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

[Malifice]

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).

From Wiki:

In Australia, the High Court in ABC v Lenah Game Meats (2001) 208 CLR 199 at [91] stated that the purpose of the interlocutory injunction is to preserve identifiable legal or equitable rights. The basic proposition remains that where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature. In another Australian High Court decision, Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, Mason CJ outlined another requirement for establishing an interlocutory injunction. He suggested that the plaintiff had to show that 'irreparable injury' would be suffered, for which common law damages would not be adequate compensation, unless an injunction was granted. The main difficulty associated with granting an interlocutory injunction is that the court must consider whether the likelihood of a legal action being established is sufficiently strong for the injunction to be granted.

http://en.wikipedia.org/wiki/Interlocutory_injunction

Strength of the case is a factor (as much as this can be discerned at the directions stage). As is the damage that would be cause if an injunction is not granted. A strong case doesnt need big damages to get up; a case with huge damages needs only really an arguable case to get up.

The potential damage incurred if an injunction is not granted is the selling point in this case.

In fact, considering the damages at stake, if the Court doesnt grant an injunction Friday, I would be very nervous if I was a player (or the EFC). It's (at the very least) an indication that the judge sees the case as tenuous at best.

 

[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?

Hey Malifice - any knowledge in this particular area? Its probably the biggest question I have for this whole saga - surprised others don't seem to understand the magnitude of it's implications.

 

[Malifice]

Hey Malifice - any knowledge in this particular area? Its probably the biggest question I have for this whole saga - surprised others don't seem to understand the magnitude of it's implications.

ASADA could start again (although it would be difficult). I feel that the reason for the delay in issuing the SC's was because they were shoring up evidence in the event this occurred (i.e. getting a plan B together).

Under the AFL anti doping scheme and the NAD scheme, the AFL is reuired to provide all relevant information and evidence to ASADA, and the EFC is required to provide all relevant information and evidence to the AFL as and when required.

Intentionally destroying evidence (particularly evidence that the AFL and ASADA are already aware exists) wouldnt be a good idea.

 

[invinciBlues]

In fact, considering the damages at stake, if the Court doesnt grant an injunction Friday, I would be very nervous if I was a player (or the EFC). It's (at the very least) an indication that the judge sees the case as tenuous at best.

That's been my layman interpretation of this. If it doesnt carry enough weight for the judge I'd expect all but the most ironed on Essendon players would be on the phone immediately to ASADA trying to salvage whatever deal they can.

But if the judge thinks it has legs then it just gets more drawn out. Its a turning point in this whole affair.

 

[slashin_velvet]

Thanks Malifice

Just another one (if you can spare the time). The legal documentation gave reference to the joint investigation occuring up until 31 July 2013. Is there a likelyhood that if this gets up, then the evidence admitted before this date is inadmissable, but evidence after the fact is fine? Or is the whole investigation from start to finish prejudiced by its initial setup?

 

[Boxhead_31]

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.

Thanks for that Malifice, I understand that there is grounds that possibly ASADA overstepped by giving the interim report to non approved parties in EFC and Hird, but Hardie is claiming that sections 4.21 and 4.22 are the part of the act that prevent ASADA from running joint investigations.

That is the part of his thinking that I don't understand for I can't see anything in those two sections that would prevent a joint investigation unless I'm missing something?

 

[Malifice]

Thanks Malifice

Just another one (if you can spare the time). The legal documentation gave reference to the joint investigation occuring up until 31 July 2013. Is there a likelyhood that if this gets up, then the evidence admitted before this date is inadmissable, but evidence after the fact is fine? Or is the whole investigation from start to finish prejudiced by its initial setup?

My thinking is if it gets up (and I dont think it will) the best outcome for the EFC will be that the evidence relied on for (and released in) the interim report gets chucked out.

I doubt this will happen though. My feeling is that even if this argument holds, the court wont quash the investigation or the evidence.

The players should really be the ones bringing the claim. They appear to have a stronger argument that they were the ones denied natural justice by having the interum report handed to their employers (arguably) before such disclosure was authorised under the ASADA Act.

That argument would probably hold more weight.

 

[Cronos]

Even if on the off chance, the EFC are successful, and any evidence from the joint investigation is deemed unusable, imagine the display of strength it would be for ASADA to say "Fine. We can proceed with the other evidence gained from outside the joint investigation anyway."

I'm positive the delays have been covering for this exact possibility.

 

[van peebles]

My thinking is if it gets up (and I dont think it will) the best outcome for the EFC will be that the evidence relied on for (and released in) the interim report gets chucked out.

I doubt this will happen though. My feeling is that even if this argument holds, the court wont quash the investigation or the evidence.

The players should really be the ones bringing the claim. They appear to have a stronger argument that they were the ones denied natural justice by having the interum report handed to their employers (arguably) before such disclosure was authorised under the ASADA Act.

That argument would probably hold more weight.

The "players" seem to be acting on advice,let the club vs,hird vs play out and then mount a players vs case.

 

[LoungeLizard]

Even if on the off chance, the EFC are successful, and any evidence from the joint investigation is deemed unusable, imagine the display of strength it would be for ASADA to say "Fine. We can proceed with the other evidence gained from outside the joint investigation anyway."

I'm positive the delays have been covering for this exact possibility.

Do you know when the players were last interviewed, weren't they called back in?
And affidavits were later signed, i wonder who signed them?

 

[Malifice]

Thanks for that Malifice, I understand that there is grounds that possibly ASADA overstepped by giving the interim report to non approved parties in EFC and Hird, but Hardie is claiming that sections 4.21 and 4.22 are the part of the act that prevent ASADA from running joint investigations.

That is the part of his thinking that I don't understand for I can't see anything in those two sections that would prevent a joint investigation unless I'm missing something?

There is nothing in those sections that expressly preclude joint investigations; it just precludes release of information by ASADA unless that release is done in certain specified circumstances; and even then only in prescribed situations and to prescribed bodies. In fact, if you look closely, the NAD scheme expressly authorises information sharing between sporting bodies and ASADA for the purposes of furthering the ASADA Act.

It is my view that the NAD scheme (and the way it is set up) clearly sets up a process by which ASADA work with sporting bodies to monitor, invesitgate and (when required) sanction individual athletes. ASADA couldnt do their job if the NAD scheme and ASADA Act were read any other way. I firmly agree with McDevitt on this point.

The only sticking point I can see is that during such collaberation, ASADA are precluded from the release of certain personal information unless its done in the prescribed methods.

There is an argument that such a breach has occurred in this case.

Thats my understanding anyway.

 

[Malifice]

We need to remeber that the EFC are not an 'authorised sporting body' under the NAD scheme or the ASADA Act. Thats the role of the AFL. And its only the AFL that are bound to the NAD scheme; the EFC (and other clubs) agree to be bound to the AFL Anti doping code.

ASADA bind the AFL via the NAD scheme. The AFL then requires all clubs to sign up to their own Anti doping code (much of the contents of which are prescribed under the NAD scheme).

It looks to me to boil down to that interim report. Who released it to whom, when, and for what purpose.

Ill be intrested to read the final judgement on this once its all done and dusted.

 

[jenny61_99]

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

Also Agreed facts? Shouldn't be too many of those you'd think.

 

[jenny61_99]

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.

And if ASADA gave it to the AFL and the AFL then made it available to others? Whose fault is that?

 

[invinciBlues]

And if ASADA gave it to the AFL and the AFL then made it available to others? Whose fault is that?

I would have thought The AFL would have been required to give the interim report to Essendon so that they could prepare a defence against the BTGID charges?

 

[Malifice]

And if ASADA gave it to the AFL and the AFL then made it available to others? Whose fault is that?

The AFL's. Under the ASADA Acts provisions for non disclosure, the AFL would recieve the information as a matter of privelege and (assuming they then publicly released it) would be in breach of the Act.

Could be why ASADA immediately stopped dealing with or talking to the AFL after it was released by the AFL to the media and public at large (redacted or not).

 

[slashin_velvet]

And if ASADA gave it to the AFL and the AFL then made it available to others? Whose fault is that?

Quite clearly an AFL issue. If the documentation that formed the interim report didnt come with a full disclosure statements about its form, content and who can/can't be privy to the content (with/without permissions) then ASADA are big sillys, and all personnel involved in that report should lose their jobs.

 

[Malifice]

I would have thought The AFL would have been required to give the interim report to Essendon so that they could prepare a defence against the BTGID charges?

Theyre expressly precluded from showing it to Essendon under the non disclosure provisions if it contains any personal information (information likely to reasonably lead to the identification of athletes being investigated).

Arguably they could redact the personal information (which it seems that they did); however the next argument is whether the redaction was enough.

They had enough information in EFC's own report about allowing a 'pharmacologically experimental environment with no checks and balances' and Hirds refusal to avoid peptide use (he was previously warned remember) to make the charges stick.

Shit; the negative media coverage and its impact on the AFL alone over the scandal was enough to make BTGID charges stick even without either report.

Seriously; if the EFC have NOT brought the game into disrepute as a result of this scandal, I'm not sure what actions would. Might as well scrap the BTGID rule entirely.

 

[slashin_velvet]

I thought BTGID was for not tanking?

 

[hoianbulldog]

From Wiki:



http://en.wikipedia.org/wiki/Interlocutory_injunction

Strength of the case is a factor (as much as this can be discerned at the directions stage). As is the damage that would be cause if an injunction is not granted. A strong case doesnt need big damages to get up; a case with huge damages needs only really an arguable case to get up.

The potential damage incurred if an injunction is not granted is the selling point in this case.

In fact, considering the damages at stake, if the Court doesnt grant an injunction Friday, I would be very nervous if I was a player (or the EFC). It's (at the very least) an indication that the judge sees the case as tenuous at best.

Is this a possible scenario legally?

ASADA have probably been planning for EFC applying to have the joint investigation rules out.

EFC go for the interlocutory injunction on SC notices pending the outcome of the case against joint investigation. ASADA turn and say none of the evidence backing the SC notices is from the joint investigation and we would prefer to play on.

HC says, yep keep going with SC notices but make sure no evidence is from the joint investigation.

 

[The_Wookie]

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.

I update the video thread on Fridays. Limited net during the week.

 

[Malifice]

Is this a possible scenario legally?

ASADA have probably been planning for EFC applying to have the joint investigation rules out.

EFC go for the interlocutory injunction on SC notices pending the outcome of the case against joint investigation. ASADA turn and say none of the evidence backing the SC notices is from the joint investigation and we would prefer to play on.

HC says, yep keep going with SC notices but make sure no evidence is from the joint investigation.

Depends on the wording of the injunction (assuming its granted). It could preclude the use of certain evidence, or simply stop the whole thing dead till the matter is finally resolved.

And yes, what you suggest is certainly a possibility. A strong possibility.

ASADA have been aware for some time that EFC were going to pursue this route, and have known what the arguments would be if they did. Thats why they got a Federal Court Judge in Downes (an expert in this area of law) to review the whole thing before proceeding. You can bet your bottom dollar, that Downes report contained a series of recomendations to ASADA as to what to do to shore up the SC notices (which they did) and also contained a legal opinion on the strengths and weaknesses of EFC's core arguments.

The ASADA legal team are fully prepared for all of these shennanigans by the EFC. They wouldnt be surprised about the injunction application, already knew the grounds for it months ago, and would have prepared accordingly.

Its also relevant to note that Downes (himeself a retired Federal Court Judge, expert in administrative law and former QC) has given the green light to ASADA to issue SC notices, and has advised them that they are acting in accordance with the ASADA Act and not 'ultra vires.' In essence, this matter has already gone before a judge, and he saw nothing wrong with it.

This leads to me to strongly favor an ASADA victory in this matter.

 

[Malifice]

I'm positive the delays have been covering for this exact possibility.

This.

Its the very reason why they called in Downes (an expert in this very area of law, who used to sit and hear these exact same matters in the very court where this matter is headed).

His green light is good enough for me at this stage.

 

[Gavstar]

And if ASADA gave it to the AFL and the AFL then made it available to others? Whose fault is that?

It depends if the AFL shared it with EFC under a confidentiality agreement? Then the onus is on the club to keep contents confidential.

 

[carnthedons]

Even if on the off chance, the EFC are successful, and any evidence from the joint investigation is deemed unusable, imagine the display of strength it would be for ASADA to say "Fine. We can proceed with the other evidence gained from outside the joint investigation anyway."

I'm positive the delays have been covering for this exact possibility.

Seems quite likely and makes some sense. One has to wonder whether the gathering of evidence post JI would have been on the basis of information derived from the JI though. Maybe one of the more learned parties on here could advise as to whether this would be fruits of a poisoned tree, so to speak?