Mega Thread Questions about the ASADA/ EFC/ players and the legal process/ defences/ liability

[carnthedons]

Posted in the other thread, but (assuming EFC have standing - and I think that they almost certainly do) the EFC are applying for an interlocutory injunction.

Basically its interim relief pending a final order (i.e. 'please forbid ASADA from continuing with the SC process while this matter is before the courts').

It was always going to happen.

Yes and it would seem to be a logical step while the integrity and legality of the investigation which led to the SC notices is in front of a court, not sure what MC Dev's issue with this is, as an ex-cop he should understand the need for evidence to be legally admissible before it is used.

 

[Malifice]

Yes and it would seem to be a logical step while the integrity and legality of the investigation which led to the SC notices is in front of a court,

There is no question as to integrity here mate. Its a challenge to the use of statutory powers granted to ASADA under the ASADA Act.

not sure what MC Dev's issue with this is, as an ex-cop he should understand the need for evidence to be legally admissible before it is used.

The evidence is legally admissable as we speak. It will remain legally admissable until and unless the Federal Court rules otherwise.

 

[Malifice]

Pardon me if it has not been asked.

But, if Essendon had a legal issue such are fraud etc, would there be any solid legal reasons we would not have heard of if by now? And are any of the below solid reasons (or just a deluded Essendon supporter pinning hopes on anything)

Fraud as against whom exactly? Im assuming Dank.

If you were EFC would you pursue fraud charges against Dank (in effect claiming that he administered prohibited PED's to your players without your consent) at this stage?

Remember, EFC are claiming (at present) that they dont know what was administered to its players.

Also, what would you gain from such a claim, even if you were succesfull?

Dank doesnt strike me as having anywhere near the money to to make it worthwhile.

Once it goes legal it means it all comes out, mistakes, drugs both administered and ones purchased fraudulently, things Essendon if they had a choice would prefer to keep out of the public. but if if clears players so be it.

Again mate, whats the point? Any victory would by pyrrhic. Not a chance in hell of recovering tens millions of dollars from Danky boy.

You'd be lucky to recover a cent, and would lose more money in the proceedings to even get the (practically unenforceable) order in the first place.

Go after those with the deepest pockets. Or at least those with pockets.

 

[Boxhead_31]

Malifice Martin Hardie is basing his thinking that the EFC action will be successful on this section of the NAD.
Do you think it holds any weight?

4.21 Non-entry information
(1) This clause applies to information that:

(a) is not information arising out of an entry on the Register; and

(b) relates, or appears to relate, to a person in connection with a possible anti-doping rule violation by an athlete or support person.

(2) For paragraph 13 (1) (g) of the Act, ASADA may disclose the information to all or any of the following:

(a) a sporting administration body;

(b) the Australian Federal Police;

(c) the Australian Customs Service;

(d) the Therapeutic Goods Administration;

(e) Federal, State or Territory law enforcement bodies.

(3) Nothing in this clause limits, or is limited by, any other provision of the NAD scheme under which ASADA is required or authorised to disclose information.

(4) If a body mentioned in subclause (2) is not subject to the Information Privacy Principles or the National Privacy Principles contained in the Privacy Act 1988 or a law that is substantially similar to the Information Privacy Principles or the National Privacy Principles, before disclosing personal information to the body, ASADA must enter into a legally binding agreement with that body to ensure that any personal information that is disclosed is:

(a) not used or disclosed by that body for a purpose other than the purpose for which the information is given to the body; and

(b) securely retained and restrictions placed on who can access the information; and

(c) destroyed or returned to ASADA once the purpose for which the disclosure is made is completed.

4.22 Making information publicly available
(1) For paragraph 13 (1) (m) of the Act, ASADA is authorised to publish information on and related to the Register only if:

(a) ASADA:

(i) considers the publication to be in the public interest; or

(ii) has received the consent to the publication by the athlete or support person to whom the information relates; and

(b) any of the following apply:

(i) a decision has been handed down for a hearing process conducted in accordance with Article 8 of the World Anti‑Doping Code, in relation to the finding concerning the information, by a sporting tribunal;

(ii) the athlete or support person has waived his or her right to a hearing;

(iii) the athlete or support person has refused to recognise the jurisdiction of a sporting tribunal to conduct a hearing process in relation to the finding concerning the information; or

(iv) no sporting tribunal has jurisdiction to conduct a hearing process in relation to the finding concerning the information; and

(c) if the athlete or support person applied to have the decision to make the entry reviewed by the Administrative Appeals Tribunal:

(i) for information for which the Administrative Appeals Tribunal has granted an order under subsection 35 (2) of the Administrative Appeals Tribunal Act 1975 — the review process has been finally determined; or

(ii) the Administrative Appeals Tribunal has not granted an order under subsection 35 (2) of the Administrative Appeals Tribunal Act 1975; or

(iii) the athlete or support person has not applied to the Administrative Appeals Tribunal for a review of the decision within the applicable timeframe.

Note In accordance with the definition of World Anti‑Doping Code in subsection 4 (1) of the Act, the reference in subparagraph (b) (i) to the World Anti-Doping Code is a reference to the World Anti-Doping Code as in force from time to time.

(2) For subclause (1), ASADA may determine:

(a) the way in which the information is to be made publicly available; and

(b) the times at which the information is to be made publicly available.

 

[carnthedons]

There is no question as to integrity here mate. Its a challenge to the use of statutory powers granted to ASADA under the ASADA Act.



The evidence is legally admissable as we speak. It will remain legally admissable until and unless the Federal Court rules otherwise.

Thanks for the clarification on this one, seems a bit arse about to me but I'll defer to your expertise

 

[slashin_velvet]

Heres a question for all the legal eagles, an apologies if it's been asked here or elsewhere.

If Essendon are successful with this action, I am led to believe that there is nothing stopping ASADA from starting the investigation again from the top. We know that ASADA has a range of evidence in the form of physical and electronic evidence, in addition to interviews with players and officials. It would be expected that players and officials may not be as forthcoming in a second round of interviews, however is there any action ASADA can take now - in form of an injunction or otherwise - to ensure that electronic and physical evidence is preserved so that it cannot be shredded?

 

[carnthedons]

Heres a question for all the legal eagles, an apologies if it's been asked here or elsewhere.

If Essendon are successful with this action, I am led to believe that there is nothing stopping ASADA from starting the investigation again from the top. We know that ASADA has a range of evidence in the form of physical and electronic evidence, in addition to interviews with players and officials. It would be expected that players and officials may not be as forthcoming in a second round of interviews, however is there any action ASADA can take now - in form of an injunction or otherwise - to ensure that electronic and physical evidence is preserved so that it cannot be shredded?

I won't attempt to answer the second half but on the first part, if Essendon are successful they are looking to seek a permanent injunction on any of the evidence gathered. It would be almost impossible for ASADA to demonstrate it could investigate afresh without having their new investigation be guided by that which they were told in the first investigation in terms of what to ask, who to ask etc. As such, it would appear that any future investigation would be irreparably prejudiced by their earlier actions.

 

[jenny61_99]

Heres a question for all the legal eagles, an apologies if it's been asked here or elsewhere.

If Essendon are successful with this action, I am led to believe that there is nothing stopping ASADA from starting the investigation again from the top. We know that ASADA has a range of evidence in the form of physical and electronic evidence, in addition to interviews with players and officials. It would be expected that players and officials may not be as forthcoming in a second round of interviews, however is there any action ASADA can take now - in form of an injunction or otherwise - to ensure that electronic and physical evidence is preserved so that it cannot be shredded?

Why would ASADA shred their own evidence?

 

[slashin_velvet]

Why would ASADA shred their own evidence?

That evidence, as I understand, will not be legally admissable. They would have to reperform the investigation process from the top. That means re-collection & re-discovery. If Essendon are legally able to, it may be wise to destroy all possible incriminating evidence.

 

[Laphroaig]

Is there a chance that the injunctions will be thrown out on Friday?

My understanding is that it's not likely but I'm wondering if it's possible and under what circumstances the injunctions would be rejected at this stage.

IMO the only way they don't get the injunction is if the Court refuses to hear the case. And given that the Judge has flagged his intention to hear the case promptly, then we can assume it will be heard.

 

[invinciBlues]

Yes. Its an application to the court; its by no means guaranteed.

In your opinion, or any of the other law-talking-types around here, Laphroaig, Baldur, @The Prosecutor(?), what are the chances of this happening? Use whatever scale you feel is appropriate.

And as an aside, what time is the court case being broadcast on the ABC? Is there a set time, it will it be one of those "crossing to it live now" type thing?

 

[invinciBlues]

IMO the only way they don't get the injunction is if the Court refuses to hear the case. And given that the Judge has flagged his intention to hear the case promptly, then we can assume it will be heard.

Bugger. I was hoping that all this would be done with sooner rather than later.

 

[slashin_velvet]

And as an aside, what time is the court case being broadcast on the ABC? Is there a set time, it will it be one of those "crossing to it live now" type thing?

Federal court times are set - its not a press conference

https://www.comcourts.gov.au/file/Federal/P/VID327/2014/actions
https://www.comcourts.gov.au/file/Federal/P/VID328/2014/actions

Should be shown at 10:15. Shouldnt run for too long

 

[invinciBlues]

Federal court times are set - its not a press conference

https://www.comcourts.gov.au/file/Federal/P/VID327/2014/actions
https://www.comcourts.gov.au/file/Federal/P/VID328/2014/actions

Should be shown at 10:15. Shouldnt run for too long

Cheers mate they're both scheduled at 10.15 and heard by the same Judge? How does that work?

 

[slashin_velvet]

Cheers mate they're both scheduled at 10.15 and heard by the same Judge? How does that work?

As I understand it, the applications are on very similar grounds, for very similar issues/accusations (edit: and the same respondant), but have slightly differing angles given the parties bringing them to the fore...and the reasons for doing so.

I would expect, given it is usually an open court (nothing confidential in these directions hearings), that the court will hear all substantial matters that affect both parties, but may determine different trial dates and timelines depending on independant parties requirements.

 

[invinciBlues]

As I understand it, the applications are on very similar grounds, for very similar issues/accusations, but have slightly differing angles given the parties bringing them to the fore...and the reasons for doing so.

I would expect, given it is usually an open court (nothing confidential in these directions hearings), that the court will hear all substantial matters that affect both parties, but may determine different trial dates and timelines depending on independant parties requirements.

Cool. Thanks again

 

[slashin_velvet]

Also worth noting that by 4pm this evening, both parties need to lodge substantial documentation about their intent, needs and forecast timelines. Based on what i've read...this seems very much a formality of...rock up, work out a date that everyone is happy with, and have a lovely afternoon.

http://www.fedcourt.gov.au/__data/assets/pdf_file/0017/25244/17-Jun-2014-Chambers-Email.pdf

 

[Malifice]

In your opinion, or any of the other law-talking-types around here, Laphroaig, Baldur, @The Prosecutor(?), what are the chances of this happening? Use whatever scale you feel is appropriate.

My gut says its very probable.

The Court will weigh up the disadvantage to both parties if the injunction is (or is not granted), and the relative strength of the EFC case (amongst other things). ASADA dont really lose much if the injunction is granted, EFC stand to lose millions (and other non financial losses - this is important for the purpose of granting the injunction) if it is not granted.

Delaying ASADA by a few months as against the losses faced by the EFC should get it over the line.

On the balance of probabilities I would lean towards an injunction being granted. Will be happy to be wrong on this one though.

And as an aside, what time is the court case being broadcast on the ABC? Is there a set time, it will it be one of those "crossing to it live now" type thing?

Dont know. Someone wanna tap Wookie on the shoulder and see if we cant a video posted. Im gonna be on a train to Melbourne Thursday night and will probably miss it.

 

[linuscambridge]

I thought this was interesting;

"i) considers the publication to be in the public interest; or"

Surely it would be within the realms of possibility that ASADA could argue that making the information publicly available, or at least available to the AFL, was in the public interest? Any thoughts on that from our legal eagles?

 

[Malifice]

Malifice Martin Hardie is basing his thinking that the EFC action will be successful on this section of the NAD.
Do you think it holds any weight?

4.21 Non-entry information
(1) This clause applies to information that:

(a) is not information arising out of an entry on the Register; and

(b) relates, or appears to relate, to a person in connection with a possible anti-doping rule violation by an athlete or support person.

(2) For paragraph 13 (1) (g) of the Act, ASADA may disclose the information to all or any of the following:

(a) a sporting administration body;

(b) the Australian Federal Police;

(c) the Australian Customs Service;

(d) the Therapeutic Goods Administration;

(e) Federal, State or Territory law enforcement bodies.

(3) Nothing in this clause limits, or is limited by, any other provision of the NAD scheme under which ASADA is required or authorised to disclose information.

(4) If a body mentioned in subclause (2) is not subject to the Information Privacy Principles or the National Privacy Principles contained in the Privacy Act 1988 or a law that is substantially similar to the Information Privacy Principles or the National Privacy Principles, before disclosing personal information to the body, ASADA must enter into a legally binding agreement with that body to ensure that any personal information that is disclosed is:

(a) not used or disclosed by that body for a purpose other than the purpose for which the information is given to the body; and

(b) securely retained and restrictions placed on who can access the information; and

(c) destroyed or returned to ASADA once the purpose for which the disclosure is made is completed.

4.22 Making information publicly available
(1) For paragraph 13 (1) (m) of the Act, ASADA is authorised to publish information on and related to the Register only if:

(a) ASADA:

(i) considers the publication to be in the public interest; or

(ii) has received the consent to the publication by the athlete or support person to whom the information relates; and

(b) any of the following apply:

(i) a decision has been handed down for a hearing process conducted in accordance with Article 8 of the World Anti‑Doping Code, in relation to the finding concerning the information, by a sporting tribunal;

(ii) the athlete or support person has waived his or her right to a hearing;

(iii) the athlete or support person has refused to recognise the jurisdiction of a sporting tribunal to conduct a hearing process in relation to the finding concerning the information; or

(iv) no sporting tribunal has jurisdiction to conduct a hearing process in relation to the finding concerning the information; and

(c) if the athlete or support person applied to have the decision to make the entry reviewed by the Administrative Appeals Tribunal:

(i) for information for which the Administrative Appeals Tribunal has granted an order under subsection 35 (2) of the Administrative Appeals Tribunal Act 1975 — the review process has been finally determined; or

(ii) the Administrative Appeals Tribunal has not granted an order under subsection 35 (2) of the Administrative Appeals Tribunal Act 1975; or

(iii) the athlete or support person has not applied to the Administrative Appeals Tribunal for a review of the decision within the applicable timeframe.

Note In accordance with the definition of World Anti‑Doping Code in subsection 4 (1) of the Act, the reference in subparagraph (b) (i) to the World Anti-Doping Code is a reference to the World Anti-Doping Code as in force from time to time.

(2) For subclause (1), ASADA may determine:

(a) the way in which the information is to be made publicly available; and

(b) the times at which the information is to be made publicly available.

Yeah, my feeling is that EFC's claim is (paradoxically) that the interim report should not have been released to the EFC or Hird.

Such disclosure appears to be prohibited under the ASADA Act and the NAD Scheme (using the section that you quoted).

ASADA can disclose to sporting administration bodies (the AFL) but not an employer or coach of a player under investigation under the Act.

Pretty funny claim for the EFC and Hird to be making when you think about it, but it may have legs.

 

[van peebles]

On the balance of probabilities I would lean towards an injunction being granted. Will be happy to be wrong on this one though.



Dont know. Someone wanna tap Wookie on the shoulder and see if we cant a video posted. Im gonna be on a train to Melbourne Thursday night and will probably miss it.

The only thing you will miss,is the new thread starting that will say "federal court agrees bombers are innocent".

 

[Malifice]

I thought this was interesting;

"i) considers the publication to be in the public interest; or"

Surely it would be within the realms of possibility that ASADA could argue that making the information publicly available, or at least available to the AFL, was in the public interest? Any thoughts on that from our legal eagles?

Touch and go.

Its arguable at the very least.

 

[invinciBlues]

My gut says its very probable.

The Court will weigh up the disadvantage to both parties if the injunction is (or is not granted), and the relative strength of the EFC case (amongst other things). ASADA dont really lose much if the injunction is granted, EFC stand to lose millions (and other non financial losses - this is important for the purpose of granting the injunction) if it is not granted.

Delaying ASADA by a few months as against the losses faced by the EFC should get it over the line.

On the balance of probabilities I would lean towards an injunction being granted. Will be happy to be wrong on this one though.

So I guess thats two (you and Laphroaig) who feel it will proceed ahead. Seems to becoming ever unlikely that this will be resolved this year. **** a duck.

Thanks for your insight, was interesting to hear that not just the strength of the claimants case is taken into account but also other factors like financial imposition and their public branding (I guess thats the main sticking point that the EFC are running at the moment).

 

[Malifice]

The only thing you will miss,is the new thread starting that will say "federal court agrees bombers are innocent".

Yeah. Im assuming that the injunction will be granted, and this will be seen as some form of vindication by bombers fans.

Which of course it isnt. If granted, it'll be more about the Court delaying the SC process so they can hear the legal arguments in full.

 

[Malifice]

So I guess thats two (you and Laphroaig) who feel it will proceed ahead. Seems to becoming ever unlikely that this will be resolved this year. **** a duck.

I maintain that the players will accept voluntary sanctions as soon as the H&A season finishes.

There will be pressure from the AFL on the EFC to wrap this up before 2015. The AFL will dangle draft concessions and money in front of EFC (to mitigate the fallout). If this legal challenge by the EFC fails, the Bombers will have nowhere else to turn if they want to survive other than the AFL. Without AFL assistance, the EFC will cease to exist.

They'll have to deal with the AFL.

Its as near as a win for the players too; they will have an AFL guarantee for financial losses from the voluntary suspension, and it backdates those suspensions. Most likely they'll only serve 12 months due to 'no significant fault' reductions, miss 2015 and be back for 2016.

If the legal challenge fails over the off season, the EFC and players are looked after by the AFL. If the legal challenge wins, well the players resume training immediately.

Not a betting man, but I'd be shocked if this isnt how this winds up.