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Coverage of the Federal Court directions hearing, in which ASADA wants a ruling on whether Essendon players can also be called to give evidence in the James Hird and Bombers' case.
If you are feeling confused by what today's court action means, you are not alone:
Gillon McLachlan: "I don't know what happens if Essendon win [the court case]. It will meant a lot of the evidence is inadmissible." — 3AW Football (@3AWisfootball) June 26, 2014
Lawyers for Essendon, James Hird and the Australian Sports Anti-Doping Authority (ASADA) are convening at the Federal Court. Essendon is aiming to have the ASADA investigation into its 2011-2012 supplement regime ruled unlawful. Today's legal action may only set a date for that decision to be made. SEN radio is reporting that a key element of today's submission from Essendon will centre around a conversation it had with an AFL investigator.
Essendon coach Mark Thompson is insisting that his players will not be distracted by today's Federal Court proceedings, saying they have to be "bigger and better than that", with a game against Geelong at Etihad Stadium tonight.
Lawyers are gathered in the dark wood pannelled courtroom, awaiting the start of proceedings. Justice John Eric Middleton will be presiding, a veteran of the Federal Court since 2006.
Justice Middleton opens with a joke about how dark the courtroom is. The lawyers are introducing themselves to the courtroom.
Parties are in "heated agreement" that the trial will be conducted from August 11 for three days, and there will be a prompt exchange of pleadings.
Lawyers are discussing with Justice Middleton the technicalities of exchanging documents between the contending parties, known as "discovery"
The parties are discussing the fact that ASADA show cause notices to Essendon payers are effectively "rolling" on 14 days' notice from Tuesday.
Justice Middleton says it doesn't seem ASADA is about to "press any button" to trigger action before the August 11 trial.
Counsel for Essendon argues against this. If notices are triggered in July, he says, they would be "founded upon what we say are illegally given notices".
Counsel for Essendon says if the ASADA show cause notices are not cast aside, "the players and the club are placed in a position of uncertainty... on tenterhooks..."
Justice Middleton is asking counsel for ASADA why it cannot set aside the possibility of show cause notices being triggered before the August 11 trial date. "Your client has taken time... Isn't it right that the court has some time?" he asks.
Counsel for ASADA says "The fact is... the players themselves are content with the accommodation extended by the CEO (of ASADA). He is arguing that there is a public interest in the ASADA act being operated without judicial interference.
He says the act decrees that only 10 days, not 14, are required for a show cause notice to be triggered, and the ASADA CEO has been "generous... fair and reasonable" in offering 14 days notice.
He says the CEO would only do so if absolutely necessary.
Justice Middleton says there is no urgency for the court to intervene at this time. He needs to be convinced by Essendon's counsel that any action should be taken against ASADA ahead of the trial on August 11.
Counsel for ASADA said ASADA's CEO would not act in a maverick or cavalier fashion to trigger show cause notices unnecessarily before the August trial date.
Justice Middleton does not see why the court should intervene now. He says this is a "hurdle to overcome" for Essendon's counsel.
Lawyers for Essendon are attempting to change his mind by referring to specific sections of the ASADA Act
Oh boy, it is getting technical now. Down to the paragraph references, subsections... Discussion of incidental powers...
Essendon's counsel has got to the nub of their argument with ASADA, saying that it transgressed its confidentiality clauses by disclosing information to third parties during its investigation of the Bombers.
He says ASADA cannot make any disclosures about its investigations, even to the AFL.
He says "confidentiality obligations were transgressed" by ASADA's joint investigation with the AFL.
"In their very conception ... they involved breaches by ASADA of the act..."
The argument is that the only disclosures that can be made must pertain to ASADA's own investigation.
Counsel for Essendon says there would be no interference with the CEO of ASADA if the show cause notice period was extended to the trial date, August 11, and he has already extended the show cause notice period twice.
"We say there is very real prejudice that would be inflicted in the club and players..." if the response period to the show cause notices is not extended.
Counsel for Essendon says players would suffer "oppressive uncertainty" and "the risk of real damage" would hang over the club unnecessarily if an interim order is not granted against show cause notices.
Justice Middleton says he is not persuaded that an interim order against ASADA's show cause notices is necessary. He says that there is always uncertainty involved in litigation, but the court has sought to expedite proceedings as quickly as possible.
He says that the 14 day's notice for the responding a to show cause notice will stand. Players will be able to seek relief before the trial date if they see fit, but he hopes that is not necessary.
Currently there is discussion of whether the players should join the action of the club and James Hird.
Justice Middleton is concerned that Essendon's players are not saying anything to the court in this matter.
He says he is concerned to achieve natural justice for everybody involved in the case and to deal with all parties "at one time, if we can", as close to the trial date of August 11 as possible.
Most of the discussion at the moment is procedural, relating to how the case will be heard and whether the players join with other parties in the hearing.
Essendon's counsel says the club's players are fully aware of the details of the case and do not wish to join other parties in the case. The club does not want players named as respondents. If the case proceeds, an agreed statement of facts will be issued, and the players will be apprised of all issues contained in that statement. Essendon would not oppose representatives of players intervening before the trial if they wish to do so.
Justice Middleton is concerned that players could intervene in the case, and affect its smooth operation.
He is leaving the issue open for a few days to ensure that players will have the opportunity to address the court if they wish to do so.
The court is being told that Essendon players see no need to be joined to the case, wish to avoid the stress of appearing, and would only appear in court before August 11 if the ASADA show cause notices were triggered before the trial.
It is told that success for Essendon in the case will flow through to the players.
The court is going to take a few days to consider whether the players are joined with the other parties in the case. Justice Middleton says all parties involved are keen for a quick outcome in the matter.
The next point of discussion is discovery, which usually involves the exchange of documents relevant to the case between the parties contesting the case. Basically, this will decide what ASADA and Essendon have to reveal to each other before the trial on August 11.
ASADA is opposing the release of some documents via the discovery process, saying it is discretionary, not a right, and supplying some of its documents could contravene the ASADA act.
Counsel for ASADA says discovery is premature, "as of today", partly because there is not yet a statement of claim from James Hird.
Justice Middleton says this is a matter where parties must get together and confer, rather than exchange letters. The need to meet in conference and then come back to argue what is revealed in discovery. The parties must determine what documents are required.
"The parties need to pull together to make sure that (the trial) happens without any hiccups..."
Details of the process will be discussed with Justice Middleton next Wednesday.
"Sit down, work out for a day or two what the problem is and what documents you really need," he says.
He anticipates some factual disputation during the case and hopes that documents will determine judgement on such issues.
"The players have no desire to be joined, they seek to avoid the expense and the stress," Mr Grace, acting for the players said.
"They are very sensitive to the issue of anonymity."
Justice Middleton encouraged the parties to find a resolution but said he believed the players should remain close to the case.
"I believe the players should have a close involvement in this case so they have the full opportunity to address this court," he said.
"Individually or as a group."
- Nino Bucci
Counsel for Essendon says the relationship between the AFL and ASADA is central to the case, hence documents pertaining to this will need to be examined.
Justice Middleton says he "would expect you would get your hands on such documents" via the discovery procedure.
Essendon chairman Paul Little and chief operating officer Xavier Campbell are seated in a packed public gallery. James Hird and ASADA chief executive Ben McDevitt are not. One can be assured that any AFL scribes in attendance are hearing arguments somewhat more involved than a Monday or Tuesday night AFL Tribunal hearing.
The court is thrashing out the details of timing in the case. ASADA sought and was granted two extra days to prepare for pleadings. This will occur July 9.
Justice Middleton says the court is "ready and willing to hear the matter on the 11th of August". In the meantime, he will see the lawyers next Wednesday morning to discuss whether the players are joined to the case of the club and James Hird, and what documents each party will have to supply to each other.
James Hird's statement of claim is not being received until next Monday.
Essendon has failed to have an injunction upheld against ASADA's show cause notices against its players.
Court has been adjourned.
