The Federal Court is the most business-like of courts, and the lawyers who practise there are apt to take good and bad results with the same deceptive equanimity. On judgment days it can sometimes be difficult to tell the victor from the vanquished. But not this time.

Justice John Middleton’s comprehensive rejection of Essendon’s challenge to the legality of the investigation into its 2012 supplements program left the club and its reinstated coach as shaken as any elimination final thumping.

Essendon chairman Paul Little has an ashen pallor at the best of times, and it was as gun-metal grey as the circling storm clouds by the time Middleton was done reading his judgment.

To recap: Essendon’s case was that the Australian Sports Anti-Doping Authority had no statutory power to conduct a joint investigation with a “sporting administration body” such as the AFL. ASADA’s use of the AFL’s compulsive powers for its own interrogative purposes was as improper as the AFL’s use of ASADA’s interim report for its disciplinary purposes, according to Essendon’s QC, Neil Young. The ASADA Act only permitted information sharing for purposes related to the investigation of suspected anti-doping rule violations. The AFL’s use of the interim report to punish Essendon for its alleged failures of governance was not such a purpose, he said. The two things had nothing to do with each other.

“Nonsense on stilts,” replied Tom Howe QC for ASADA. Howe has an entertaining turn of phrase and is not averse to climbing onto the cracker barrel when the right moment presents itself. He was pretty sure that Essendon’s disgraceful and toxic management culture in 2012 had everything to do with the rampant experiment in pharmacology that occurred in the same year. And that was all ASADA needed to make the investigation lawful.

Middleton agreed, finding that ASADA had every lawful right to conduct a joint investigation.  The statute was designed to encourage partnerships between ASADA and sporting administration bodies for the purpose of investigating violations of anti-doping rules. It required such bodies to cooperate with the anti-doping authority and to establish sufficiently robust contractual arrangements with clubs and players to make that cooperation count. With a victory under its belt, ASADA can proceed with the evidence it has gathered to prosecute Essendon players for doping.

It’s still difficult to grasp how Essendon, coach James Hird and their band of cocksure attorneys could get it so totally and culpably wrong. That a rookie coach would embark on such an ill-advised program and persist in defending it suggests he’s not accustomed to receiving advice he doesn’t care for. Or perhaps it’s that any would-be advisers knew better than to offer it.

That a combined legal team — so handsomely remunerated it would struggle to stay within an AFL salary cap — could stake its fortunes on a ground that was knocked out in the first paragraph of a judgment that ran to an even 500 paragraphs is probably as telling as it sounds, and as damning. Middleton had been dropping hints as far back as the first directions hearing in June that this was a confined dispute, a clear-cut matter of statutory interpretation.

“Either the investigation is legal or it’s not,” he’d said.

Clues to Essendon’s misplaced confidence were evident in the club’s exceedingly high spirits in the minutes before Middleton began his brisk repudiation of practically every proposition the club had put to him. On one side of the bar table, Young had turned around in his chair to greet various of his clients as they took their seats in the front row, beaming in that goggle-eyed, slightly comic book way he has. On the other side, Steven Amendola and Josh Bornstein, strategic masterminds of the legal campaign, engaged in the sort of ostentatious, gum-chewing badinage that seems to be the prerogative of corporate legal types these days. Amendola did at least pay the court the respect of removing his Mad Men-issue hat before sitting down this time, which is something. Then again, you don’t get a lot of precipitation in these modern court buildings. Further down sat Hird’s barrister, Nick Harrington, whose confidence precedes him by quite a distance. Harrington was junior counsel to the excessively ingratiating Peter Hanks QC. Hanks was absent from judgment day as he’d been absent from every day of hearing outside of the trial, where he’d offered little more than exquisitely subtle embellishments to Young’s submission, many of them in Latin.

Harrington’s performance in the preliminary hearings suggested he might struggle to suppress his theatrical tendencies for an entire trial. And so it proved. His cameo of cross-examination on the last day was the point at which the repetition of meaningless nomenclature produced a belated epiphany. It was also the point at which the judge’s normally unfailing affability finally failed him.

“You can keep calling it a ‘joint investigation’ until we’re all red in the face”, Middleton barked. “But I’m the one who has to work out what that means!”

Only barrister Catherine Button, convincing throughout, seemed to exhibit the proper reserve the occasion warranted. Her colleagues remained as unabashed and absent-of-doubt as ever, whistling aloud as they walked into a lamppost.

Monday’s papers are reporting the fall of the empire — Hird losing support, Little’s power base crumbling, directors leaving, players deserting, more legal manoeuvres pending. Whether you’d take that on faith is another question. If this case demonstrated anything, it’s that the average educated layperson has a better understanding of the legal process than the football commentariat, the most prominent of whom rarely (Robbo) or never (Caro) went anywhere near the court.

Still, the estimated legal bill of $2 million and change sounds plausible enough, and it’s not just the football club counting its losses.

Money well spent, if it cures them of their hubris.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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