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ASADA claims Hird alleges 'conspiracy'

The Federal Court case against the Australian Sports Anti-Doping Body has taken a stunning turn, with lawyers for the anti-doping body contending suspended Essendon coach James Hird had claimed there was a "conspiracy" against him.

In the second directions hearing in front of Justice John Middleton on Wednesday morning, lawyer Dan Starr, acting for ASADA, took aim at the amendments made by Hird in his statement of claim, released on Tuesday.

Starr had particular concern with section eight of the claim, where it was stated that "it was a purpose of the joint investigation that the respondent and/or ASADA obtain a benefit it did not otherwise have under the ASADA legislative regime when conducting an investigation".

Starr said ASADA was "very concerned" by suggestions the anti-doping body had "got around the Act".

"We read an alleged conspiracy," Starr said.

This was denied by Hird's lawyer Nick Harrington in strong terms.

"We are not alleging conspiracy, your honour," Harrington said.

Justice Middleton also did not interpret section eight of the statement of claim as a conspiracy. 

"No one is alleging conspiracy," Justice Middleton said.

Hird and Essendon claim the joint investigation between the AFL and ASADA was unlawful.

Justice Middleton has set down a third directions hearing on Friday to determine whether the 34 players issued with infraction notices will join the case and have to give evidence.

David Grace, QC, said the players "are, at present time, not at a point to advise the court whether the players will be joined until the issue of anonymity is resolved".

“The reluctance of players to be involved is solely related to this question of anonymity," he said.

Grace said should players give evidence and their names were publicly released it could cause "irreparable reputational harm". He also said the players had not determined whether they would be a respondent or applicant in the case.

AFL Players Association chief Ian Prendergast told Fairfax Media on Tuesday night the players had begun to work towards a "process" of whether they were willing to join proceedings.

Lawyer Catherine Button called for key documents relating to why ASADA chief Ben McDevitt had issued show-cause notices to be handed over. She said this was important to pressing the case by Hird and the Bombers that the investigation was what she called a "tainted process" and "tainted notices".

Justice Middleton told the Hird camp that he was "content" to allow a subpoena against AFL investigator Brett Clothier, who played a major role in the investigation last year. It's understood the subpoena, at this stage, will only be for documents and not to give evidence in person.

Justice Middleton also ruled ASADA had to hand over copies of its interim report, released in August to the AFL Commission, to the legal teams of Hird and the Bombers. However, the names of players will be redacted.

Justice Middleton wants several issues relating to documents and legal process resolved by July 24.

Outside of the court, Bombers chairman Paul Little said the club was happy with the unfolding events.

"At this point in time, I can't talk about anything that is before the court," he said.

"The issue about whether or not the players are joined is before the court. That will be determined by Friday."

The case will go to trial on August 11.

Hird remains in France on a study tour and is not due back in Melbourne until July 28.

18 comments so far

  • So Mr Star is very concerned that there is a suggestion the anti-doping body had "got around the Act" is he? Perhaps he could explain to us how the investigation, described by both the AFL and ASADA CEO's as a "joint investigation" was in fact, not joint?

    Commenter
    Chaching
    Location
    lawyers heaven
    Date and time
    July 02, 2014, 2:05PM
    • It is time to pay the piper.

      If you have taken performance enhancing drugs then the rules are clear. To attempt to hide behind legal technicalities is dishonourable.These guys are not special - they need to follow the laws and the rules that they signed up to.

      Is there already a civil case commenced against Essendon as has been commenced against Cronulla?

      Commenter
      This stinks
      Date and time
      July 02, 2014, 2:49PM
      • An alien conspiracy perhaps? This guy is dragging the club through the mud for another season. He represents the height of narcissistic selfishness. He's fallen from his pedestal. Had he taken his slap on the wrist with a grain of salt initially, this saga would likely be over and the club would be focusing on winning a premiership. No chance of that now.

        Commenter
        BJ
        Date and time
        July 02, 2014, 2:59PM
        • Here's an observation...for all the mistakes made by the AFL/ASADA, for all the arguments about whether or not the joint investigation was legal.....it seems that this matter could now be resolved by answering one question - Were the players given TB4 or not?
          I can sort of understand the EFC and Hird's grievances about the process, but it seems to me the easiest , fastest and best way for them to end this matter completely is to address the evidence found by ASADA and prove them wrong.
          The EFC and Hird have repeatedly stated that they are certain no illegal substances were administered. So I would have thought the best way to clear this up and save their reputations (and careers) is to show ASADA and the rest of the world, the evidence that will validate what they have claimed all along.
          Instead they prefer this very expensive legal action to have the whole investigation declared illegal and the ASADA "evidence" permanently suppressed. If they win that means that question will never be answered and the "did they or didn't they cheat?" question will linger forever.
          I can't see how that is a good result for anyone...but maybe I am missing something here?

          Commenter
          Mikey
          Location
          Perth
          Date and time
          July 02, 2014, 3:15PM
          • I suspect Hird thinks everyone has a "conspiracy" against him. Didn't he initially say he would take full responsibility for everything? All he seems to be doing is blaming everyone else. So much for taking responsibility.

            Commenter
            Catherine
            Date and time
            July 02, 2014, 3:23PM
            • I used to try and post thoughtful comments on the Canberra Times website but almost all of these were rejected without feedback.
              Seems a waste

              Commenter
              Parsimony
              Date and time
              July 02, 2014, 3:28PM
              • Hi Parsimony, believe me, it gives us no joy to reject comments. The rate of comment rejections for ASADA and Essendon stories (due to the legal sensitivities) may be higher than for many other articles. Rob Ashton.

                Commenter
                Mod
                Date and time
                July 03, 2014, 11:13AM
            • I won't be following AFL any more, and I'll be encouraging my children to pursue anything other than that sport on the grounds, as I will explain to them, that I believe its culture is a refuge for sexism, bullying, racism and the good old paternalistic establishment of big men who tell us what's true and what's not.

              Commenter
              JWah
              Location
              Melbourne
              Date and time
              July 02, 2014, 3:34PM
              • The headline of the article picks up on an allegation from ASADA that was immediately slapped down by Hird's counsel and the judge. As the judge said, nobody is talking about conspiracy (except ASADA).

                But let's look at the process. ASADA must conduct its investigations independently, and cannot force people to speak. Yet they join with the AFL which - conveniently enough - can compel people to speak. The AFL and ASADA conspired to give ASADA teeth which were denied it by legislation. Could that be called a conspiracy? Well, what else could it be called. ASADA doth protest too much, methinks.

                Commenter
                Laki
                Location
                Windy Hill
                Date and time
                July 02, 2014, 3:36PM
                • I bet the few players on Essendon's list during the period that players were injected that haven't been issued with show cause notices can't wait for the names of those that were to be released. We are hardly talking about a large section of the population under suspicion here and yet they are prepared to use their uninvolved team-"mates" as shields. That can't be good for morale.

                  Commenter
                  Stuart
                  Date and time
                  July 02, 2014, 3:44PM

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