20140704 Summary Discovery
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Transcript of 20140704 Summary Discovery
1
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
Summary of areas of dispute regarding discovery sought from the Essendon Football Club
Key:
Wording that the CEO seeks to include which EFC resists.
Wording that EFC seeks to include, which the CEO resists.
Timing: EFC proposes the order should be for discovery at the same time as discovery is given by the Respondent, namely 24 July 2014.
Category sought by the CEO EFC position
1. Documents recording or evidencing each Applicant’s knowledge of the
existence or terms of any agreement or arrangement (including any
revisions to it) between ASADA and the AFL to conduct an
investigation into suspected doping violations at the Essendon Football
Club in the 2012 season (the investigation).
No objection.
2. Documents recording or evidencing communications made by each
Applicant (i) to the AFL, (ii) to EFC players, (iii) to EFC personnel or
(iv) to the other Applicant regarding:
(a) the establishment and conduct of the investigation;
No objection.
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(b) the participation of each Applicant, any EFC player or any EFC
personnel in the investigation;
(c) the request or requirement that EFC players or EFC personnel
attend interviews and/or provide documents or other
information;
(d) the sanctions that EFC players or personnel may face if they do
not co-operate or provide the documents requested in the course
of the investigation.
3. Documents recording or evidencing the each Applicant’s knowledge,
attitude or views of:
(a) the provision by ASADA to the AFL or any other person of any
versions of the document known as the “Interim Report”;
(b) the provision by ASADA to the AFL of documents or
information obtained by ASADA in the course of the
investigation; and
(c) the provision by ASADA to the AFL of documents created by
ASADA during the course of the investigation.
Preamble: The inclusion of the words “attitude or views” in the
preamble is opposed:
(i) the words are too vague and obtuse to usefully guide
discovery;
(ii) the words do not add anything useful or relevant to
“knowledge”, which is already included; and
(iii) any documents recording, eg internal ruminations of the
EFC concerning the matters in (a), (b) (or (c)) is irrelevant to
the issue of acquiescence and delay raised by the CEO.
4. Any communications between the Applicants or between an Applicant
and the AFL concerning:
(a) the legality of the joint investigation by the AFL and ASADA;
(b) the Interim Report or any draft thereof; and
(c) the abrogation or prevention of the exercise of the common law
right against self incrimination in the part of each EFC Player or
EFC support person staff participating in the joint investigation
by the AFL and ASADA.
Inclusion of “legality” in 4(a): unless this limitation is
imposed, the category is apt to generate unlimited and
burdensome discovery. There is no issue in the proceeding
requiring discovery of any document containing a
communication “concerning” the joint investigation. The
category is fishing.
Categories 4(b) and (c) are opposed as the documents sought
are not relevant to any issue in the proceeding. The CEO will
have discovery of documents showing EFC’s knowledge of
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provision of the Interim Report under category 3(a).
5. Documents recording or evidencing that ASADA provided drafts or
versions of the Interim Report or parts thereof to the AFL prior to 2
August 2013
No objection.
6. Documents recording or evidencing that ASADA or the AFL provided
copies of the Interim Report persons or entities who were neither
athletes nor persons permitted by the ASADA Act and the ASADA
Regulations to receive the information in the Interim Report. .
No objection.
7. Documents relied upon by the Applicant in VID 327 of 2014 for the
allegations in paragraph 4A of its amended statement of claim
(including the particulars thereto) that the Respondent entered into an
agreement to conduct the alleged “Joint investigation” for improper
purposes.
No objection.
8. Documents relied upon by the Applicant in VID 328 of 2014 for the
allegation in paragraph 8 of his statement of claim (including the
particulars thereto) that it was a purpose of the alleged “Joint
investigation” that the Respondent and/or ASADA obtain a benefit it
did not otherwise have under the ASADA legislative regime when
conducting an investigation and could not have without the express
authority of Parliament.
[Not relevant to EFC]