Essendon, Hird and players tackle ASADA
All four parties have been heard on the opening morning of the Federal Court hearing into Essendon's supplements program and ASADA's subsequent investigation.PT0M0S 620 349
A solicitor for Essendon made a secret recording of an Australian Sports Anti-Doping Authority official addressing Bombers players after the football club had "begged" the anti-doping body to speak to the players, the Federal Court has heard.
The opening day of the trial in which Essendon and its suspended coach, James Hird, claim ASADA's investigation was unlawful, heard that the Bombers had asked an ASADA official to speak to players because the club had concerns for their health and wellbeing as a result of the supplements program adopted in 2011-12.
Daniel Star, representing ASADA, said Essendon solicitor Tony Hargreaves made a recording of that address and that Essendon now wanted to use the "covert secret transcript" as evidence in the case before Justice John Middleton.
James and Tania Hird arrive at court. Photo: Getty Images
Mr Star accused Essendon of running a "trial by ambush" by trying to have the transcript introduced as evidence after submissions were made. He said the evidence was kept by Essendon "in its back pocket until [last] Friday morning".
Mr Star said Essendon had begged the ASADA official to address the players after the club became concerned for the players' health and well being. He said the official had spoken under "Chatham House Rule" and that Mr Hargreaves was not entitled to record the address.
Neil Young, QC, representing Essendon, said Mr Hargreaves was entitled to make the recording for note taking, and that the evidence should be included in the trial.
Justice Middleton will rule on the point on Tuesday.
Earlier on Monday, Mr Young said that a finding against his client could "effectively destroy its business".
With Mr Hird and his wife Tania watching from the back corner of the court, lawyers for Essendon, Mr Hird and ASADA outlined their opening arguments on the legalities of a joint investigation between the anti-doping body and the AFL.
Essendon and Mr Hird argue the joint investigation between ASADA and the AFL was unlawful and that therefore the show-cause notices issued against 34 Essendon players were invalid.
Lawyers for both the Bombers and Mr Hird argued ASADA, an independent body, acted outside its powers in conducting the investigation thorough "improper purposes".
This purpose, they argued, was to assist the AFL in laying charges against Essendon for governance breaches and to impose sanctions on the Bombers, Mr Hird, then assistant coach Mark Thompson and then football chief Danny Corcoran.
Tom Howe, QC, for ASADA, pointed to Essendon's "abysmal governance and management" during its 2011-12 supplements program, and declared it would be "wholly perverse" and "nonsense on stilts" if Justice Middleton ruled against the anti-doping body.
Mr Howe said any finding against the body would also potentially compromise future anti-doping investigations.
He insisted there was nothing in the ASADA act that prohibited a joint investigation with the AFL, and that World Anti-Doping Agency rules encouraged sporting bodies to co-operate with anti-doping investigators though the sporting bodies' coercive powers.
David Grace, QC, representing the 34 players, said his clients were in an "invidious position" because they were contractually obliged to answer questions put to them by investigators and without being given the privilege to not answer questions through self-incrimination.
Throughout the opening submissions, Justice Middleton challenged lawyers from all camps on several points of law, and notably queried whether ASADA could issue show-cause notices based on reduced information if he ruled against the anti-doping body.