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Fonn 69 Rule 31.11(1)
PROCESSED
Amended Originating application for relief under section 39~=--~ Judiciary Act 1903
Federal Court of Australia
District Registry: Victoria
Division: General .
Essendon Football Club (ACN 004 286 373)
Applicant
No. VIP 327 of 2014
30 JUN 2011 I . - .•.• : P~j(J . ... ... ... .............. ............... . .
The Chle' Executive Officer of the Australian Sports Anti-Doping Authority
Respondent
To the Respondent
The Applicant applies for the relief set out in this application.
The Court will hear this application, or make orders for the conduct of the proceeding, at the
time and place stated below. If you or your lawyer do not attend, then the Court may make
orders in your absence.
You must file a notice of address for service (FonTl 10) in the Registry before attending Court or
taking any other steps in the proceeding.
Time and date for hearing:
Place: Owen Pixon Commonwealth Law Courts Building, 305 William Streel, Melbourne vie 3000
Date:
Signed by an officer acling with the authority of the District Registrar
Filed on behatf of (name & role of party) The Applicant, Essendon Football Club
Prepared by (nerne of personllawyer) _~2..'".h~B~o~ms~le~;n~=;;:=:;;;:;::;;;~:;;;;;:;::====== Law firm (if applicable) Maurtce BlackbuL'!. T eJ (03)9605 2831 Fax ~("'O"'3)"9"'2"'58,,9"'6"'O,,O _ _____ _ Email [email protected] Address for service Level 1 0, 456 Lonsdale Street. Melboume, VlClooa 3000 (Include state end postcode) OX 468 Melbourne Victoria 3000
IN THE FEDERAL COURT OF AUSTRALIA (FCA) VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA GENERAL DIVISION No: VID32712014
NOTlCEOFFlUNG
This document was filed electronically in the FEDERAL COURT OF AUSTRAUA (FCA) on 3(}I06'2014.
Document Lodged:
File Number:
File litle:
District Registry:
DErAILS OF flUNG
Amended Document
Vl0327/2014
fsscndon Football aub v The Oief~cutive Officerofthe Australian Sports Anti-Doping Authority VJcroRIA REaSTRY - FEDERAL COURT OF AUSTRAUA
Note
ThiS Notice forms part of the document and contains information that might otherwise appear elsewhere in the document. The Notice must be included in the document served on each party to the proceeding.
• •
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Amended Details of claim
On the grounds stated below, the Applicant applies for the followIng relief under section
398(lAXc) of the Judiciary Act 1903:
1 , A declaration that the investigation conducted by ASADA into the players. who were on
the Essendon Football Club (EFC) playing list during the 2012 football season (the EFC
players) and other persons employed by the Essendon Football Club during that season
(the EFC personnel) and which was referred to by ASADA as part of "Operation Cabla
(the investigation) was ultra vires the Australian Sports and Anti-Doping Authority Act
2006 (the Act). the Australian Sports and Ant~Doplng Authority Regulations 2006 (the
Regulations) and the NAD Scheme in Schedule 1 to the Regulations (the NAD
scheme).
2. An injunction restrainIng the Respondent from further Issuing to any EFC player or EFC
personnel a notice under clause 4.07A(2) of Schedule 1 to the Regulations arising from
or relying on information obtained in the investigation.
3. A pennanent injunction restraining the Respondent from using any information obtained
in the Investigation for any purpose under the Act, the Regulations and the NAD
Scheme.
4A. An order setting aside all notices issued by ASAOA to the EFC players purportedly
pursuant to clause 4.07A(2) of the NAO Scheme.
4B. Further or alternatjvely:
(a) an order pennanently staying the operation of the N?tices; Or
(b) an Injunction restraining the Respondent from ·requiring a response to. or
otherwise takinq any action In reliance upon. the Notices.
4. Costs.
5. Such further or other relief as the Court considers just.
The ground. of the application
The grounds of the application are as follows:
1. At all relevant times up to and including 31 July 2013, clause 3.27(1) of the NAD scheme.
as contemplated by 5 13(1 Xf) of the Act, empowered ASADA to conduct investigations of
possible anti-doping rule violations that may have been committed by athletes or support
persons.
3
2. Neither the Act. the Regulations nor the NAD Scheme authorised ASADA to conduct a
joint investigation with any other entity, incfuding a sporting administration body.
3. At all relevant times up to and including 31 July 2013. the conducting of a purported -joint
investigation- by ASADA was inconsistent with:
3.1 the oonstraints imposed on -entrusted persons· (Including members of ASADA
staff) by s 71 of the Act relating to the disclosure of NAO scheme personal
Information: and
3.2 the limited circumstances in which clause 4.21 of the NAD Scheme, read with
s 13( 1 )(g) of the Act, permitted disclosure of that information to a sporting
administration body - namely I where:
(a) the information was information of the kind described in dause 4.21 (1) of the
NAO Scheme; and
(b) the disclosure was for the purpose of or in connection with an investigation
into possible violations of the anti-doping rules within s 13(1 )(g) of the Act;
and
was ultra vires the Act, the Regulations and the NAO Scheme.
L-In ab.out February 2013, but upon a date unknown to the Applicant, ASAOA and the
Australian Football League (the AFLj entered Into an agreement whereby ASAOA and the
AFL would conduct. each with the aid of the other, what both ASAOA and the AFL
thereafter described as a -jOint investigation~ (the Agreement).
4,LFrom February 2013, despite the absence of any power In ASAOA to conduct a "joint
investigation- and the constraints on the disclosure of information by members of ASADA
staff, ASADA purported to conduct with the AFl a -joint investigation- into the Essendon
Football Club, its players and officials in respect of allegations of an anti-<loping rule
violation t..Wlder the Act (the Joint Investigation).
~~In the course of the Joint Investigation and before 1 August 2013, members of ASAOA
staif and employees of the AFL jointly interviewed the EFC players and EFC personnel,
and represented the investigation as:
li4§.La joint investigation between the AFL and ASAOA; and
r
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lH6~an investigation to which the EFC players and EFC personnel were compelled to
provide information in answer to questions asked by members of ASADA staff
and employees of the AFl.
BA. Further, in the course of the Joint Investigation:
6A.1 ASADA provided the AFl with Immediate access to confidential information
provided by EFC players and EFC personnel at interviews by permitting AFL staff
to attend, jointly conduct. and tape record those Interviews for purposes
extraneous to ASADA's investigation: and
6A.2 ASADA prOVided the AFl with access to documents and records obtained by
ASADA in the course of its investigation and permitted the AFL to use this
information for purposes extraneous to ASADA's investigation.
f:l.:.Lln August 2013. ASADA prepared and published a document it called an -interim reporf
(the Interim Report), based on information obtained during the Joint Investigation. The
Interim Report was provided to:
6,4L1Jhe Applicant;
~7.2 members of the AFL·executlve;
&.-37.3 each and every member of the AFL Commission; and
7.4 other persons and entities, unknown to the Applicant. who were neither athletes
nor persons otherwise permitted by the Act and the Regulations to receive the
information contained in the Interim Report.
7 A. By providing the Interim Report. Including any versions or drafts thereof, to the AFL.
ASADA:
7A.1 acted in breach of the confidentiality obligations imposed on ASADA by the Act (s
13(1)en and (g) and s 71) and the NAD Scheme ·(clause 4.21); and
7A.2 acted for purposes extraneous to those of ASADA in furthering its own
investigation Into possible violatioos of the anti-doping rules.
-7--:48 .1 ASADA lacked any power to conduct the Joint Investigation: aREJ
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8.2 the Joint Investigation contravened the constraints on disclosure of NAO sdleme
personal information; and
.1-.28.3 the Interim Report was disseminated by ASADA In breach of Its obligations of
confidentiality and for purposes extraneous to the furthering of ASADA's own
investigation;
the infonnation collected during the Joint Investigation (being the information on which
the Interim Report was based) cannot qualify as evidence or information received by the
Respondent for the purposes of clause 4.07A(1) of the NAO Scheme. as it has stood
since 1 August 2013.
S:-Lln the absence of such evidence or information. the Respondent has no power, under
clause 4.07A(1) and (2) of the NAD Scheme, to:
8-:49.1 determine that there is a possible non-presence antt-doping rule violation that
warrants action by the Respondent; or
9.2 give a notice to any EFC player or EFC personnel of that possible non-presence
anli-doping rule viotation.
9A. All notices purportedly issued by ASADA to EFC players under clause 4.07A of the NAD
Scheme are invalid.
G.1 O. ,The Applicant is and was at all relevant times a club licensed to field a team in the
competition conducted by the AFL and subject to the AFL Regulations and the AFL Player
Rules.
~ The issuing by the Respondent of any notices to any EFC player or EFC personnel arising
from or relying on infonnation obtained In the joint Investigation is likely to cause the
AppRcant damage to its reputation and business interests.
Applicant's address
The Applicant's address for service is:
Place: Josh Bomstein Principal, Maurice Blackbum Level 10, 456 Lonsdale Street, Melboume,
Victoria 3000
Email: jbomstein@mauri~blackburn.com.au
The Applicant's address is 275 Melrose Drive, Melbourne Airport, Victoria,
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Service on the Responctent
It is intended to serve this application on the Respondent.
Date: 4:! 27 June 20t 4
Signed "by Josh Bornstein on behalf of Maurice Blackburn lawyers
Lawyers for the Applicant