On the wall outside Federal Court 1 there’s a portrait of the court’s longest-serving chief justice, Michael Black AC. Black made his name as a silk in the appeal courts and went on to preside over a few himself. Whenever he’d address groups of graduating Bar Readers about to be admitted to practice, his advice was simple.
“There’s no point having a long list of grounds and earnestly trying to work your way through them all,” he’d say. “You’re much better off having two or three good ones, and putting them in the right order.”
Essendon Football Club coach James Hird found himself back at the Federal Court in Melbourne yesterday as he prepared to appeal the decision that found the Australian Sports Anti-Doping Authority’s investigation of the Essendon supplements program in 2012 was lawful. The football club and Hird were separate parties in the first action, but where the club itself chose not to appeal the ruling, Hird decided to go it alone in an attempt to prove the investigation wasn’t lawful and save his reputation and those of his players.
Hird’s appeal to the full bench was prepared by Steven Amendola of Ashurst International. Amendola made his name in the maritime disputes of the late 1990s, and there’s not much of the waterfront left uncovered by the grounds of appeal he filed on his client’s behalf last week. A first impression was that the appeal would be a virtual rehearing of the original case. A second was that such exhaustiveness probably wouldn’t help their chances of having the appeal hearing expedited.
It was the case for expedition that brought lawyers for Hird and the ASADA to court on Thursday. Hird wanted the appeal listed on October 27 or as soon as possible thereafter. His counsel, Nick Harrington, argued in written submissions that the issuing of amended show-cause notices to players — believed to be imminent — could expose Hird to sanctions based on evidence that might yet be ruled illegal. His reputation would therefore suffer immediate and ongoing damage unless the question of legality was decided as a matter of urgency. In short, there was “a cogent and compelling case for expedition”.
Tom Howe QC, for ASADA, didn’t oppose the logic of an expedited appeal but had no intention of compromising the preparation for it by agreeing to the abbreviated time frame on which Hird’s representatives were insisting. There was no evidence the provisional coach was about to suffer immediate prejudice, and he could always apply for an interim stay on the operation of the notices, if it came to that. It worked last time. Howe’s written conclusion was that counsel opposing had not demonstrated the “requisite urgency” to have the appeal heard any earlier than, say, November 24.
Justice Susan Kenny offered an accommodating smile and didn’t bother hearing oral argument from either of them. She ordered that the appeal be listed for a one-day hearing on November 10 — a numerically perfect compromise (according to my finger count). Kenny said a month was enough time for ASADA to prepare and noted that the “anxieties, uncertainties and pervasive concerns” to which Essendon personnel have been subject were now of some 20 months’ duration. The interests of many parties were affected by the investigation into the club’s contentious supplements program, and the legal challenge to it. There was also a public interest to take into account, she noted. In summary, the judge was satisfied the grounds for expedition were legitimate.
But just as persuasive, one suspects, were the amended grounds of appeal foreshadowed ahead of Thursday’s hearing, indicating that the excesses of the previous week had been scaled back to more manageable dimensions. The appeal will now focus squarely on whether the ASADA Act permitted the anti-doping authority to conduct its investigation “jointly, or in close co-operation with” the AFL.
There will be no challenge to any findings of fact made by Justice John Middleton in his bracing judgment of September 19. It also appears that Hird and his legal team now concede that the interim report provided to the AFL in August 2013 was for purposes not altogether extraneous to the activities under investigation by ASADA. That is to say they no longer deny the link between the derelictions of the club’s leadership in 2011 and 2012 and the experiment in pharmacology that ran wild in the corresponding period.
Whether this admission will have any currency beyond these legal proceedings is another question, of course.