VZZ v Australian Sports Drug Agency

HIS HONOUR: 1 On 22 June 2001, the applicant filed a notice of appeal, apparently relying on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal ("the Tribunal") on 22 June 2001 ordering that a stay against the decision by the respondent, the Australian Sports Drug Agency ("the Agency"), on 10 May 2001 be refused. 2 The applicant's notice of appeal sets out the following question of law raised on the appeal: "The registrar [a reference to the Tribunal] has misinterpreted, or not accounted for, oral representations made by the chief drug testing officer at A.S.D.A. in relation to the time frame for making final defence submissions in relation to the 2nd positive test." 3 The notice of appeal seeks an order that the applicant have her name removed from the Agency's Register of Notifiable Events established pursuant to reg 26 of the Australian Sports Drug Agency Regulations 1999 ("the Regulations") until a full hearing in August of her application for review by the Tribunal of the Agency's decision to place her name on that register. The grounds on which the review is sought are that the applicant has been suspended for two years by Athletics Australia and has been removed from the Australian team to compete at the world junior championships in Hungary in July. Apparently the team leaves for a pre‑departure camp on Thursday, 28 June. 4 On the same day, the applicant filed a notice of motion seeking an order that the applicant's name be removed from the Agency's Register of Notifiable Events until a full hearing of her application for review by the Tribunal of the Agency's decision to place her name on that register. On 26 June 2001, the Agency filed a notice of motion seeking an order pursuant to O 20 r 2 of the Federal Court Rules that the proceeding be dismissed. 5 The relevant facts leading up to the institution of the appeal in this Court can be taken from the documents which were before the Tribunal, and in particular the Agency's statement on findings on material questions of fact which was filed with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act. 6 The applicant is presently 17 years of age, having been born on 7 February 1984. On 4 March 2001, at the Telstra Athletics Grand Prix in Perth, the Agency selected the applicant for drug testing, and on the same day a urine sample was collected from the applicant at the Perry Lakes Stadium in Perth. A sample collection procedure was followed. For present purposes it is not necessary to set out the details of that procedure. It is sufficient to say that the sample was collected in the presence of an Agency representative and an athletes' representative. Two samples were taken within about 70 minutes of each other. They were then mixed together and put into two separate containers. It is said by the Agency that at all times during the relevant parts of the procedure, the Agency representative had the applicant and the samples taken under observation. 7 The applicant says that during the taking of the second sample she accidentally dropped the beaker into which the sample was to be passed and that the sample may have been contaminated. The Agency representative has said that she did not observe anything unusual occur and that she viewed the sample being provided. The circumstances in which the second sample was taken are therefore contentious. 8 The samples were delivered to the Australian Sports Drug Testing Laboratory in Sydney on 7 March 2001. That laboratory is a fully-accredited laboratory for the purpose of the testing for the use of drugs in sport. One sample was analysed on 21 March and revealed the presence of metabolites of Nandrolone and Stanozolol. They are scheduled drugs under the International Olympic Committee doping classes and methods maintained by the Agency pursuant to s 9 of the Australian Sports Drug Agency Act 1990 (Cth). 9 The applicant was notified of the first sample analysis result, her entitlement to have a final test on the second sample and her right to view that test. That second test was carried out in the presence of the applicant on 11 April 2001. The analysis of the second sample disclosed metabolites of Nandrolone and Stanozolol. The laboratory notified the Agency in writing of the analysis on 17 April. On 23 April the Agency notified the applicant of the positive test result. The applicant was given the right to make a submission to the Agency within seven days if she had any information or evidence that could affect the validity of the test results. 10 That letter was apparently received by the applicant on 27 April 2001. The applicant's father informed the Court that he spoke to Ms Anne Gripper, the Manager of drug testing, who indicated in general terms that she would make further contact with the chaperone who had supervised the test and would give the applicant the opportunity to make final submissions in relation to the testing after she had provided further information to the applicant. At that time, the applicant's father indicated to Ms Gripper that it was the intention of the applicant to make a further submission once the further material had been obtained. 11 The applicant's complaint is that she was never given the opportunity to prepare a final submission. What happened was that on 10 May 2001 the Agency wrote to the applicant, notifying her that it was satisfied that the positive test result was valid. In that letter, the Agency said that it took into account the letter from the applicant's father dated 10 April 2001, in which the applicant explained how she accidentally dropped the beaker at the time the second sample was being taken. 12 The Agency said in the letter that details of the positive test result in respect of the applicant had been entered on the Register of Notifiable Events maintained by it. Those details included the name of the applicant, the applicant's sport, the relevant substance and the date and State of the collection of the sample. The letter also notified the applicant that, in accordance with reg 31 of the Regulations, details of the entry had been given to Athletics Australia, the Australian Sports Commission and the Australian Olympic Committee. 13 On the same day, 10 May 2001, the Agency wrote to each of those organisations, giving each organisation the details of the entry made on the Register. I was informed by the applicant's father that as a result, Athletics Australia has suspended the applicant from competition for two years and removed the applicant from the team to represent Australia at the World Youth Championships to be held in Hungary in July this year. 14 Section 15(4) of the Australian Sports Drug Agency Act and reg 61 of the Regulations gave the applicant a right to apply to the Tribunal for review of the Agency's decision. On 15 May 2001, the applicant lodged an application with the Tribunal for review of the Agency's decision of 10 May 2001. The application set out the following reasons for the application: "The decision is wrong for the following 2 reasons: (a) There was a break in the chain of command; (b) This resulted in a contaminated sample." Apparently the applicant applied for a stay of the Agency's decision pursuant to s 41(2) of the Administrative Appeals Tribunal Act. A hearing was held on 22 June and the stay was refused. The order refusing the stay is before the Court but no reasons for the decision have been published by the Tribunal, no doubt having regard to the short time which has elapsed since the date of the decision. 15 On the date on which the applicant filed her notice of appeal and the notice of motion with the Court, she filed an affidavit in which she said that: · she was innocent of the positive tests alleged by the Agency; · the three sporting organisations had been notified of the entry on the Register before she could make final submissions to the Agency; · her defence was based on a breach of s 17A(3)(c) of the Australian Sports Drug Agency Act. Presumably that is either that the sample supplied by her was tampered with or that there were not in place procedures to ensure that samples taken were not tampered with; · evidence was still being prepared for the August hearing. 16 I should identify briefly the structure of the statutory and regulatory environment in which this issue arises. A regime has been established under the Australian Sports Drug Agency Act and the Regulations for the testing of persons who compete or have been selected to compete as a representative of Australia in international sporting competitions. Section 2A of that Act expands the scope of persons who are defined as competitors for the purposes of the Act. For example, it includes an Australian citizen or a permanent resident who has been assessed by an Australian National Sporting Organisation as having the potential to represent Australia in international sporting competitions. 17 The Agency is established pursuant to s 6 of the Act. Its objects are set out in s 8 and they include "to deter the use of drugs or doping methods in sport". The functions of the Agency are set out in s 9 of the Act and include in subs (1)(a), "such functions as are conferred on the Agency by a drug testing scheme". 18 Section 11(1) provides that the Regulations may formulate one or more drug testing schemes, and subs 11(2) sets out the provisions to be contained in a drug testing scheme. In particular, it requires the agency to establish and maintain a Register of Notifiable Events for the scheme. Section 11(2)(f) requires the Agency to enter the name of a competitor on that Register in circumstances where the competitor has returned a positive test result in relation to a sample. Section 14 sets out the circumstances in which a positive test result may be established. Section 15(4) gives a competitor the right to apply to the Tribunal for a review of the decision of the Agency to enter the competitor's name and particulars on the Register of Notifiable Events for the scheme. There is set out in ss 17, 17A and 17B procedures in relation to the requesting of a sample, procedures for dealing with a sample and the disclosure of information to sporting administration bodies. 19 A particular drug‑testing scheme has been set up pursuant to reg 6 of the Regulations. Regulation 15 provides that the Agency can ask a competitor for a sample. Regulation 24 provides that it can ask a laboratory to test a sample. Regulation 26 provides for the establishment of a Register of Notifiable Events, and reg 29 provides for the circumstances in which an Agency must enter on the Register the name of the competitor and the details of the test result. Regulation 31 requires the Agency to give written notice about an entry on a register to the relevant bodies. Regulation 61 gives a right to apply to the Tribunal for a review of the decision to enter a competitor's name and information about the competitor on the relevant register. 20 It is with that background that the appeal comes before the Court. 21 A threshold question arises whether the Court has jurisdiction to entertain an appeal against what is in effect an interlocutory decision of the Tribunal, that is to say, one which does not constitute the effective decision or determination of the application for review which has been lodged with the Tribunal. 22 The Agency submitted that the decision of the Tribunal on 22 June 2001 was not a decision which could be the subject of an appeal to this Court. The order made by the Tribunal was the refusal of a stay. It is clearly an interlocutory order because it does not dispose of, or finally determine, the application for review which is before it. There is authority for the proposition that s 44(1) of the Act is limited to appeals against final determinations. In Director‑General of Social Services v Chaney (1980) 47 FLR 80 Deane J, with whom Fisher J agreed, said at 100: "The word 'decision' is a work of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate ..." Deane J went on to say at 103: "The conclusion which I have reached is that, subject to the qualifications mentioned below, [not relevant for present purposes] an appeal under s. 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s. 43 of the Act." See also Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 447; Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877. 23 The issue which is raised before me, that is, an appeal against the refusal of an order for a stay, does not go to the issue of jurisdiction, so recourse cannot be had to s 39B of the Judiciary Act 1901 (Cth): cf Bogaards v McMahon (1988) 80 ALR 342. I also do not consider that the order which has been made falls within s 44(2) of the Administrative Appeals Tribunal Act. That section allows an appeal where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision. The person may appeal to the Federal Court of Australia from the decision of the Tribunal. Those are limited exceptions to the general principle to which I have referred, but they do not apply in the present circumstances. Although it may be said that the interests of the applicant are affected by the order which is made, the Tribunal has not made a decision contemplated by s 44(2) that the interests of the applicant are not affected by the decision. 24 In those circumstances, I have reached the conclusion that I do not have jurisdiction to entertain the appeal as it is not an appeal from a decision of the Tribunal which is the effective decision on, or determination of, the application for review before the Tribunal. That application sought a review of the Agency's decision to enter the applicant's name on the Register of Notifiable Events. That review has not yet been undertaken. It also follows that I do not have jurisdiction to entertain the applicant's notice of motion. For those reasons, the Agency should obtain the relief sought in the notice of motion which it has filed and the appeal should be dismissed. 25 I should also say that even if an appeal were to lie, it only lies on a question of law. An appeal under s 44 is not a rehearing: Brown v The Repatriation Commission (1985) 7 FCR 302 at 305. No question of law has been identified by the applicant as arising out of the decision of the Tribunal. No question of law can be identified in the application or in the affidavit filed on her behalf or in the submissions made on her behalf by her father. Although I do not have the benefit of detailed reasons of the Tribunal for its decision, I am unable to discern in the issue which is before me any question of law. The grounds set out in the application before the Court challenge the procedure adopted by the Agency. But I do not sit on appeal from the Tribunal on all issues, I am confined to an appeal on a question of law. 26 When the notice of appeal was filed in the Court, an application was made that leave be granted to institute the proceeding in the name of the applicant to be shown as "VZZ" and that the title of the proceeding show "VZZ" as the name of the applicant. I was asked in substance to make an order that the applicant's name not be published. At that time, I made an order to that effect pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth). I also made an order that the name of the applicant or anything liable to identify the applicant with this present proceeding not be published except to the legal representatives of the parties and to officers of the Agency. I made that order, at that time, to preserve the opportunity for the applicant to make a submission for the continuation of that order before me today. The continuation of that order was not opposed by the Agency. 27 The power to make the orders sought as to non-publication is found in s 50 of the Federal Court of Australia Act which provides: "The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth." 28 The principles in relation to whether such an order should be made make it clear that in considering such an application, the Court is concerned to protect the integrity of the system of the administration of justice or the security of the Commonwealth. As Hill J pointed out in SRD v Australian Securities Commission (1994) 52 FCR 187 at 190: "It must be noted, however, that s 50 does not authorise the making of suppression orders merely because it would be just, in some abstract sense, that such order be made. Rather, s 50 speaks of prejudice to the administration of justice." His Honour then looked at the balancing exercise which was required and said at 191: "What is required of me in the present case is the balancing against the prejudice, which I will assume is likely to occur to the Accountant and/or his firm by publication, on the one hand, with the countervailing public interest in open justice, on the other, to determine whether or not a suppression order should be made and if so upon what terms. As Parish's case shows it would be an error to consider only the private interests of the applicant or his firm and to ignore other relevant public interests such as the preservation of the ability of a party to litigation to effectively achieve the remedy sought and the desirability of open justice. … The function of open justice allows the public to know accurately what and who is the subject of the Court's proceedings. A corollary is that it allows the public to know who and what is not subject to those proceedings. Accurate knowledge of such things prevents unwarranted suspicion or speculation as to the Court's business, which suspicion or speculation might embarrass or prejudice others engaged in the same professional field but not the subject of proceedings before the Board. There is also much to be said for the view that the public confidence in the fair operation of the legal system could be lessened were I to make orders as requested. The continued suppression of the name of the Accountant and his firm gives rise to the appearance of special treatment or discrimination by the Court to persons of a particular group or status. His Honour also drew a distinction between proceedings before a Tribunal and a Court. His Honour said at 193: "There is a fundamental difference between the Board and the Tribunal, on the one hand, and the Court, on the other. The former are part of the layers of administrative decision-making, the latter exercises the judicial power of the Commonwealth. As Deane J said in Parrish (at 115): 'Publicity 'is the authentic hallmark of judicial as distinct from administrative procedure'." See also A v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327; Minister for Immigration and Ethnic Affairs v Quan (unreported, Sackville J, 16 December 1994). 29 In the circumstances, I consider it appropriate that the order made under s 50 continue. I take into account the following circumstances. The applicant is aged 17 years of age and there is the potential for substantial damage to her reputation and career, especially at this early stage of her career, if an order is not made pending the final outcome of the review before the Tribunal which has not yet taken place. 30 Although, as Hill J pointed out in SRD v Australian Securities Commission (supra), there is a fundamental difference between a Tribunal and the Court, I take into account that the Tribunal has made a similar order, presumably under s 35 of the Administrative Appeals Tribunal Act, pending the determination of the review before it. The form of order which was made by the Tribunal on 22 June 2001 is headed "Re VZZ v Australian Sports Drug Agency". Under s 35(2) of the Administrative Appeals Tribunal Act, the Tribunal was empowered to make an order prohibiting the publication of the names of witnesses appearing before it. 31 This is an unusual case because of the order already made by the Tribunal which is still operative pending its decision on the review. It is desirable and appropriate that the preservation of that situation put in place by the Tribunal be maintained pending the determination of the review before the Tribunal. If I were not to grant the order sought at this stage, that refusal would render ineffective the order made by the Tribunal. In all the circumstances, it seems to me appropriate that, until the hearing and determination of the application for review before the Tribunal, the procedure adopted by the Tribunal be maintained. Although the Court is concerned to ensure that open justice is maintained wherever possible, I consider that the particular circumstances of this case, particularly the young age of the applicant and the fact that the review by the Tribunal is yet to take place, make it appropriate to make an order under s 50 of the Act. 32 The respondent has sought an order that the applicant pay the costs of the proceeding. It has been submitted that the applicant has no assets with which to pay the costs. The usual order as to costs is that the costs follow the event, although it is a matter for the discretion of the Court. In the circumstances that I have outlined, where I am satisfied that the appeal was bound to fail at the outset, I consider the appropriate order is that the applicant pay the respondent's costs of the proceeding. Issues of enforcement are not matters that I need to take into account at the present time. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.