RESPONDENT'S SUBMISSIONS FOR DIRECTIONS HEARING ON 27 JUNE 2014

IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY: VICTORIA DIVISION: GENERAL DIVISION

BE TW E E N:

ESSEN DON FOOTBALL CLUB (ACN 004286 373)

and THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTIDOPING AUTHORITY

AND BE TW E E N:

JAMES ALBERT HIRD

and THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTIDOPING AUTHORITY

No. (P)VID327/2014

Applicant

Respondent

No. (P)VID328/2014

Applicant

Respondent

1. This document is filed on behalf of the Chief Executive Officer of the Australian Sports Anti-Doping Authority, the Respondent to proceedings VID 327 and 328 of 2014, in response to the Court's email dated 17 June 2014 requesting information and submissions relevant for the directions hearing on 27 June 2014.

A. PRELIMINARY MATTERS - EXPEDITION & PARTIES 2. The Respondent submits that the two proceedings should be listed together

with expedition for a trial estimated to take 1-2 days that is heard in early August 2014. Subject to the issue of whether all of the necessary or appropriate parties are presently before the Court, attached at Schedule A is the Respondent's proposed directions to facilitate an efficient and fair trial of the applications on 4 and 5 August 2014.

3. There is an important procedural issue that needs to be addressed at the directions hearing that may impact upon the progress of the proceedings.

Lodged on behalf of the Respondent, by: AUSTRALIAN GOVERNMENT SOLICITOR Level 21 , 200 Queen Street MELBOURNE VIC 3000 DX50 Melbourne

Contact: Craig Rawson

File Ref: 14097050 Tel : (03) 92421248 Fax: (03) 9242 1317

E-mail: Craig.Rawson@ags.gov.au

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That is whether the players who were on the Essendon Football Club playing list during the 2012 football season (the EFC players), or some of them, are necessary parties to the proceedings or ought to be joined as parties to the proceedings.

4. The relevant statement of principle is that:

An order which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside . ... (emphasis added)

See News Limited v Australian Rugby Football League Lld (1996) 64 FCR 410 at 524 (Lockhart, von Doussa and Sackville JJ). The Full Court's statement of principle was cited with approval by the High Court in John Alexander's Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1 at [131]-[144]; see also Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112 at [13]-[15] (Beau mont, Lee and Dowsett JJ).

5. Accordingly, it is the proposed orders sought by the Essendon Football Club (Essendon) and Mr Hird that must be the focus when considering whether the rights or liabilities of the EFC players stand to be directly affected.

6. Essendon's proposed Amended Application appears to seek a range of orders which directly affect the rights and liabilities of the EFC players. For instance, Essendon seeks a declaration and an injunction that operates expressly by reference to the EFC players.

7. Subject to the following, the same holds true for Mr Hird's application. Although Mr Hird's application is expressed to restrain the Respondent from issuing a clause 4.07A notice to Mr Hird (and not the "any EFC player or EFC personnel"), he also seeks:

3. An injunction restraining the Respondent from issuing any further notice under clause 4.07(2) of Schedule 1 of the Regulations arising from or relying on information obtained in the investigation to any EFC player.

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8. The Respondent has raised this issue with Essendon, Mr Hird and the legal representatives of the EFC players.1 The position of the EFC players by letter dated 18 June 2014 is:2

At this stage, we see no necessity for our clients to seek to be joined to the recently issued proceedings in the Federal Court.

The proviso of "[a]t this stage" is problematic as it assumes that one, some, or all the players might reach a different view at a later stage in the litigation. That possibility is somewhat ominous.

9. At the directions hearing the Court should hear from the existing parties - and the EFC players - on this issue. It is for an applicant to properly constitute any proceedings before the Court. So doing is a necessary precursor to the grant of any relief (final or interlocutory). In this regard, it is necessary to consider whether the EFC players are persons who "ought to have been joined as a party to the proceeding" (Rule 9.05(1 )(a)) or who ought to be joined (Rule 9.05(1 )(b)(ii) and/or (iii)). In doing so, it is relevant to consider ss 223 and 37M4 of the Federal Court of Australia Act 1976.

B. RESPONDENT'S EVIDENCE 10. The Respondent cannot finally decide the scope of his evidence for the

hearing until approximately two weeks after Essendon and Mr Hird have filed and served their evidence.

11.

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At present, it is the Respondent's intention to file and serve affidavit evidence

addressing the following matters:

Annexures CLR-1, CLR-3, CLR-4, CLR-11, CLR-24 and CLR-27 to the affidavit of Craig Leslie Rawson affirmed 25 June 2014 (Mr Rawson's affidavit). The most recent communication to the players' legal representatives is Annexure CLR-27 to Mr Rawson's affidavit. Annexure CLR-7 to Mr Rawson's affidavit. Section 22 of the Federal Court of Australia Act provides:

"The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided."

Section 37M of the Federal Court of Australia Act relevantly provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible (s 37M(1 )(b)), with the objectives of, inter alia, the efficient use of the judicial and administrative resources available for the purposes of the Court (s 37M(2)(b)), the efficient disposal of the Court's overall caseload (s 37M(2)(c)), and the disposal of all proceedings in a timely manner (s 37M(2)(d)).

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(a) the role of ASADN in protecting Australia's sporting integrity through the elimination of doping and its responsibility for the implementation of the World Anti-Doping Code (the WADA Code) in Australia;

(b) the commencement of an investigation by ASADA into Essendon in February 2013;

(c) the impugned steps taken in the investigation - by ASADA itself and in co-operation with the Australian Football League (AFL), both before and after release of the Interim Report to the AFL;

(d) circumstances surrounding, and bases for, the acquisition of particular information by ASADA from, or through , the AFL;

(e) the circumstances surrounding, and bases for, provision of particular information (including an interim report in August 2013) by ASADA to the AFL; and

(f) the conduct of Essendon, Mr Hird and the AFL in the course of the investigation by ASADA (it is anticipated that this evidence will be relevant to refusal of relief on discretionary grounds).

C. PLEADINGS & STATEMENT OF AGREED FACTS 12. The Respondent is unable to inform the Court as yet as to whether there will

be a disputation of facts. It clearly cannot be assumed that all necessary facts will be agreed, although any factual disputes may be of a relatively confined nature.

13. Essendon's and Mr Hird's lawyers have suggested pleadings. The Respondent opposes this course and considers that the prompt exchange of trial affidavits will effectively "fast track" the proceeding to an early hearing. It is noted that the material facts and grounds of challenge appear with reasonable clarity in Essendon's proposed Amended Application, when read in the light of particulars which have been supplied by Essendon.6

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The ASADA consists of its Chief Executive Officer (CEO) and his or her staff: the Act, s 20A. The requests to Essendon and to Mr Hird are Annexures CLR-1 to Mr Rawson's affidavit. Essendon's answers to the request is Annexures CLR-22 to Mr Rawson's affidavit and Mr Hird 's answers to the request is Annexure CLR21 to Mr Rawson's affidavit. The Respondent is awaiting clarification from Mr Hird as to which of the particulars provided by Essendon he does or does not adopt: see Annexure CLR-26 to Mr Rawson's affidavit.

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Accordingly, the Respondent does not regard pleadings as an essential ingredient of case management directions. Indeed, the Respondent is concerned that the process of pleadings will materially add cost and disputes as well as add prolong the time until trial. The parties should look to other means to confine facts and issues in dispute between them.

14. The preparation of a statement of agreed facts (SOAF) should not interfere with the expeditious preparation of affidavits by the parties. The two processes can happen in parallel. Indeed, agreement on some facts may well be assisted by exchange of affidavits upon which the parties intend to rely. Further, under the Rules the parties are able to serve notices to admit on one another.

15. Accordingly, the Respondent suggests (as set in his proposed orders) that the preparation of a SOAF occur in parallel with the filing of affidavits. Otherwise there is a material risk, if the SOAF does not eventuate or is not fulsome, that the hearings will be unnecessarily delayed.

16. Essendon and Mr Hird have raised the need for discovery. With respect, the question of discovery by any party to the other is premature. Discovery is apt to delay the expeditious progress of the proceedings. Indeed, discovery from ASADA raises a whole range of distinct issues that do not arise in ordinary litigation: see, in particular, section 71 (4) of the Act. However, discovery is highly likely to be unnecessary given the relatively confined areas of any factual dispute, the possibility of agreed facts, and the proposed orders for affidavits. In any event, in accordance with usual practice, consideration of the need for discovery should await the filing of affidavits by the parties. It does not prejudice the parties if no discovery order is now made because the Applicants or the Respondent can always seek discovery in light of the affidavits (or even pleadings if, contrary to the Respondent's position, pleadings are ordered).

D. MEDIATION 17. The orders proposed in the Schedules do not include provision for mediation.

This is because the Respondent understands that mediation is not sought by the Applicants. For his part, the Respondent would not oppose any order for mediation, but if an order is to be made it should not delay progress of the matters to hearing.

E. SUBSTANTIVE LEGAL ISSUES TO BE RAISED BY THE RESPONDENT

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18. Promptly after service of the applications by Essendon and Mr Hird, the Respondent made a request for further and better particulars of the grounds therein so that he has fair notice of the case to be made against him.?

19. Having regard to the applications (as proposed to be amended by Essendon) and the further and better particulars provided by Essendon and Mr Hird,8 the Respondent presently anticipates that the substantive issues in the Essendon litigation (including the issues to be raised by the Respondent) are as follows: 9

(a) Did ASADA take the steps, and/or engage in the actions, particularised by Essendon at [1] of its particulars dated 23 June 2014 and, if so, did any of those steps involve unlawful conduct on the part of ASADA as particularised by Essendon at [4]-[8] of its particulars?

(b) In particular, (i) did ASADA "disclose" personal information to the AFL of the kind described, and in the manner alleged, at [6A] of the proposed amended application; (ii) if so, was the provision of that information for "purposes extraneous to ASADA's investigation" so as to contravene the particularised statutory constraints on disclosure of information applicable to ASADA; and (iii) to the extent not addressed at (ii), in providing the Interim Report to the AFL, did ASADA act as alleged at [7 A.1], [7 A. 2] and [8.3] of the Amended Application?

20. The issues direct attention to the proper construction of the Australian Sports and Anti-Doping Authority Act 2006 (the Act), the Australian Sports and Anti-Doping Authority Regulations 2006 (the Regulations) and the NAD Scheme in Schedule 1 to the Regulations (the NAD scheme). The applications expressly raise for consideration:

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The requests to Essendon and to Mr Hird are Annexures CLR-1 to Mr Rawson's. Essendon's answers to the request for further and better particulars is Annexures CLR-22 to Mr Rawson's affidavit and Mr Hird's answers to the request for further and better particulars is Annexure CLR-21 to Mr Rawson's affidavit. To the extent this analysis is not accepted the Respondent submits that provision of further and better particulars may be appropriate in order that Essendon's case is properly understood. In this regard , it is noted that Essendon did not provide particulars of the proposed amendments to its application. It is also noted that Mr Hlrd has not particularised the aspects of the so-called "joint investigation" which he alleges were unlawful.

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(a) Section 13(1 )(f) of the Act and cl 3.27(1) of the NAD Scheme;10 (b) Section 71 of the Act;11

(c) Section 13(1)(g) of the Act and cl 4.21 of the NAD Scheme;12 (d) Clause 4.07 A( 1) and (2) of the NAD Scheme. 13

These sections of the Act and clauses of the NAD Scheme will need to be considered with other relevant provisions such as sections 9, 13, 15, 21 and 22 of the Act and clauses 1.01, 1.02, 1.03, 2.02-2.04 and 3.27 of the NAD Scheme.

21 . The interface between the Act, the Regulations and the NAD Scheme with relevant AFL rules and policies will also need to be considered. The AFL is a "sporting administration body" as a "national sporting organisation" within the meaning of s 4 of the Act. Under the NAD Scheme, sporting administration bodies "must ... have in place anti-doping policies and practices that comply with ... the mandatory provisions of the World Anti-Doping Code ... and the NAD Scheme" (cI .2.04). Further, a sporting administration body such as the AFL "must not adopt its anti-doping policy unless it has been approved by the CEO". In November 2008, the former CEO of ASADA approved the AFL Anti-Doping Code as compliant with the NAD Scheme. 14 An issue before the Court is the relevance of various provisions in the AFL Anti-Doping Code. 15

22. It is anticipated that the Court will need to consider in detail the powers and functions of the ASADA from time to time since February 2013 in undertaking an investigation in relation to anti-doping in the AFL.16

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Essendon's and Mr Hird's applications at [1] in the grounds. See also [7 A.1] of Essendon's proposed amended application. Essendon's and Mr Hird's applications at [3.1] in the grounds. See also [7 A.1] of Essendon's proposed amended application. Essendon's and Mr Hird 's applications at [3.2] in the grounds. See also [7 A.1] of Essendon's proposed amended application . Essendon's and Mr Hird 's applications at [8]-[9] in the grounds. See also [9A] of Essendon's proposed amended application. The AFL Anti-Doping Code (as in force prior to 7 March 2014) is Annexures CLR-28 to Mr Rawson's affidavit. Such as rules 4.6, 4.7,12.6 and 12.7 and in the AFL's Anti-Doping Code. The Act was amended by the Australian Sports Anti-Doping Authority Amendment Act 2013 (the Amendment Act) with effect from 1 August 2013. The Amendment Act provided new powers to compel individuals to produce documents and materials relating to an anti-doping investigation. The ASADA's investigation commenced in February 2013 before the Amendment Act was law.

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23. The issues described in paragraph 19 above have been framed so as to avoid getting distracted by the nomenclature of a so-called "joint investigation" (by the ASADA or others). The mere fact of references to a "joint investigation" by the parties or third parties is not itself determinative of anything in the proceedings. What will be decisive is whether the particular conduct by ASADA which is impugned by Essendon and Mr Hird is ultra vires (whether or not that conduct answers the description of a "joint investigation").

24. The Respondent's basic case is likely to be as follows:

(a) There is no express or implied legislative prohibition in the Act, the Regulations or the NAD Scheme against investigative co-operation between ASADA and the AFL.

(b) The ASADA and the AFL cooperated with one another in the course of conducting their own separate investigations. ASADA's actions in this regard were authorised by the legislative scheme (see, for instance, section 22 of the ASADA Act17).

(c) All of the particularised information provided by ASADA to the AFL was lawfully given "for the purposes of or in connection with" ASADA's investigation, within the meaning of clause 4.21 of the NAD Scheme.

25. Further, the Respondent submits that even if there was a disclosure of information by ASADA in contravention of legislative requirements (which is denied), that does not warrant the grant of relief in the terms sought by the Applicants. For instance, at this stage the Respondent anticipates arguing as follows in relation to the relief sought by Essendon:

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(a) As to [1] - any declaration should be limited to those particular aspects of the investigation, if any, which are found to be ultra vires;

(b) As to [2] - [4B] - there are well-known means of decision-makers dealing with unlawfully acquired information which should not be pre-empted by these forms of relief;

Section 22 of the ASADA Act provides: "The CEO has the power to do all th ings necessary or convenient to be done for or in connection with the performance of his or her functions ."

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(c) As to [2] - [48] - to the extent these forms of relief are based on any finding that ASADA obtained and disclosed investigative information unlawfully, they are inutile. For instance, in respect of information provided by players to the AFL in the course of the so-called joint interviews, this information (i) having been acquired by the AFL (as to which there is no alleged illegality) would have to be provided (or re-provided) to ASADA by the AFL in any event; and (ii) could, in all likelihood, be lawfully "re-acquired" by ASADA in light of the Court's findings.

26. Finally, even if Essendon and/or Mr Hird establish conduct by ASADA in contravention of requirements of the Act, the Regulations or the NAD Scheme (which is denied), ASADA submits that there are strong discretionary reasons to deny each of them any relief. Essendon and Mr Hird were each legally represented at all relevant times; they acquiesced in the so-called joint interviews and so-called joint investigation; and they advertently declined to raise any objection to the steps now sought to be impugned (until service of statutory notices on various players, which was always a foreseeable possibility). There has also been unexplained lengthy delay by Essendon and Mr Hird.

F. TRIAL DATES & ESTIMATES 27. The timetable suggested in Respondent's proposed orders facilitates a

hearing on 4 and 5 August 2014. It is in the public interest that the applications are heard and determined as soon as possible. At this stage the Respondent considers that a 1-2 day estimate is sufficient to complete the hearing. This assumes that the trial time will be divided to reflect the fact that the applications of Essendon and Mr Hird are largely, if not entirely, the same and they will need to avoid duplication of evidence and submissions. The hearing may be longer if the EFC players are joined as parties, depending upon whether the position of the EFC players remains as one uniform group.

G. OTHER INTERLOCUTORY STEPS 28. The Respondent opposes the grant of any interlocutory relief. The

Respondent has given Essendon, Mr Hird and the EFC players such assurances as are necessary to preserve the status quo so there is no basis for interlocutory injunctions, let alone of an urgent kind .

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(a) In relation to Essendon, see the correspondence annexed to Mr Campbell's second affidavit sworn 23 June 2014 and Annexures CLR-11, CLR-15 and CLR-24 to Mr Rawson's affidavit.

(b) In relation to Mr Hird, see the correspondence being Annexures CLR-11 and CLR-12 to Mr Rawson's affidavit.

(c) In relation to the Essendon players, see the correspondence being Annexures CLR-8, CLR-16 and CLR-20 to Mr Rawson 's affidavit.

29. The Applicants seek a stay of the operation of the statutory notices or an order compelling the Respondent to extend the response period. The Respondent has, in effect, undertaken to stay the operation of the statutory notices, and thereby extend the response period applicable to them, in terms very similar to the 'default' position envisaged by the legislation. That accommodation is sufficient to protect the interests of the Applicants. If the Respondent gives notice before the conclusion of these proceedings, the Applicants will have sufficient time to apply to the Court for protective orders.

30. If Essendon presses its interlocutory application (which was only served 5.03pm on 23 June 2014) there will need to be directions to facil itate a hearing of it in due course, including the filing of submissions addressing the two-limbed test for grants of interlocutory relief. It is not appropriate for this interlocutory injunction application to be heard and determined at the directions hearing on 27 June 2014. See paragraph 24 to Mr Rawson's affidavit and the annexures referred to therein.

25 June 2014

TOM HOWEQC DAN STAR

Counsel for the Respondent

... .......... (f!j{!q1Al) (Jj ... ... C;~ig R~;';;~~ A Solicitor employed by

Australian Government Solicitor Solicitor for the Respondent

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SCHEDULE A

RESPONDENT'S PROPOSED ORDERS IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY: VICTORIA DIVISION: GENERAL DIVISION

BE TW E E N:

ESSEN DON FOOTBALL CLUB (ACN 004286373)

and THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTIDOPING AUTHORITY

AND BET WEE N:

JAMES ALBERT HIRD

and THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTIDOPING AUTHORITY

JUDGE: Justice Middleton

DATE OF ORDER: 27 June 2014

WHERE MADE: Melbourne

THE COURT ORDERS THAT:

No. (P)VID327/2014

Applicant

Respondent

No. (P)VID328/2014

Applicant

Respondent

1. These proceedings be heard together with evidence in one proceeding to be evidence in the other proceeding.

2. The hearing of each be listed on 4 and 5 August 2014 with an estimated duration of 2 days.

3. Documents filed and served by any party in one proceeding are also to be served on the parties in the other proceeding.

4. The evidence-in-chief of any witness shall be by affidavit.

5. By 4.00pm on 3 July 2014, each Applicant is to file and serve any further affidavits and documents intended to be relied upon at the hearing. [Note: If the Applicants wish to eliminate this step or shorten the time for it, the timetable can be adjusted accordingly.]

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6. By 4.00pm on 16 July 2014, the Respondent file and serve:

6.1. any affidavits and documents that he intends to rely upon at the hearing;

6.2. any objections to the Applicants' affidavits.

7. The parties in each proceedings use their best endeavours to file and serve statements of agreed facts by 4.00pm on 23 July 2014.

8. By 4.00pm on 23 July 2014, the Applicant file and serve:

8.1 . any affidavits in reply;

8.2. an outline of submissions;

8.3. any objections to the Respondent's affidavits; and

8.4. any response to the Respondent's objections to its affidavits.

9. By 1.00pm on 29 July 2014, the Respondent file and serve:

9.1. an outline of submissions;

9.2. any response to the Applicant's objections to his affidavits; and

9.3. any objections to the Applicant's affidavits in reply.

10. By 1.00pm on 29 July 2014, the Applicantfile and serve any submissions in reply.

11. Liberty to apply upon 2 business days' notice to the other party.

12. Costs reserved.

Date that entry is stamped:

Deputy District Registrar