James Hird has turned his sights on AFL integrity unit investigator Brett Clothier in the Australian Sports Anti-Doping Authority court case, with the suspended Essendon coach set to arrive home from France next month in time for the trial.
In the directions hearing in the Federal Court on Friday, in front of Justice John Middleton, the Bombers lost their opening gambit – to have an injunction served on ASADA preventing it from forcing 34 current and former Essendon players to respond to their show-cause notices before the August 11 trial.
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Essendon unsuccessful in injunction bid
Essendon fails in injunction bid as the Bomber's lawyers face off with ASADA in the Federal Court.
The players are alleged to have been administered a banned substance – Thymosin beta 4.
It also emerged Hird wants any documents related to the investigation handed over, with Middleton urging the Bombers, Hird and ASADA to get together before Wednesday's second directions hearing to determine what will be made available.
As part of Hird's case, his lawyer Nick Harrington revealed Clothier was facing a subpoena to provide documentation and even evidence in person. Clothier was a key figure in the investigation last year, with Harrington saying Hird had answered 1300 questions over nine hours when interviewed by authorities in April 2013.
In front of a packed gallery, Middleton said Hird and his lawyers could expect to "get your hands on" the documents he applied for.
Hird has already mentioned AFL chief executive Gillon McLachlan and his predecessor Andrew Demetriou in documents lodged with the Federal Court.
Next week's directions hearing in front of Middleton will also decide whether the players are required to give evidence.
David Grace, QC, acting for the players, said they were “very sensitive to the issue of anonymity” and want to avoid the "expense and distress" of having an active role in the case.
Acting AFL Players Association chief Ian Prendergast had already made it clear through the week that the players did not want to give evidence.
Grace said the players endorsed the club's stance that the joint probe was illegal. If the Bombers and Hird ultimately win the case, this would mean the 34 players would not have to respond to their show-cause notices for the alleged use of thymosin beta 4.
“It’s obvious that any success that the Essendon Football Club would have in the claim would flow through to the players in any event,” Grace said.
But if the case is deemed unlawful, ASADA says it has other evidence which it could use.
Grace said he didn't anticipate ASADA would trigger a response to the show-cause notices before the trial unless ASADA chief Ben McDevitt enacted an "unknown method".
ASADA has offered the players the chance to accept a six-month ban should they come forward and admit they were duped by Essendon's former sports scientist Stephen Dank into being injected with an illegal substance, and were also prepared to help the inquiry. Players maintain they are of the belief they weren't administered any banned substances.
In raising an issue about affidavits, Harrington revealed Hird would return to Australia on July 28. Hird is completing an expensive business course in France, and his 12-month, AFL-imposed suspension as a result of the Bombers' poor governance ends in time for him to return for the round 23 clash against Carlton. He is expected to be a consultant to acting senior coach Mark Thompson.
That the Bombers lost their bid for an injunction means ASADA, having already served show-cause notices, could insist the players respond to these notices within a 14-day period before the trial even starts.
Essendon's lawyer, Neil Young, QC, argued he wanted "proper protection" for the players who would face an uncertain immediate future should an injunction not be granted.
"They [clubs and players] are effectively on tenterhooks from Monday. Waiting to see whether they get a notice requiring an application on short notice to the court with all of the disruption that requires," he said.
Tom Howe, QC, acting for ASADA, said Essendon's application was weak and argued an injunction would undermine the authority of ASADA's chief executive McDevitt.
Middleton rejected claims by Young that ASADA was at risk of "agitating illegal practices further" before the trial and refused an injunction.
However, Middleton said he would be "very disappointed" if ASADA took further action before the trial but felt the anti-doping body was not "ready to press any button".
If ASADA was to act, the Bombers could seek an immediate injunction.
The Bombers and Hird are arguing the joint probe into the club's 2011-12 supplements program was unlawful, with ASADA working outside of its powers.
Middleton's commentary indicated he wants this case resolved as quickly as possible, saying: “I have the feeling probably everyone wants to bring this to an end as soon as possible."