend the response period

to 30 days after the hearing and determination of the proceeding. The

difference in the proposed orders is one of form, more than substance; both

would result in the players being relieved from the requirement to respond to

the show cause notices while the proceeding is on foot.

21. Although the second order is mandatory in form, it may be the natural, and the

simplest, way of preserving the status quo. It will not impose any prejudice or

cause any practical difficulties for the Respondent, as it is a measure that the

Respondent has already used to prevent the Notices operating to the prejudice

of the players and the Applicant.

2 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 at

659; Cardile v LED Builders Pty Ltd (1999) 98 CLR 380; 162 ALR 294 at 308.

3 See Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and

Crennan J.

4 Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472.

5 It is sufficient “that the plaintiff show a sufficient likelihood of success to justify in the circumstances

the preservation of the status quo pending the trial”: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] per Gummow and Hayne JJ. The test is not particularly onerous: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092 at at [39].

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22. The conventional approach is that, where a party applies for a mandatory

interlocutory injunction, the court will be concerned to ensure that the injunction

is only granted where it feels a “high degree of assurance that at the trial it will

appear that the injunction was rightly granted”.6 That nature of the assurance

required will also depend on whether the injunction would, in practical terms

finally determine the rights of the parties or would require ongoing supervision

by the court.7 In this case, the interlocutory relief merely defers the time by

which the show cause notices must be responded to, creates no other

difficulties for the Respondent, and requires no supervision. This is not a case

where the mandatory form of the order has any serious or lasting effect on the

Respondent or is costly to execute.8

23. Even where the court concludes that the “high degree of assurance” threshold

has not been met, it may still grant a mandatory interlocutory injunction if denial

of that relief would give rise to a greater risk of injustice than granting it:

Businessworld Computers Pty Ltd v Australian Telecommunications

Commission (1988) 82 ALR 4999. The guiding principle remains that the court

may make such orders as are necessary to ensure the effective exercise of the

jurisdiction invoked and this includes power to make interlocutory orders so as

to prevent frustration of its processes in a proceeding: Binetter v DCT [2012]

FCA 377; BC201202084 at [40].

24. The Applicant has formulated the two alternative forms of interlocutory relief so

that they occasion no, or minimal, interference with the Respondent’s statutory

functions. Those forms are preferable to negative formulations that would

probably require joinder of the members of the ADRVP to be fully effective, and

especially so given the written assurance in the Respondent’s letter of 23 June

6 Shepherd Homes Ltd v Sandham [1971] 1 Ch 340 at 351. This principle was adopted and applied by

Gibbs CJ in Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 at 245. The approach has been applied in numerous cases in this court and others, including: eg Australian National Airlines Commission v Commonwealth (1986) 17 FCR 445 at 451–452; Midland Milk Pty Ltd v Victorian Dairy Industry Authority (1987) 82 ALR 279 at 291.

7 Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd [2013] FCA 119 at [21] per Collier J.

8 Where the order is onerous or costly, the “high degree of assurance” test has a greater role to play:

Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119; (1995) ATPR ¶41-426.

9 See also Carson v Minister for Education (1989) 25 FCR 326; 88 ALR 467; Ausdoc Office Pty Ltd v

Complete Office Supplies Pty Ltd (1996) 136 ALR 659.

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that he has not yet provided any material to the ADRVP and will not do so until

the expiration of the further extended response time in respect of the players.

25. For the reasons which follow, the Applicant contends that the balance of

convenience heavily favours the grant of interlocutory relief. To the extent that

the relief is cast in a mandatory form, it is not substantively different from, or

more onerous than, the interlocutory stay. The same balance of convenience

factors tell in favour of the grant of interlocutory relief in either case.

Balance of Convenience: the need for interlocutory relief

26. By the proceeding, the Applicant alleges that the joint investigation conducted

by the Respondent and the AFL was outside the Respondent’s powers, which

are conferred and circumscribed by statute. That being the case, the

Applicants also allege that the information obtained by the Respondent through

that illegal investigation cannot be used by him in exercise of his statutory

powers. If those contentions are correct, it follows that the Respondent has

issued the show cause notices in reliance upon illegally gathered information.

That information does not constitute “evidence or information” upon which a

show cause notice could be issued under clause 4.07A(1) and (2) of the NAD

Scheme.10

27. It is inherent in the Applicant’s case that the players should not have been

served with these show cause notices and should not have to respond to them

at all. If they are required to respond to those notices (due to the expiry of the

response period) before the proceeding is finally heard and determined, the

proceeding will, to a significant extent, be rendered nugatory.11

28. Against that, the Respondent has contended in correspondence that:

(a) the Respondent has offered to give 7 days notice before the expiry of

the response period for the show cause notices issued to the 34

players;

(b) (it is alleged) that the Applicant delayed in bringing the proceeding; and

10 Based on correspondence between solicitors, the Applicant understands that the Respondent does

not contend that there is no serious question to be tried in the proceeding.

11 The Applicant’s proposed Amended Originating Application seeks final relief, inter alia, setting

aside the Notices and/or permanently staying the operation of the notices and orders restraining he Respondent from requiring a response.

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(c) (it is contended) that the players ought to be joined before the

application for interlocutory relief is heard and determined.

29. The undertaking to give 7 days notice is inadequate and does not address the

basic injustice to the Applicant and its employees if the players are required to

respond to the show cause notices before the legality of those notices is

determined. Unless the notices are stayed or the response period is extended

until the hearing and determination of the proceeding, ad hoc extensions

(including the giving a short notice period) merely defer the issue and put the

Applicant in the position of having to make an urgent application on short

notice, with the cost, inconvenience and ongoing uncertainty attendant on the

course proposed by the Respondent. There is nothing to be gained from

deferring the determination of whether or not interlocutory relief should go.

30. In weighing the balance of convenience, the court may also note that:

(a) the investigation had been on foot for 16 months before the Respondent

issued the show cause notices;

(b) the show cause notices were issued more than 10 months after

ASADA’s Interim Report was issued around 2 August 2013;

(c) there is no urgency in having the players respond to the show cause

notices; and

(d) the court has indicated that an expedited timetable can be adopted.

31. In all of those circumstances, and given the narrow focus of the relief, there is

no prejudice to the Respondent in extending the response period to after the

hearing and determination of this proceeding, or in the court ordering a stay on

the Notices until that hearing and determination takes place. The worst case

scenario for the Respondent is that operation of the NAD Scheme so far as the

players are concerned is delayed by a few months. In the context of an

investigation that has been on foot for 16 months, such a delay is not of any

real consequence.

32. On the other hand, there will be serious, and irreparable, damage12 to the

Applicant and the players if a response is required before that time. In that

regard, it must be remembered that, under the NAD Scheme, the moment the

12 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and

Crennan J

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response period ends, the ADRVP must “as soon as practicable” consider

whether to make an entry on the Register of Findings (clause 4.09(2)). If they

do so decide, that entry must be made “as soon as practicable” after the

decision is taken (clause 4.10). Of itself, the making of the entry will inflict

irreparable harm. Furthermore, the entry will trigger processes that would

operate to prejudice the Applicant and the players. Damages are plainly not an

adequate remedy in these circumstances.

IV. Any application by the Respondent to join the players

33. Any application by the Respondent to join the players will be opposed by the

Applicant. The players are not necessary parties under Rule 9.05 of the

Federal Court Rules 2011 (Cth).

34. In correspondence between the parties’ solicitors, the solicitors for the

Respondent have stated that it is likely that the Respondent will be raising this

issue with the court at the directions hearing. The stated reason for doing so is

that the Respondent says that the players are persons who ought to have been

joined, or ought to be joined, as a party to each proceeding under

Rule 9.05(1)(a) or (b): see the letter from the Australian Government Solicitor

to Maurice Blackburn dated 18 June 2014 (Exhibit XC-9). The solicitors for the

Applicant advised that the Applicant considers that all proper and necessary

parties to the application are named in the application: see the letter from

Maurice Blackburn to the Australian Government Solicitor dated 18 June 2014

(Exhibit XC-8).

35. Pursuant to Rule 9.05(1), the court may order that a person be joined as a

party if, relevantly, the person:

“(a) ought to have been joined as a party to the proceeding; or

(b) is a person:

(i) whose cooperation might be required to enforce a

judgment; or

(ii) whose joinder is necessary to ensure that each issue in

dispute in the proceeding is able to be heard and finally

determined; or

(iii) who should be joined as a party in order to enable

determination of a related dispute and, as a result, avoid

multiplicity of proceedings”.

36. A person can only be added as an Applicant with the person’s consent: r

9.05(2).

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37. The power of the court to join persons as respondents to an existing

proceeding is discretionary. It is a power that is to be exercised having regard

to the following considerations:

(a) the object of the rule is to enable the court to prevent injustice being

done to a person whose rights will be directly and adversely affected by

the judgment or orders sought without that person having been given an

opportunity to be heard: Pegang Mining Co Ltd v Choong Sam (1969) 2

MLJ 52 at 55-56, per Lord Diplock. As the Full Court observed in News

Ltd v Australian Rugby Football League Ltd (1996) FCR 410 at 524-5:

“[t]he requirement of direct effect on rights or liabilities

differentiates the case where a person ought to be joined, from

other cases where the effect of the order on non-parties can be

characterised as only indirect or consequential”.13

(b) the test (as propounded by Lord Diplock in Pegang Mining) for whether

or not a person ought to be joined as a party involves “matters of

degree, and ultimately judgment, having regard to the practical realities

of the case”: News Ltd v Australian Rugby Football League Ltd (1996)

FCR 410 at 524-5, Full Court;

(c) the test is directed to the orders sought in the proceedings, and it is the

effect of the orders upon the third party that must be addressed: News

Ltd, at 525; and

(d) prima facie, an Applicant is entitled to choose Respondents and will not

normally be compelled to add a Respondent: Atid Navigation Co Ltd v

Fairplay Towage & Shipping Co Ltd [1955] 1 All ER 698; [1955] 1 WLR

336.

38. As filed, the application seeks the following orders:

(a) a declaration that the ASADA investigation was ultra vires the Australian

Sports Anti-Doping Authority Act 2006 and the Australian Sports Anti-

Doping Authority Regulations 2006 including the NAD Scheme in

Schedule 1 to the Regulations.

13 See also Orrcon Operations Pty Ltd v Capital Steel and Pipe Pty Ltd No 2 [2008] FCA 24.

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(b) an injunction restraining the Respondent from further issuing to any

EFC player or EFC personnel a notice under clause 4.07A(2) of the

NAD Scheme arising from or relying on information obtained in the

investigation.

(c) an injunction restraining the Respondent from using any information

obtained in the investigation for any purpose under the Act, the

Regulations and the NAD Scheme.

39. The Applicant has applied to the court for leave to amend the application to

include the additional relief as follows:

(a) an order setting aside all notices issued by ASADA to EFC players

purportedly pursuant to clause 4.07A(2) of the NAD Scheme.

(b) further or alternatively, orders permanently staying the operation of the

Notices, or restraining the Respondent from requiring a response to, or

otherwise taking any action in reliance upon, the Notices.

40. The additional relief is necessary because the Respondent has served “show

cause” notices under clause 4.07A(2) on 34 players in reliance upon

information obtained in the course of the ASADA investigation. Unless relief is

obtained in the terms sought, those Notices may directly lead to further

processes that will be adverse to the rights and interests of the Applicant. As

discussed below, there is no reason why leave to amend the Application ought

not be granted by the court.

41. All of the orders sought in the proceeding are directed to the Respondent.

None of them adversely affect the interests of the players, and through their

solicitor the players have advised the Applicant that they do not wish to be

joined as parties to the proceeding.

42. There is no suggestion that the Applicant does not have the necessary

standing to make the claims set out in the Application. Its rights and interests,

including its rights and interests as the employer (past or present) of the

players, has been, and will be directly and adversely affected by, the conduct

of an investigation that is alleged to have been unlawful and ultra vires.

43. In its letter of 18 June, the solicitors for the Respondent said they relied upon

News Ltd and Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR

112 for the stance they are taking. News Ltd is itself an example of the first

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class of case (where the interests of a person are directly and adversely

affected). In that case, the orders sought by the Australian Rugby League and

the NSW Rugby League included orders restraining News Ltd, Super League

and the rebel clubs from making payments to players and coaches who did not

continue training and playing for their original ARL clubs. It was these orders

(directly compromising the players’ and coaches’ rights) which led the Full

Court to conclude that their joinder was required.14 Similarly, in Merit Protection

Commissioner v Nonnenmacher [1999] FCA 274; (1999) 86 FCR 112, it was

necessary that the person who would lose the benefit of a promotions decision

if the Applicant was successful (namely Ms Hay) be joined. The Full Court

concluded (at [13]-[14]) that:

“[Nonnenmacher] asserts an entitlement to have the decision of the

Promotion Appeal Committee set aside. If [Nonnenmacher] succeeds,

Ms Hay would lose the benefit of a decision in her favour. In those

circumstances, she was always a necessary party to these proceedings

and should have been joined at the outset.”

44. The circumstances in News Ltd and Nonnenmacher may be contrasted with

the circumstances in this proceeding. Here, the Applicant applies for

declaratory and other relief against the Respondent concerning the legality of

the Respondent’s joint investigation with the AFL, and its capacity to use

information obtained in the course of that investigation to issue “show cause”

notices under clause 4.07A of the NAD Scheme. True it is that the players may

benefit consequentially if the Applicant obtains the relief it seeks. However, the

fact that the players stand to benefit indirectly if the Applicant succeeds does

not render them persons whose interests are directly and adversely affected by

the proceeding. They are not persons who “ought to have been joined” for the

purposes of Rule 9.05(1)(a).

45. Turning to the categories of persons who may be joined under Rule 9.05(1)(b),

the players are self-evidently not persons of the kind referred to in Rule

9.05(1)(b). Their cooperation is not “required to enforce a judgment”. Nor is

there any other dispute on foot such as to necessitate joinder to avoid a

multiplicity of proceedings. Further, the players are not persons whose joinder

is required in order to “ensure that each issue in dispute in the proceeding is

14 News Ltd v Australian Rugby Football League Ltd (1996) FCR 410 at 527.

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able to be heard and finally determined” as the proceeding concerns a limited

number of issues:

(a) was the Respondent authorised under its governing legislation, to

conduct a joint investigation with the AFL?

(b) what obligations of confidentiality were imposed on the Respondent?

(c) having regard to the purposes for which ASADA shared information,

was the joint investigation (particularly the conducting of joint interviews,

the sharing of information, and the provision of the Interim Report or

other reports to persons outside ASADA) conducted in contravention of

those obligations?

(d) what are the consequences if the joint investigation was ultra vires,

and/or involved a breach of the obligations of confidentiality? In

particular, is the Respondent able to use the fruits of the joint

investigation in issuing show cause notices to players and officials?

46. The players are not necessary parties in order for the legal issues to be fully

explored and for submissions to be made to the court. The two sides of the

argument will be fully debated through the submissions of the Applicant and

the Respondent. There is nothing to be gained by having the players joined

when they do not wish to be.

47. To the extent that there is likely to be any factual dispute at trial, that dispute is

likely to concern:

(a) the existence, nature and extent of the joint investigation;

(b) the identity of those to whom ASADA provided the Interim Report and

any versions of it; and

(c) the purpose or purposes for which ASADA shared information or

provided documents to the AFL and others.

The answers to these factual questions will be found in the documents, in the

evidence filed on behalf of the parties, or in evidence elicited from witnesses at

the hearing. The players are not necessary parties for the determination of these

factual disputes.

48. Nor are the interests of the players sufficiently distinct from the interests of the

Applicant to require their joinder for that reason. The potential sanction faced

by players is suspension. The suspension of even one of its players based on

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a finding of anti-doping rule violations would have adverse consequences for

the Applicant. The consequences to the Applicant of multiple adverse finding

against players are equally clear and are set out in the affidavit of Xavier

Campbell sworn on 23 June 2014. The interests of the players and the

Applicant are relevantly ad idem in this proceeding.

49. Having regard to the “practical realities” of this case, and mindful that the

question is ultimately one of discretion and judgment, the players ought not be

joined. They have confirmed in writing that they do not wish to be joined,15 their

presence is not necessary and their interests are not directly, or adversely,

affected.

V. Trial and timetable

50. All parties in this proceeding and the related proceeding (Hird v The Chief

Executive Officer of the Australian Sports Anti-Doping Authority VID 328 of

2014) have agreed that the matter should be expedited.

51. The Applicant proposes that orders be made for the pre-trial steps set out in

the attached draft orders. The timetable provided for in those orders is

expedited. Most interlocutory steps should be capable of completion in July,

allowing for submissions in early August and a trial (on an estimate of 2-3

days) commencing on 11 or 25 August, depending on which date is most

convenient to the court and the parties.

52. The proposed orders provide for pleadings. The Applicant proposes pleadings

having regard to the court’s request by its email of 17 June 2014 that the

parties should confer together to identify with precision the legal issues raised

by each party and the precise nature and extent of any disputation as to the

facts. It appears from the Respondent’s requests for particulars of the

Amended Application, and from the Applicant’s response to that request for

particulars, that there may be a number of factual issues in dispute that require

definition. It also appears from the Respondent’s correspondence with the

Applicant that it may seek to allege that relief should be withheld because of

the Applicant’s failure to bring court proceedings to raise the illegality of the

investigation at an earlier date. The factual basis for any such contention will

need to be identified, and defined, as will any material showing that the

15 Letter of Tony Hargreaves (the players’ solicitor) dated 23 June 2014.

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Respondent was put on notice as to the illegality of the joint investigation at an

earlier stage. The Applicant considers that service of pleadings will be more

productive in identifying facts that are agreed, and facts that are in dispute,

than any attempt to develop an agreed statement of facts.

53. Service of concise pleadings will allow the issues in dispute to be narrowed,

without delaying the hearing of the matter. The Applicant’s proposed Statement

of Claim was provided to the Respondent’s solicitors on 25 June. It is attached

to these submissions and can be filed and served promptly following the

directions hearing on 27 June 2014. Given that the issues are relatively

confined and the Respondent has been on notice of the issues raised for some

time, his Defence should be provided within a week (ie by 4 July 2014).

54. The proposed orders provide for discovery to be given by category. The

categories of discovery sought from the Respondent (set out in the attached

orders) are appropriately targeted to the issues that arise on its Amended

Application and proposed Statement of Claim. These categories may need to

be expanded or adjusted following receipt of the Defence.

55. It is proposed that discovery be completed by 22 July 2014.

56. The timetable proposed by the Applicant sets out further pre-trial steps,

including the service of any further affidavits, and the exchange of opening

submissions and tender lists.

VI. Issues arising for determination at trial

57. The essential issues arising for determination at trial (as currently

apprehended) are set out in paragraphs 45 and 47 above. Those issues might

be further defined, or enlarged, as the result of an exchange of pleadings.

N J YOUNG

CATHERINE BUTTON

Dated: 25 June 2014

Maurice Blackburn Lawyers

Solicitors for the Applicant