Anti-Doping Rule Violation Panel v XZTT (No 2)

[2013] FCAFC 135

FEDERAL COURT OF AUSTRALIA

Anti-Doping Rule Violation Panel v XZTT (No 2) [2013] FCAFC 135

Citation:

Anti-Doping Rule Violation Panel v XZTT (No 2) [2013] FCAFC 135

Appeal from:

XZTT v Anti-Doping Rule Violation Panel [2012] AATA 728

Parties:

ANTI-DOPING RULE VIOLATION PANEL v XZTT

File number:

VID 913 of 2012

Judges:

NORTH, COWDROY AND MCKERRACHER JJ

Date of judgment:

20 November 2013

Catchwords:

COSTS – whether the Court should exercise its discretion to depart from usual rule that costs follow the event – where appeal clarified interpretation of the National Anti-Doping Scheme and role of the Anti-Doping Rule Violation Panel – whether Court should exercises its discretion to grant the respondent athlete a costs certificate – where appeal by the Panel corrected error of law

EVIDENCE – whether non-publication order should remain in force – where elite Australian athlete successfully challenged decision of the Anti-Doping Rule Violation Panel to place an entry of ‘possible use’ on its Register of Findings in the Administrative Appeals Tribunal but the Panel’s appeal was unanimously upheld by the Full Court – whether non-publication order necessary to prevent prejudice to the proper administration of justice – distinction between due process under the National Anti-Doping Scheme and administration of justice – relevance of open justice principles in exercise of judicial power

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 43(2)
Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)

Cases cited:

Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95
Australian Broadcasting Commission v Parish (1980) 43 FLR 129
Brown v The Members of the Classification Review Board of the Office of Film and Literature Classification [1997] FCA 487
Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476
Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351
Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435
Hogan v Australian Crime Commission (2010) 240 CLR 651
McPherson v McPherson [1936] AC 177
Parsons and Parsons v McBain [2001] FCA 885
Richards v Faulls Pty Ltd (1971) WAR 129
Russell v Russell (1976) 134 CLR 495
Shelton v Repatriation Commission (1999) 85 FCR 587
SRD v Australian Securities Commission (1994) 52 FCR 187

Date of hearing:

Determined on the papers

Date of last submissions:

24 September 2013

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

39

Counsel for the Applicant/Cross-Respondent:

Ms H Younan

Solicitor for the Applicant/Cross-Respondent:

Kennedys Lawyers

Counsel for the Respondent/Cross-Claimant:

Mr M Hardie appeared as an advocate for the Respondent/Cross-Claimant

Solicitor for the Respondent/Cross-Claimant:

Coulter Roache Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 913 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANTI-DOPING RULE VIOLATION PANEL Applicant/Cross-Respondent
AND:	XZTT Respondent/Cross-Claimant

JUDGES:	NORTH, COWDROY AND MCKERRACHER JJ
DATE OF ORDER:	20 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The non-publication order made by the Court on 14 March 2013 pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) be discharged.

2.The respondent/cross-claimant pay the applicant/cross-respondent’s costs, to be taxed if not agreed. 

3.A certificate be granted to the respondent/cross-claimant pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in terms of the attached certificate.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 913 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANTI-DOPING RULE VIOLATION PANEL Applicant/Cross-Respondent
AND:	XZTT Respondent/Cross-Claimant

CERTIFICATE UNDER FEDERAL PROCEEDINGS (COSTS) ACT 1981 (CTH)

JUDGES GRANTING THE CERTIFICATE:	NORTH, COWDROY AND MCKERRACHER JJ
DATE OF GRANT OF THE CERTIFICATE:	20 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT CERTIFIES THAT IN THE OPINION OF THE COURT it would be appropriate for the Attorney-General to authorise a payment to the respondent under Section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of:

(a)       the costs incurred by the respondent in relation to the appeal; and

(b)the costs incurred by the applicant in respect of the appeal that are required to be paid by the respondent in pursuance of the order of the Court of 20 November 2013.

DATE OF CERTIFICATE  20 November 2013

DEPUTY DISTRICT REGISTRAR

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 913 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANTI-DOPING RULE VIOLATION PANEL Applicant/Cross-Respondent
AND:	XZTT Respondent/Cross-Claimant

JUDGES:	NORTH, COWDROY AND MCKERRACHER JJ
DATE:	20 NOVEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. In Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95 (ADRVP No 1), we allowed an appeal and dismissed a cross-appeal from the Administrative Appeals Tribunal (the AAT).  Orders were made for the filing and serving of submissions in relation to continuation of non-publication of the name of the respondent (the Athlete) and in relation to costs of the appeal.  It is against the background of the reasons in ADRVP No 1 (and adopting the same abbreviations) that the following rulings are made. 

2. Before doing so, we reiterate that there are grounds for concern as expressed by the AAT and this Court in ADRVP No 1 as to the manner in which the assertion against the Athlete has been processed.  That said, the Athlete seeks to persuade us that fundamental principles of open justice and costs following the event should be displaced.  He does so in circumstances in which ultimately he has been unsuccessful in challenging the entry of his details on to the Register.  While the appeal to the AAT may have been on a basis of no or little risk as to publicity or costs to the Athlete, it should always have been evident that an appeal to this Court may have been pursued.  In this Court, different considerations apply in relation to those matters. 

   NON-PUBLICATION ORDER

   Background

3. The AAT made an order pursuant to s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) restricting the publication of the name of the Athlete.  That provision is in these terms:

   35       Hearings to be in public except in special circumstances

   …

   Private hearing etc.

   (2)Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

   …

   (aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; …

4. Following the commencement of the appeal from the AAT the Athlete sought an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA) that the Athlete’s name not be published and that any material identifying him be restricted to the parties to the proceeding and their legal representatives on the grounds that such an order was necessary to prevent prejudice to the proper administration of justice.  On 14 March 2013 the Court ordered that until further order the Athlete’s name and any material identifying him be restricted to the parties and their legal representatives.  We indicated we would review this following delivery of the substantive judgment. 

   Statutory Context

5. Section 37AG FCA provides that the Court may make a non-publication order inter alia on the ground that the order is necessary to prevent prejudice to the proper administration of justice. Such an order must specify the ground upon which it is made and specify the information to which the order applies: s 37AG(2) FCA.

6. Section 37AF is preceded by s 37AE FCA which provides:

   In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 

   This provision has been reemphasised in many cases. 

7. That overriding objective is balanced by s 37AF and s 37AG FCA to which the Athlete points and which permit the Court to make (amongst other things) a suppression or non-publication order where it is necessary to prevent prejudice to the proper administration of justice.

   Arguments raised by the Athlete

8. The Athlete argues that his name, which constitutes ‘NAD Scheme personal information’, should not be published as to do so would prevent or impede the fair resolution of the proceedings according to law. At this point of the ASADA process there is a prohibition on the disclosure of the Athlete’s name and, accordingly, non-publication would preserve the integrity of that process and would not impede the fair resolution of it. The Athlete argues that the unauthorised publication of ‘personal information’ would prejudice the proper administration of justice and due administration of the NAD Scheme: see s 71 of the ASADA Act and ‘personal information’ as defined in s 6 of the Privacy Act 1988 (Cth).

9. As noted in ADRVP No 1, cl 4.22 of the NAD Scheme sets out the situations in which an entry on the Register might be published. Publication of any NAD Scheme personal information including the Athlete’s name is only possible when one of the criteria in cl 4.22(1)(b) of the NAD Scheme has been satisfied. One of those criteria is the handing down of a decision following a hearing process conducted in accordance with Art 8 of the WADA Code in relation to the finding concerning information by a sporting tribunal or, alternatively, where an athlete has waived his or her right to a hearing. It is argued, therefore, that the orders sought by the Athlete in this Court conform with the process recognised by Parliament under the ASADA Act.

10. The Athlete points to Hogan v Australian Crime Commission (2010) 240 CLR 651 as authority for the proposition that the administration of justice by this Court includes not only the generally recognised interest in open justice openly arrived at, but also the restraints on disclosure where this would prejudice the proper exercise of the Court’s adjudicative function. The Athlete argues that in this case the relevant information, that is, his name, is the very subject matter of the proceedings, namely, the entry on the Register. It is the potential publication of the entry that the Athlete has sought (but failed) to prevent. Accordingly, in the circumstances of this case, it is argued that the non-publication order is necessary to prevent prejudice to the proper administration of the NAD Scheme prior to the final resolution of the matter after determination in the CAS.

    Consideration

11. In ADRVP No 1, we agreed with the AAT’s expression of concern as to the UCI’s serious non-compliance with its own rules and the WADA Code in relation to notifying the Athlete of his test results.  However, this did not at this stage of the process, in our view, afford the Athlete a basis upon which to succeed in his argument that the entry on to the Register should not have been made.  (The AAT was also of the view that those time breaches did not  give rise to that consequence.)

12. The difficulty in the submissions for the Athlete is that they merge the concepts of the interests of justice with due administrative process under the NAD Scheme. The Athlete’s submissions are directed more to the due administration of the NAD Scheme rather than the proper administration of justice. Section 37AF FCA is directed to the latter consideration and the work of this Court. Although the Athlete’s name is ‘NAD Scheme personal information’ as that expression is defined in the ASADA Act, the NAD Scheme does not govern proceedings in this Court in which principles of open justice are paramount. The Full Court in Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 (at [30] and [33]) per Merkel J (with whom Finn and Stone JJ agreed) noted the fundamental differences between the AAT and the Court and the different criteria to be applied in respect of suppression orders under s 35 of the AAT Act and s 50 FCA (the predecessor of s 37AF). That case affords support for the view that there was no legislative intention that privacy and confidentiality in relation to a matter in the AAT should continue when that matter or a part of it comes before the Court.

13. There is no compelling reason why the principle of open justice should be displaced in relation to this dispute. 

14. The only question in this dispute was whether or not the entry should have been placed on the Register.  That entry having been made and, as a result of ADRVP No 1, it continues to stand, publication of the Athlete’s name has no influence on the question of entry on to the Register any longer. 

15. From a practical perspective, if the Athlete challenges the assertions against him in the CAS he may fail or succeed.  If he fails, then his identity will be revealed in any event.  If he succeeds, then the disclosure of his identity in these proceedings which he initially commenced in the AAT will result in his vindication. 

16. Outside of the NAD Scheme there is no automatic entitlement to confidentiality.  If the Panel is challenged through the appeal system, in this case ultimately unsuccessfully, there is no proper basis for departure from the principle of open justice. 

17. As repeatedly observed, it is desirable that the public should know, if they wish to know, with accuracy what and who is the subject of the Court’s proceedings.  That observation leads to a further reason for disclosure of the Athlete’s identity.  As Hill J put it in SRD v Australian Securities Commission (1994) 52 FCR 187 (at 191F):

    Accurate knowledge of such things prevents unwarranted suspicion or speculation as to the Court's business, which suspicion or speculation might embarrass or prejudice others engaged in the same professional field but not the subject of proceedings before the [Panel].

18. We accept the submissions for the Panel citing Deane J in Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (at 155) that ‘Publicity “is the authentic hallmark of judicial as distinct from administrative procedure”’: McPherson v McPherson [1936] AC 177 (at 200) also quoted by Gibbs J in Russell v Russell (1976) 134 CLR 495 (at 520).

19. There is no evidence that the proper exercise of the Court’s adjudicative function would or may be prejudiced as a consequence of the disclosure of information identifying the Athlete. There is no further power under s 37AF(1)(a) FCA for the Court to make a non-publication order merely because it would be in some abstract sense or as a part of a balancing exercise reasonable to do so: SRD (at 190F) and Hogan (at [31]).

20. For those reasons, the orders made by the Court on 14 March 2013 pursuant to s 37AF FCA will be discharged.

    COSTS

21. The Athlete contends that the parties should bear their own costs.  The Athlete draws on decisions of this Court regarding the appropriateness of such an order in administrative cases where an application to the Court was not unreasonable, as in this matter, as it clarified the law in a wider interest than simply the interest of the particular applicant.  In Shelton v Repatriation Commission (1999) 85 FCR 587 Burchett, RD Nicholson and Finkelstein JJ said (at [10]-[11]):

    10       There is one aspect of the matter which has concerned us. The Statement of Principles, although we have reached a firm view of its correct construction, is worded in less than ideal language, and indeed somewhat confusingly. In literal terms, it suggests the meaning the appellant gave it. In that situation, and bearing in mind that the legislation authorising the Statement of Principles is beneficial legislation, it cannot be said the application to the Court was unreasonable. Often, in administrative law, such an application as this was clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion given to the Court by the Federal Court of Australia Act 1976 (Cth) should not be automatically exercised adversely to the losing party.

    11       In the circumstances of this case, we think the appeal should be dismissed, subject to a variation of the order made below so as to leave each party to bear her or its own costs. On the appeal, in which the appellant thus had some small success, the same costs order should be made, so that the costs will lie where they fall. It should be appreciated that, although costs generally follow the event, there is a significant number of cases in which this is not so: see the discussion by Lord Bridge in Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22 at 40.
    (emphasis added)

22. The Athlete contends that his appeal was similar to that in Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351 where Burchett J concluded (at 355):

    Having regard to the importance for the Department of having the position clarified, and the nature of the application, I exercise my discretion as to costs in favour of the applicant, so as to make no order against him, although he has failed.

    (See also Brown v The Members of the Classification Review Board of the Office of Film and Literature Classification [1997] FCA 487).

23. The Athlete stresses that the Panel’s appeal was on a question of law that did not affect the merits of the Athlete’s case and the interpretation question raised in the appeal has been the subject of a legislative amendment to overcome the outcome of the AAT decision.  He also points to the fact that on the hearing before this Court, the Athlete made limited submissions in respect of the Panel’s appeal.

24. Alternatively, it is contended that if an order for costs was to be made against the Athlete he should receive a certificate under s 6(1) under the Federal Proceedings (Costs) Act 1981 (Cth) which provides as follows:

    6        Costs certificates for respondents - Federal appeals

    (1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

    …

    Consideration

25. Costs orders are in the discretion of the Court: s 43(2) FCA. The discretion must be exercised judicially and not against the successful party except where there are special circumstances connected with the case.

26. The problem with the contentions advanced by the Athlete in relation to costs is that the Panel won both grounds of appeal, first, as to the proper interpretation of the functions of the Panel under the NAD Scheme and, secondly, in relation to the recording of entries on the Register.  And it did so for the same reasons advanced unsuccessfully by the Panel in the AAT. 

27. Whether or not the Athlete advanced ‘much argument’ against the Panel in relation to the Panel’s appeal, he certainly advanced argument in relation to his own cross‑appeal.  In the end, the two were closely connected but determination of the Panel’s appeal in its favour meant that the cross-appeal points fell for determination on another day. 

1. This is entirely consistent with the position that the Panel has taken throughout. 

2. It may be true that the complex legislative scheme was at least to some degree clarified by the explanation in ADRVP No 1 and the complexity was compounded by the unfortunate definition of ‘finding’ in that scheme but ultimately we reached a unanimous conclusion that the intention of the NAD Scheme was clear and, in substance, that the matters the Athlete wished to raise were matters to be raised before the CAS or, in an appropriate case, before another tribunal.  It may also be that the legislature thought fit to amend the NAD Scheme to clarify its intention as a result of the conclusions reached in the AAT but as we respectfully departed from the reasoning process of the AAT, the legislative amendment can be of little moment in the costs argument. 

3. No suggestion has been raised that any aspect of the conduct of the Panel’s case might warrant a departure from the usual order as to costs. 

4. In all those circumstances, it is not appropriate that there be a departure from the normal order which will be that the Athlete should pay the Panel’s costs of the appeal, to be taxed if not agreed. 

   Costs Certificate

5. As to the alternative submission by the Athlete that he should be granted a costs certificate, there is no doubt that the appeal pursued by the Panel was a ‘federal appeal’ and that it succeeded on a question of law. Thus it would be open to grant the Athlete a costs certificate (see [24] above).

6. Not every federal appeal that succeeds on a question of law will entitle an unsuccessful party to a costs certificate as was made clear in Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 (at 477-478). The unsuccessful respondent or party in the case of the cross-appeal must satisfy the Court that it is appropriate in all the circumstances for a certificate to be granted. In that case the Full Court (Smithers, Sweeney and Woodward JJ) said (at 477):

   In our view the discretion of the court is unfettered, once the respondent shows that the grant of a certificate is within the power of the court, though it must of course be exercised judicially and on proper grounds.

   The respondents have argued that there is a presumption in favour of the grant of a certificate once the pre-requisites are satisfied. It was said that a certificate should only be refused if the respondents have been in some way responsible for the error of the court below - by failing, perhaps, to draw attention to a relevant statute or the overruling of an apparently binding precedent - or the request is for some other reason unmeritorious.

   In our view there is no such presumption. The unsuccessful respondent must satisfy the court … that it is appropriate in all the circumstances for a certificate to be granted, and the circumstances which could properly influence that decision are many and various. One matter to be borne in mind in all cases is that it is the taxpayer who is being asked to bear the cost, … in this court, of the error of law which has occurred. This fact may produce a different emphasis in decisions under this Act from those reached in jurisdictions where the payments are made from a special fund which is automatically contributed to by all litigants through their payment of court fees.

7. The Full Court went on to adopt the views expressed in the judgment of the Full Court of the Supreme Court of Western Australia in Richards v Faulls Pty Ltd (1971) WAR 129 (at 137-138). In construing similar legislation that Court said:

   The question is whether the power which is conferred upon the court should be exercised. It is a discretionary power and the grant of the certificate follows upon and requires the exercise of the discretion. Hence it is a discretion to grant; it is not a discretion to refuse. Hence it is not the position, adapting to this case the words of the joint judgment of Latham CJ Rich and Dixon JJ in Main v Main (1949), 78 CLR 636 at 643, that once facts are proved bringing the case within s 10(1) a certificate should be granted unless the court thinks on discretionary grounds that the certificate should be withheld; on the contrary, the unsuccessful respondent to an appeal must show some ground calling for the exercise of the discretion in his favour and he does not do this merely by showing that the appeal has succeeded on a question of law: Reeve v Fowler [1965] NSWR 110, per Walsh J at 111. Of course the nature of the case may in itself show that a certificate should be granted and not infrequently the court is able to act without further evidence or argument.

   It is axiomatic that when a discretion is given to a court or a judge the discretion must be exercised judicially, that is to say according to proper principles: indeed one of the comparatively few grounds upon which a discretionary decision can be successfully challenged on appeal is that there was in it some error of principle. When a new discretion is created by statute one looks primarily to the statute itself for guidance, either express or implied, as to the principles upon which the discretion is to be exercised, that is to say what factors  should be taken into account, or, on the other hand, put aside as irrelevant when reaching a decision. Some of the difficulties arising under this Act are illustrated in the judgment of Moffitt J in Acquilina v Dairy Farmers Co-Operative Milk Co Ltd (No 2) (1965) NSWR 772, where his Honour considered in detail the corresponding legislation of New South Wales. The intention of the Act is clearly enough to relieve a litigant from the burden of the costs of an appeal in a case where he has obtained a favourable decision but has lost it on appeal because the court below erred on a question of law; the purpose of the Act is not, however, to promote litigation, nor to provide legal aid in a broad sense out of the Fund: see per Maguire J in Pataky v Utah Construction Pty Ltd (1966) 1 NSWR 698; 84 WN (Pt 1) (NSW) 201 at 208. It would be wrong for this Court to say anything which could be taken as fettering the unfettered discretion given by the Act, but nevertheless it appears to us that in broad terms the Act is aimed at giving relief in cases where the decision turns on a question of law, as contrasted with the facts of the particular case, where that question of law might at least reasonably be resolved in different ways, so that in a sense the unsuccessful party may be thought to have suffered some 'misfortune' owing to a doubt about the correct rule of law to be applied.
   (emphasis added)

8. There are factors in favour of the exercise of the discretion to grant a certificate including the fact that the Court (and arguably the legislature) has clarified the effect of the legislative scheme.  But as against that, having regard to our reasoning that the entry on the Register simply records an ‘assertion’ as the words in the statute and NAD Scheme make clear, the specific argument advanced for the Athlete was unlikely to succeed.  Similarly, his challenge as to the recording of a possible breach failed on the same basis.  However it is to be noted that arguments for the Athlete did succeed before the AAT. 

9. This appeal differs to some extent from Parsons and Parsons v McBain [2001] FCA 885 where the grounds for the grant of the certificate were held to be made out where the Full Court on appeal overruled the case on which the primary judge had initially founded his decision and also clarified comments made in another case. As indicated from Richards above, there is no presumption in favour of the grant of a certificate.  To the contrary, as indicated there and in Bullock, the Court has an ‘unfettered discretion’ to be exercised, of course, judicially.  It is not sufficient simply to show that the appeal succeeded due to an error of law in the court or tribunal from which the appeal was advanced.  

10. The case for a certificate to be granted may be stronger where the error of law which is corrected is not an error expressly induced by the arguments of the applicant for the certificate but a conclusion independently reached by the court or tribunal from whom the appeal is argued.  In this instance, the errors of law corrected in ADRVP No 1 arose as a direct consequence of the Athlete’s own arguments. 

    CONCLUSION

11. Although the question is finely balanced, we are inclined to grant a costs certificate.  The NAD Scheme at the time it was to be construed had not previously been considered and was complex.  There are, as we are informed by senior counsel for the Panel, features of the Australian arrangements which differ from those in other parts of the world where the WADA Code has been adopted – particularly in relation to the use and maintenance of the Register. The definition of ‘finding’ which gave rise to the challenge was unfortunate and on its face without broader consideration of the entire NAD Scheme could lead to the conclusion that the ordinary meaning of the word applied.  Finally it is the case that the legislature at least, perceived a need to clarify the NAD Scheme by the amendments which were made. 

12. The following orders are made:

    1.The non-publication order made by the Court on 14 March 2013 pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) be discharged.

    2.The respondent/cross-claimant pay the applicant/cross-respondent’s costs, to be taxed if not agreed. 

    3.A certificate be granted to the respondent/cross-claimant pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in terms of the attached certificate.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Cowdroy and McKerracher.

Associate: 

Dated:        20 November 2013

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 913 of 2012

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	ANTI-DOPING RULE VIOLATION PANEL Applicant/Cross-Respondent
AND:	XZTT Respondent/Cross-Claimant

CERTIFICATE UNDER FEDERAL PROCEEDINGS (COSTS) ACT 1981 (CTH)

JUDGES GRANTING THE CERTIFICATE:	NORTH, COWDROY AND MCKERRACHER JJ
DATE OF GRANT OF THE CERTIFICATE:	20 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT CERTIFIES THAT IN THE OPINION OF THE COURT it would be appropriate for the Attorney-General to authorise a payment to the respondent under Section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of:

(a)       the costs incurred by the respondent in relation to the appeal; and

(b)the costs incurred by the applicant in respect of the appeal that are required to be paid by the respondent in pursuance of the order of the Court of 20 November 2013.

DATE OF CERTIFICATE  20 November 2013

DEPUTY DISTRICT REGISTRAR