A Supreme Court hearing in two weeks' time will determine whether Essendon Football Club doctor Bruce Reid will have a charge against him heard by an independent arbiter.
Justice David Beach on Thursday set aside September 19 to hear Dr Reid's lawyers outline why the long-standing club doctor should have his charge of conduct unbecoming - related to his involvement in the Essendon supplements program - heard before an independent body and not the AFL Commission.
Dr Reid wants his case heard before a retired judge of the Supreme Court because he fears the AFL Commission is biased, having already accepted guilty pleas from the three other Essendon officials charged over the supplements program, senior coach James Hird, assistant coach Mark Thompson and football manager Danny Corcoran.
Through his lawyers, Dr Reid is also arguing the commission has formed bias against him, by accepting allegations as fact, through its conduct in the plea hearings for Hird, Thompson and Corcoran and by refusing already to appoint an independent arbiter to hear his charge.
Dr Reid's barrister, Ross Gillies, QC, told the Supreme Court there was little point in the two parties going to mediation, as he had spent days "fruitlessly" trying to convince the commission to have the case referred to an independent arbiter.
Justice Beach also asked the AFL's barrister, Jeff Gleeson, SC, to encourage his client to consider passing the matter on to an independent tribunal, given the matter was a "once-in-a-generation" case.
But Mr Gleeson said the league was determined to hear the charge against Dr Reid.
‘‘With a heavy heart they feel and obligation to hear whether there has been a breach of the rules,’’ Mr Gleeson said.
Mr Gillies said Dr Reid ‘‘hotly denies’’ any part in Essendon’s implementing the supplements program in 2011-12.
‘‘He was certainly not part of the decision to implement the supplements program,’’ he said.
Hird, Thompson and Corcoran all accepted penalties, but Mr Gillies said there was more at stake for Dr Reid given his role and reputation as a medical practitioner.
‘‘It’s fundamentally an allegation that he hasn’t done enough to protect his patients, a serious allegation against a doctor,’’ he said.
The court heard Dr Reid was concerned he would not be given a fair hearing by the AFL Commission because it was in a ‘‘horrible bind’’ having already accepted that Essendon implemented the program as a club and that commission members were ‘‘intrinsically linked’’ to the AFL investigation.
‘‘They can’t be the investigator, they can’t be the prosecutor, they can’t be the judge and they can’t be the jury,’’ Mr Gillies said.
Mr Gillies also outlined concerns against AFL chairman Mike Fitzpatrick - who sat on the commission’s sub-committee to hear the Essendon charges, along with Justice Linda Dessau and Paul Bassat - in Dr Reid would not be acquitted, and organising a meeting of the club presidents of the other 17 clubs supporting the AFL’s action against the Bombers.
He said Justice Dessau had also shown ‘‘serial irritation’’ when Dr Reid’s lawyers raised the subject of bias with the sub-committee members.
Mr Gillies said the AFL had shown ‘‘triumphalism’’ in laying the charges against Essendon and a hunger to prosecute the manner which ‘‘was at odds with a fair hearing’’ for his client.
In response, Mr Gleeson said the allegation of corruption was the most serious someone could make towards a person in a judicial position, and that Dr Reid’s arguments of bias were made on ‘‘the most appallingly light material’’.
He said there was no evidence the AFL Commission had any role in the investigation into the supplements program or laying the charges against Essendon, and that it would still conduct a fair hearing for the charge against Dr Reid.
‘‘We are alarmed parties have seen fit to assert there is a closed-mindedness on behalf of the commission,’’ Mr Gleeson said.
Mr Gillies said he was also concerned by Mr Fitzpatrick’s reference to Mr Gleeson as ‘‘Jeff’’ during last week’s hearings, but Mr Gleeson said that concern was ill-founded given the informal references made throughout, which also included references to Thompson as ‘‘Bomber’’, Hird as ‘‘James’’ and Hird’s lawyer, Julian Burnside, QC, as ‘‘Julian’’.
Essendon was fined $2 million, stripped of draft picks from the 2013 and 2014 national drafts and banned from this year’s finals series. Hird was suspended for one year, Thompson was fined $30,000 and Corcoran was suspended for four months.