James Hird faces an uphill battle to win his case on appeal against the Australian Sports Anti-Doping Authority, a leading employment lawyer claims.
The one-day appeal brought by Hird and his lawyers, arguing that Justice John Middleton had erred in declaring the 2013 investigation by the anti-doping body and the AFL into the Bombers’ supplements program was lawful, will be held before a full bench of the Federal Court on Monday.
Hird also hopes to have the show-cause notices against the 34 current and former Essendon players quashed, and investigators forced to restart the probe without the information gleaned from the 2013 case.
However, to have justices Susan Kenny, Anthony Besanko and Richard White overturn Justice Middleton’s decision looms as a major challenge, according to Graham Smith, a partner with Clayton Utz and an industrial relations and employment law specialist.”The Hird legal team face significant challenges,” Mr Smith said. “It’s a bit like needing to kick an 80-metre torpedo punt for goal after the siren is gone. It’s not impossible but it helps with a strong tail wind behind you.
“Hird will need to persuade the appeal court that the judge [Middleton] was wrong in finding that the joint investigation by the AFL and ASADA was allowed under the ASADA Act.
“Hird argues that the judge did not identify any specific power in the ASADA Act to allow an investigation of the kind that happened.
“He argues that the general statutory powers that Middleton relied on to say the investigation was legal and the information gathered was legally obtained and used, did not allow use of the AFL contractual arrangements with players to be used in an ASADA investigation or allow ASADA to use the unlawfully obtained information through the interviews to support the show-cause notices.
“The appeal court will then need to decide that it should quash the show-cause notices because of the illegalities in the joint investigation – if they find there were illegalities.
“The judge had said he would not quash the show-cause notices even if the joint investigation had not been valid.”
Having assessed the pre-hearing documents from both parties released publicly on Friday, lawyer and blogger Natalie Hickey, a former partner at King & Wood Mallesons, wrote on sociallitigator.com that the “principal complaint in the appellant’s [Hird’s] submissions is that the judge examined the issues through a ‘contractual lens’ rather than pointing his gaze sufficiently at the statute”.
“Specifically, it is argued that the judge did not determine the nature and conduct of the investigation and why it was lawful under the ASADA Act,” Ms Hickey said.
“True it is, the appellant argues, the AFL might have broad contractual powers to investigate potential anti-doping rule violations (ADRVs). However, as the argument is put, the contractual arrangements between James Hird and the players, on the one hand, and the AFL on the other, have little to do with the source of legislative power for a joint investigation.
“It was all very well for ASADA to recognise it could obtain a benefit it did not already have (stronger investigatory powers) by relying on the AFL’s contractual powers courtesy of its arrangements with players and club support personnel.
“However, the appellant argues that the judge wrongly found this approach to be valid.”
ASADA’s lawyers Tom Howe, QC, Sue McNicol, QC, and Dan Star are expected to again reinforce one of their key planks – that Hird agreed to the investigation. Hird did so publicly when the Bombers self-reported in February last year but, during the three-day trial, he made it clear that he had privately expressed to club officials at the time he did not agree there was good enough reason for a probe.
“The thrust of the submissions in support (of ASADA) is that if the judgment is set aside and ASADA’s evidence is found to have been unlawfully obtained, there are reasons in addition to those found by the trial judge as to why relief should not be granted. In essence, ASADA contends that the judge did not go hard enough on the question of discretionary considerations,” Ms Hickey said.
“For example, ASADA continues to argue that the appellant should be found to have acquiesced in the joint investigation. ASADA refers, amongst other things, to James Hird’s public invitation that a joint investigation take place – even if he later testified to private reservations about this – to his failure to act when the interim report was handed down, and to his agreement to a settlement and sanctions as a result of that report.”
The hearing begins at 10.15am. The deliberation is expected to take several weeks.
