Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 569 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: JAMES ALBERT HIRD

AND: CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY

JUDGE: KENNY J DATE: 9 October 2014 PLACE: MELBOURNE

the application before the court 1 By an interlocutory application filed on 2 October 2014, the applicant in this application, Mr James Hird, seeks an order that his appeal be fixed for hearing on an expedited basis. Subject to the time-tabling issues outlined below, the respondent does not oppose the making of this order. 2 If an order for an expedited hearing is not made, Mr Hird's appeal would in the ordinary course be heard in the period February-March 2015. For the reasons stated below, I would make the expedition order sought by Mr Hird and fix the hearing of his appeal for Monday 10 November 2014. 3 In support of his application, Mr Hird relied on the affidavit of his solicitor, Mr Steven Amendola, sworn on 2 October 2014, as well as on two letters between the parties' solicitors - the first from the respondent's solicitor dated 6 October 2014 and the second, from Mr Amendola also dated 6 October 2014. 4 The respondent relied on the affidavit of Craig Leslie Rawson affirmed on 7 October 2014.

the Parties' submissions 5 As well as an expedition order, Mr Hird initially sought time-tabling orders, which, if made, would have his appeal ready for hearing by Monday 27 October 2014. In keeping with this proposed time-table, he initially sought an order that his appeal be listed for oral argument for one day before a Full Court of this Court as soon as practicable on or after that date. As his reply submissions confirmed, however, Mr Hird ultimately seeks that the appeal be listed for hearing preferably on 5 November 2014, or on any of a number of other days between 3 November 2014 and 13 November 2014, when, on the respondent's advice to the Court, its counsel were available. 6 The respondent, who is the Chief Executive Officer (CEO) of the Australian Sports Anti-Doping Authority (ASADA), submits that preparation for the appeal was likely to be seriously compromised if the appeal was listed on, or in the week of, 27 October 2014, as Mr Hird initially sought. The CEO of ASADA contends that, if the Court considers it appropriate to list the appeal in the November 2014 sittings, the appropriate listing would be 24 November 2014. The respondent agreed that the hearing of the appeal would require one day. 7 Although not opposing an expedited hearing order per se, the CEO of ASADA contends that Mr Hird has not demonstrated the requisite urgency to have the matter listed on an expedited basis before the November sittings. In the CEO's submission, this is because: (1) the factors that contributed to the decision of the primary judge to expedite the trial no longer exist; (2) the primary judge found that Mr Hird had acquiesced in, and co-operated with, the joint investigation conducted by ASADA and the Australian Football League (AFL) and, in any event, Mr Hird took no active steps to institute proceedings for some 15 months after April 2013; and (3) the individuals directly affected by the statutory process commenced against them under the Australian Sports Anti-Doping Authority Act 2006 (Cth) (the Act) have expressly welcomed the continuation and conclusion of those processes and there is no evidence of any imminent exposure of Mr Hird to them. 8 Mr Hird submits that the interests of justice support the exercise of discretion in favour of an expedited hearing order. In support of this central submission, he refers to numerous factors, including that: (1) he sought to have the issues heard and determined as soon as possible after the issue of the show cause letters to 34 then current and former players (34 Players) at the Essendon Football Club (Essendon); (2) he has always contended that the joint investigation was unlawful; (3) he remains the Senior Coach of Essendon and is still, 20 months on from February 2013, subject to possible sanction under the statutory regime arising out of the joint investigation; (4) based on media reports, the CEO of ASADA intends to resume the show cause process under the NAD Scheme (see Sch 1 of the Australian Sports Anti-Doping Authority Regulations 2006 (Cth)) involving the 34 Players; (5) the statutory process will continue and utilise information obtained from the joint investigation; and (6) the matter is of significant, national public profile with a continuing interest in the legality of the investigation and the manner in which the statutory processes will proceed. 9 Mr Hird's submissions in reply to the CEO of ASADA focussed on the timing of the appeal and the preparatory steps. He advanced a number of reasons as to why the respondent's proposed 24 November 2014 date would not "reflect proper expedition". 10 Further, apparently with a view to limiting the scope of the appeal, the preparation for it and the duration of the hearing, Mr Hird abandoned the appeal grounds alleging error in the finding of the primary judge that what is termed "the interim report" was for a proper purpose and within power. This meant, so it was submitted, that the focus of the appeal would be on "the lawfulness of the joint investigation, questions of statutory construction and ultra vires"; and that Mr Hird would "not put in issue any factual finding".

BACKGROUND 11 In order to evaluate the parties' submissions, it is necessary to refer briefly to the circumstances surrounding the appeal. The following account is derived from the reasons for judgment of the primary judge (see Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019) and from the affidavits filed by the parties in this application. None of what follows would appear to be controversial. 12 In early February 2013, the CEO of ASADA and the AFL agreed to conduct an investigation into the involvement of players and personnel from Essendon, including Mr Hird, in a supplements program implemented in 2011 and 2012. The investigation was part of a wider investigation by ASADA under the Act and the NAD Scheme. 13 On 12 June 2014, the 34 Players were issued with notices by the CEO of ASADA under cl 4.07A of the NAD Scheme (Notices) notifying them of possible anti-doping rule violations. On 13 June 2014, Essendon and Mr Hird commenced judicial review proceedings against the CEO of ASADA challenging the lawfulness of the investigation by the CEO of ASADA and the AFL that had led to the Notices. 14 On 19 September 2014, Middleton J dismissed the judicial review proceedings with costs. As already mentioned, on 2 October 2014, Mr Hird filed a notice of appeal against his Honour's judgment and also an interlocutory application seeking an expedited hearing. The Court is presently concerned with this latter application. 15 Essendon has not sought to appeal and the 34 Players have not sought to be joined as parties to, or participate in, the appeal. 16 Shortly after the judicial review proceedings commenced in June 2014, ASADA agreed to extend the time for the 34 Players to respond to the Notices until 14 days after they received further notification from the CEO of ASADA. The CEO of ASADA has now indicated that there is an intention to issue revised notices under cl 4.07A of the NAD scheme in the week commencing 13 October 2014. It is said that these notifications will recommence the statutory process of determining whether the recipients of the Notices have committed an anti-doping rule violation.

CONSIDERATION 17 Pursuant to s 25(2B)(c) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), which confers power to give directions about the conduct of an appeal, and r 36.11 of the Federal Court Rules 2011 (Cth) (the Rules), which relates to a party applying for directions in relation to the management, conduct and hearing of an appeal, a single Judge of the Court may make an order for the expedited hearing of an appeal in an appropriate case. 18 There is no dispute as to the relevant principles governing an application for expedition. The Court has a broad discretion. An order for expedition will not, however, be granted unless the Court is satisfied that it is in the interests of justice to make an order for an expedited hearing. 19 The factors falling for consideration in the exercise of the Court's discretion will depend, at least in part, on the particular case. Such factors may include whether, if the hearing did not take place at the earliest convenient time or prior to a particular date, the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home. Other factors include a serious detriment to good public administration or to the interests of others not party to the appeal. Hence, an appeal from a judgment on judicial review challenging the lawfulness of the conduct of public bodies or officials, especially where that conduct has implications for others or for the proper administration of the law, may well attract an order for an expedited hearing: see Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 ("Elders") at 400 to 402. 20 Other factors relevant to the Court's exercise of discretion relate to the parties' own conduct. Thus, the Court may consider whether the applicant for an expedited hearing order has proceeded with due speed prior to the date of the expedition application. The fact that a respondent does not oppose an application for expedition is also relevant. 21 The Court will also bear in mind the interests of other litigants in other cases and balance the likely consequences of refusing an order for expedition against any adverse effect on the parties to other appeals if the order is made: see, for example, British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718 at [7] (North J). Moreover, regard must also be had to s 37M of the Federal Court Act in the application and interpretation of s 25(2B)(c) of that Act and r 36.11 of the Rules. 22 Plainly enough, however, the above-mentioned considerations are not the only considerations relevant to the Court's exercise of discretion. Other factors will be relevant, depending on the nature and circumstances of the case. See, for example, Elders at 400-402 and Li v Chief of Army [2012] FCA 808 at [9] (Griffiths J). Further, the weight to be given to any particular consideration will also vary depending on the circumstances of the individual case. 23 The investigation into the involvement of Essendon players and personnel in the 2011-2012 supplements program, which the CEO of ASADA and the AFL agreed to conduct in some sense "jointly" or co-operatively, was initiated around 20 months ago. This means that Essendon players and personnel involved or potentially involved in the investigation have been subject to the anxieties, uncertainties and pervasive concerns that an investigation of this kind might reasonably provoke for a significant time. Based on the respondent's current intentions, the 34 Players, who originally received the Notices of possible anti-doping rule violations under cl 4.07A of the NAD Scheme, are shortly to receive revised notices, with a view to recommencing the process of determining the allegations against them of possible anti-doping rule violations. In this event, they will continue to be subject to these anxieties, uncertainties and concerns for some time yet. The potentially serious consequences of the statutory process for the 34 Players must be borne in mind. Public statements by Essendon and the players' association regarding the investigation and the need for it to be concluded as soon as possible do not detract from the gravity of the consequences that may be faced by the 34 Players. As the primary judge said (Primary Judgment at [47]-[50]): If the Notices are left to stand, and the information upon which the decision to issue the Notices was unlawfully obtained the following consequences could occur. First, upon consideration of any material provided to the [Anti-Doping Rule Violation Panel (ADRVP)], it may determine to make an entry in relation to the 34 Players on the Register [of Findings (Register)] (see cl 4.07A(3)(d) [of the NAD Scheme]), and ASADA may publicly disclose details of that entry (see cl 4.07A(3)(g)). Secondly, the making of a finding and the entry of any one player onto the Register would likely result in the AFL issuing an infraction notice to that player pursuant to the Player Rules and the AFL Code. Such infraction notice could be issued with respect to the alleged substance Thymosin Beta 4 (the substance to which attention has been focussed), which for the purposes of the AFL Code, is a "non-specified substance". Finally, the issuing of such an infraction notice could have consequences for a player, including immediate suspension. 24 Mr Hird's submissions raised the possibility that he might be sanctioned under the statutory regime as a consequence of the investigation but, as the respondent observed, there was no evidence of any imminent exposure of Mr Hird to any such action. Leaving aside the possibility of sanction under the statutory regime, as Essendon's Senior Coach, Mr Hird is evidently concerned in the investigation and its on-going effect on his reputation, including his professional and business reputation. Furthermore, like the 34 Players and other Essendon personnel, if the investigation is relevantly lawful, it seems that he can be obliged to attend further interviews and answer further questions fully and truthfully, or face possible sanction by the AFL: see Primary Judgment at [67]. 25 The appeal is from a judgment on judicial review challenging the lawfulness of the decision and the conduct of a public official - the CEO of ASADA - in agreeing with the AFL to conduct and in conducting what has been termed a joint investigation. This conduct has continuing and potentially serious implications for the 34 Players and Mr Hird, given the stated intention of the CEO of ASADA to recommence the investigation, particularly having regard to ASADA's argument before the primary judge that "an important feature of the legislative scheme was that ASADA is able to rely on the exercise of compulsory powers by sporting organisations": see Primary Judgment at [339]. 26 As the primary judge observed (Primary Judgment at [10]), whilst neither the CEO of ASADA nor ASADA had the power to compel and sanction, ASADA benefitted from the contractual power of the AFL to compel and sanction the Essendon players and personnel for failure to participate in the investigation, attend interviews and produce documents. The primary judge held that this benefit was obtained in the lawful exercise of ASADA's statutory power. On his appeal, Mr Hird will argue that, to the contrary, the benefit was not so lawfully obtained. If this appeal is not heard at the earliest convenient date, then there is a detriment to good public administration, either because the investigation, though lawful, continues under a cloud of uncertainty pending the determination of the appeal, or because the investigation is held to be an unlawful exercise of statutory power, as the appeal seeks to establish. 27 Mr Hird, as the appellant, has acted with due speed in instituting his appeal and in seeking an expedited hearing. The CEO of ASADA does not oppose an order for expedition, providing the hearing date does not compromise preparation for the hearing of the appeal. 28 Furthermore, if the Court makes an order for an expedited hearing, in this case at least, the interests of other appellants in other appeals can be adequately accommodated. 29 Based on the above considerations, I am satisfied that an order for an expedited hearing is in the interests of justice. 30 Bearing this in mind, together with the interests of other litigants in other cases and the Court's current caseload, the appeal can most conveniently be heard on 10 November 2014. The parties have advised that all their legal representatives are available on that date. It does not appear to me that the parties' preparation would be unduly compromised if this date were fixed for the hearing of the appeal. Accordingly, I propose to make an order fixing the appeal for hearing on that day and to make other necessary time-tabling orders. The costs of the application will be reserved. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.