, .

Fonn 69 Rule 31.11(1)

PROCESSED

Amended Originating application for relief under section 39~=--~ Judiciary Act 1903

Federal Court of Australia

District Registry: Victoria

Division: General .

Essendon Football Club (ACN 004 286 373)

Applicant

No. VIP 327 of 2014

30 JUN 2011 I . - .•.• : P~j(J . ... ... ... .............. ............... . .

The Chle' Executive Officer of the Australian Sports Anti-Doping Authority

Respondent

To the Respondent

The Applicant applies for the relief set out in this application.

The Court will hear this application, or make orders for the conduct of the proceeding, at the

time and place stated below. If you or your lawyer do not attend, then the Court may make

orders in your absence.

You must file a notice of address for service (FonTl 10) in the Registry before attending Court or

taking any other steps in the proceeding.

Time and date for hearing:

Place: Owen Pixon Commonwealth Law Courts Building, 305 William Streel, Melbourne vie 3000

Date:

Signed by an officer acling with the authority of the District Registrar

Filed on behatf of (name & role of party) The Applicant, Essendon Football Club

Prepared by (nerne of personllawyer) _~2..'".h~B~o~ms~le~;n~=;;:=:;;;:;::;;;~:;;;;;:;::====== Law firm (if applicable) Maurtce BlackbuL'!. T eJ (03)9605 2831 Fax ~("'O"'3)"9"'2"'58,,9"'6"'O,,O _ _____ _ Email jbomsteln@mauriceblackbum.com.au Address for service Level 1 0, 456 Lonsdale Street. Melboume, VlClooa 3000 (Include state end postcode) OX 468 Melbourne Victoria 3000

IN THE FEDERAL COURT OF AUSTRALIA (FCA) VICTORIA REGISTRY - FEDERAL COURT OF AUSTRALIA GENERAL DIVISION No: VID32712014

NOTlCEOFFlUNG

This document was filed electronically in the FEDERAL COURT OF AUSTRAUA (FCA) on 3(}I06'2014.

Document Lodged:

File Number:

File litle:

District Registry:

DErAILS OF flUNG

Amended Document

Vl0327/2014

fsscndon Football aub v The Oief~cutive Officerofthe Australian Sports Anti-Doping Authority VJcroRIA REaSTRY - FEDERAL COURT OF AUSTRAUA

Note

ThiS Notice forms part of the document and contains information that might otherwise appear elsewhere in the document. The Notice must be included in the document served on each party to the proceeding.

• •

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Amended Details of claim

On the grounds stated below, the Applicant applies for the followIng relief under section

398(lAXc) of the Judiciary Act 1903:

1 , A declaration that the investigation conducted by ASADA into the players. who were on

the Essendon Football Club (EFC) playing list during the 2012 football season (the EFC

players) and other persons employed by the Essendon Football Club during that season

(the EFC personnel) and which was referred to by ASADA as part of "Operation Cabla­

(the investigation) was ultra vires the Australian Sports and Anti-Doping Authority Act

2006 (the Act). the Australian Sports and Ant~Doplng Authority Regulations 2006 (the

Regulations) and the NAD Scheme in Schedule 1 to the Regulations (the NAD

scheme).

2. An injunction restrainIng the Respondent from further Issuing to any EFC player or EFC

personnel a notice under clause 4.07A(2) of Schedule 1 to the Regulations arising from

or relying on information obtained in the investigation.

3. A pennanent injunction restraining the Respondent from using any information obtained

in the Investigation for any purpose under the Act, the Regulations and the NAD

Scheme.

4A. An order setting aside all notices issued by ASAOA to the EFC players purportedly

pursuant to clause 4.07A(2) of the NAO Scheme.

4B. Further or alternatjvely:

(a) an order pennanently staying the operation of the N?tices; Or

(b) an Injunction restraining the Respondent from ·requiring a response to. or

otherwise takinq any action In reliance upon. the Notices.

4. Costs.

5. Such further or other relief as the Court considers just.

The ground. of the application

The grounds of the application are as follows:

1. At all relevant times up to and including 31 July 2013, clause 3.27(1) of the NAD scheme.

as contemplated by 5 13(1 Xf) of the Act, empowered ASADA to conduct investigations of

possible anti-doping rule violations that may have been committed by athletes or support

persons.

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2. Neither the Act. the Regulations nor the NAD Scheme authorised ASADA to conduct a

joint investigation with any other entity, incfuding a sporting administration body.

3. At all relevant times up to and including 31 July 2013. the conducting of a purported -joint

investigation- by ASADA was inconsistent with:

3.1 the oonstraints imposed on -entrusted persons· (Including members of ASADA

staff) by s 71 of the Act relating to the disclosure of NAO scheme personal

Information: and

3.2 the limited circumstances in which clause 4.21 of the NAD Scheme, read with

s 13( 1 )(g) of the Act, permitted disclosure of that information to a sporting

administration body - namely I where:

(a) the information was information of the kind described in dause 4.21 (1) of the

NAO Scheme; and

(b) the disclosure was for the purpose of or in connection with an investigation

into possible violations of the anti-doping rules within s 13(1 )(g) of the Act;

and

was ultra vires the Act, the Regulations and the NAO Scheme.

L-In ab.out February 2013, but upon a date unknown to the Applicant, ASAOA and the

Australian Football League (the AFLj entered Into an agreement whereby ASAOA and the

AFL would conduct. each with the aid of the other, what both ASAOA and the AFL

thereafter described as a -jOint investigation~ (the Agreement).

4,LFrom February 2013, despite the absence of any power In ASAOA to conduct a "joint

investigation- and the constraints on the disclosure of information by members of ASADA

staff, ASADA purported to conduct with the AFl a -joint investigation- into the Essendon

Football Club, its players and officials in respect of allegations of an anti-<loping rule

violation t..Wlder the Act (the Joint Investigation).

~~In the course of the Joint Investigation and before 1 August 2013, members of ASAOA

staif and employees of the AFL jointly interviewed the EFC players and EFC personnel,

and represented the investigation as:

li4§.La joint investigation between the AFL and ASAOA; and

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lH6~an investigation to which the EFC players and EFC personnel were compelled to

provide information in answer to questions asked by members of ASADA staff

and employees of the AFl.

BA. Further, in the course of the Joint Investigation:

6A.1 ASADA provided the AFl with Immediate access to confidential information

provided by EFC players and EFC personnel at interviews by permitting AFL staff

to attend, jointly conduct. and tape record those Interviews for purposes

extraneous to ASADA's investigation: and

6A.2 ASADA prOVided the AFl with access to documents and records obtained by

ASADA in the course of its investigation and permitted the AFL to use this

information for purposes extraneous to ASADA's investigation.

f:l.:.Lln August 2013. ASADA prepared and published a document it called an -interim reporf

(the Interim Report), based on information obtained during the Joint Investigation. The

Interim Report was provided to:

6,4L1Jhe Applicant;

~7.2 members of the AFL·executlve;

&.-37.3 each and every member of the AFL Commission; and

7.4 other persons and entities, unknown to the Applicant. who were neither athletes

nor persons otherwise permitted by the Act and the Regulations to receive the

information contained in the Interim Report.

7 A. By providing the Interim Report. Including any versions or drafts thereof, to the AFL.

ASADA:

7A.1 acted in breach of the confidentiality obligations imposed on ASADA by the Act (s

13(1)en and (g) and s 71) and the NAD Scheme ·(clause 4.21); and

7A.2 acted for purposes extraneous to those of ASADA in furthering its own

investigation Into possible violatioos of the anti-doping rules.

-7--:48 .1 ASADA lacked any power to conduct the Joint Investigation: aREJ

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8.2 the Joint Investigation contravened the constraints on disclosure of NAO sdleme

personal information; and

.1-.28.3 the Interim Report was disseminated by ASADA In breach of Its obligations of

confidentiality and for purposes extraneous to the furthering of ASADA's own

investigation;

the infonnation collected during the Joint Investigation (being the information on which

the Interim Report was based) cannot qualify as evidence or information received by the

Respondent for the purposes of clause 4.07A(1) of the NAO Scheme. as it has stood

since 1 August 2013.

S:-Lln the absence of such evidence or information. the Respondent has no power, under

clause 4.07A(1) and (2) of the NAD Scheme, to:

8-:49.1 determine that there is a possible non-presence antt-doping rule violation that

warrants action by the Respondent; or

9.2 give a notice to any EFC player or EFC personnel of that possible non-presence

anli-doping rule viotation.

9A. All notices purportedly issued by ASADA to EFC players under clause 4.07A of the NAD

Scheme are invalid.

G.1 O. ,The Applicant is and was at all relevant times a club licensed to field a team in the

competition conducted by the AFL and subject to the AFL Regulations and the AFL Player

Rules.

~ The issuing by the Respondent of any notices to any EFC player or EFC personnel arising

from or relying on infonnation obtained In the joint Investigation is likely to cause the

AppRcant damage to its reputation and business interests.

Applicant's address

The Applicant's address for service is:

Place: Josh Bomstein Principal, Maurice Blackbum Level 10, 456 Lonsdale Street, Melboume,

Victoria 3000

Email: jbomstein@mauri~blackburn.com.au

The Applicant's address is 275 Melrose Drive, Melbourne Airport, Victoria,

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Service on the Responctent

It is intended to serve this application on the Respondent.

Date: 4:! 27 June 20t 4

Signed "by Josh Bornstein on behalf of Maurice Blackburn lawyers

Lawyers for the Applicant