OUTLINE OF WRITTEN SUBMISSIONS FOR INTERLOCUTORY HEARING FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY: VICTORIA No VID 569 of 2014 Division: General On appeal from a single Judge of the Federal Court of Australia JAMES ALBERT HIRD Appellant CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY Respondent OVERVIEW 1. The following matters arise for consideration at the hearing of the interlocutory application on 10 October 2014. 1.1. Whether the appeal should be heard on an expedited basis, and if so, what is the appropriate timetable? 1.2. What procedural steps should be taken by the parties in preparing for the appeal? 1.3. What role, if any, will be played by any third parties in the appeal (for example, the 34 players)? EXPEDITION OF THE APPEAL 2. Practice Note APP-1 provides that a hearing before a Full Court outside of the published Full Court sitting dates may be expedited where a party seeks such an order and this is supported by evidence of urgency, and the circumstances so require (at [2. 7]). The remaining published sittings for 2014 for the Full Court are between 3 and 28 November 2014 (the November sittings). The first published sittings for the Full Court in 2015 are between 10 February and 7 March 2015. 3. The Respondent contends that the circumstances outlined in the Affidavit of Mr Steven Amendola do not demonstrate the requisite urgency to have the matter listed on an expedited basis before the November sittings. This is for the following reasons. Filed on behalf of the Respondent File ref: 14172738 Prepared by: Cherie Canning I Christopher McDermott Australian Government Solicitor. Address for Service: Australian Government Solicitor, Level 21, 200 Queen St, Melbourne, VIC 3000 [email protected] Telephone: 03 9242 1382 I 03 9242 1220 Lawyer's Email: [email protected] I [email protected] Facsimile: 03 9242 1333 DX 50 Melbourne 4. As noted by Mr Amendola at paragraphs 3 and 4 of his affidavit, the trial before Justice Middleton proceeded on an expedited basis. However, that expedition occurred in a context where (i) the applicants, without opposition by, the 34 players, sought an interlocutory stay of the 'show cause' process instituted against the players; and (ii) the Respondent agreed, in effect, not to require the players to respond to the show cause notices unless and until 14 days notice was given to them of the need to do so. Neither of those factors is at play in the context of this appeal. 5. The Appellant seeks expedition on the basis that he joined issue with the lawfulness of the investigation conducted by the Respondent and the Australian Football League (AFL) since at least April 2013. 1 This contention is contrary to the primary Judge's findings of the Appellant's considerable acquiescence and co-operation with the joint investigation (for example, see Reasons for Judgment at [96], [141 ], [233] to [234], [256(i)] and [483]). In any event, even taking the Appellant's contention at face value, it is clear that he took no active steps, by way of institution of proceedings, for a period of 15 months thereafter. 6. The Appellant contends that the Respondent will now continue with the statutory processes of issuing further 'show cause' notices pursuant to cl 4.07A of Sch 1 to the Australian Sports Anti-Doping Authority Regulations 2006 (the Regulations). 2 This is no basis for expedition in circumstances where the individuals directly affected by those processes have expressly welcomed the continuation and ultimate conclusion of those processes. 3 So far as the possibility of any 'show cause' notice against the Appellant himself is concerned (see paragraph 9 of Mr Amendola's affidavit), there is simply no evidence before the Court of any imminent exposure of the Appellant to such action; and if any such action were to be taken against the Appellant whilst these proceedings are on foot, the Appellant would have options open to him such as (i) inviting the CEO to consider a similar accommodation to that described at 4(ii) above; and/or (ii) seeking interlocutory relief from this Court. 7. The Appellant seeks expedition on the basis that he does not seek an undertaking from the Respondent or an injunction to stop the investigation conducted by the Australian Sports Anti-Doping Authority and the issuing of amended 'show cause' notices. 4 This factor does not demonstrate any urgency in expedition of the hearing before a Full Court. 8. The Appellant contends that there will be no prejudice to the Respondent in an expedited hearing of the appeal. 5 The Respondent agrees that this factor is a relevant consideration if the Appellant could demonstrate a basis for expedition of the appeal. It is not a relevant consideration where expedition is not otherwise supported by relevant evidence and considerations. Affidavit of Steven Amendola, 2 October 2014, at [8]. 2 Affidavit of Steven Amendola, 2 October 2014, at [9]. 3 Insert reference to Affidavit of Craig Rawson, 7 October 2014, Annexure 'CR-1 '. 4 Affidavit of Steven Amendola, 2 October 2014, at [11]. 5 Affidavit of Steven Amendola, 2 October 2014, at [12]. A4133422 Page 2 9. In any event, as set out in the affidavit of Mr Rawson, the Respondent's preparation, in defending the appeal, is likely to be seriously compromised if the timetabling orders sought by the Appellant are made. 10. The public interest in the efficient use of court resources, including the effect of listing the matter ahead of the interests of other litigants in this Court, is a relevant consideration in the exercise of the discretion to list the appeal for hearing on an expedited basis. 6 The efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court's overall caseload, and the disposal of all proceedings in a timely manner are all objectives 7 underpinning the 'overarching purpose' of the civil practice and procedure provisions in the Federal Court of Australia Act 1976 -that is, the facilitation of the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. 8 The Court is obliged to exercise any case management power in a way that best promotes the overarching purpose. 9 11. The Respondent contends that, in the event the Court considers it appropriate to list the appeal to be heard in the November sitting period, the appropriate listing is in the week commencing 24 November 2014. Timetable for the appeal 12. Assuming that the matter may be heard by a Full Court in the week commencing 24 November 2014, the Respondent contends that appropriate procedural orders are those contained in the Respondent's minute of orders sought. 10 The Respondent agrees with the Appellant that the hearing of the appeal will likely take up to 1 day. Position of third parties 13. The Court has been advised by the Appellant that the players represented by Mr Tony Hargreaves do not seek to be made parties to the appeal, or heard on the issues arising. 11 The Respondent has also been advised that the players represented by Robert Stary Lawyers do not seek to be made parties to the appeal. 12 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, at 191 (per French CJ), and 211 to 212 and 217 (per Gum mow, Hayne, Grennan, Kiefel & Bell JJ). 7 Federal Court of Australia Act 1976 s 37M(2)(b) to (d) refers. Federal Court of Australia Act 1976 s 37M( 1) refers. Federal Court of Australia Act 1976 s 37M(4) refers. 10 Affidavit of Craig Leslie Rawson affirmed 7 October 2014 at CR-1. 11 Email from Mr Dominic Fleeton to Mr David Pringle, Federal Court of Australia, of 2 October 2014. 12 Affidavit of Craig Leslie Rawson affirmed 7 October 2014 at [8.3]. A4133422 Page 3 14. The Essendon Football Club has publicly indicated it will not be seeking to appeal the judgment13 TOM HOWE QC DR SUE McNICOL QC Counsel for the Respondent Date: 7 October 2014 (il!J ................ !. ........................................... . Craig Ravlson A lawyer employed by Australian Government Solicitor Lawyer for the Respondent 13 Affidavit of Craig Leslie Rawson affirmed 7 October 2014 at CR-1. A4133422 Page 4