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ASADA v 34 Players and One Support Person

ASADA v 34 Players and One Support Person

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Case Copied 19 December 2014 67 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
ARBITRATION LIST

S CI 2014 06387

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY AUSTRALIAN FOOTBALL LEAGUE (ACN 004 155 211)	Applicants
v
34 PLAYERS AND ONE SUPPORT PERSON	Respondents

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 10, 11 & 12 December 2014
DATE OF JUDGMENT:	19 December 2014
CASE MAY BE CITED AS:	ASADA v 34 PLAYERS AND ONE SUPPORT PERSON
MEDIUM NEUTRAL CITATION:	[2014] VSC 635

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ARBITRATION – Application for subpoena requiring attendance for examination before AFL Anti-Doping Tribunal – Commercial Arbitration Act, s 27A – Supreme Court (Chapter II Arbitration Amendment) Rules 2014, r 9.14 - Supreme Court (General Civil Procedure) Rules 2005, O 42 - Characteristics of an arbitration - Re Carus-Wilson and Greene (1886) 18 QBD 7 – Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307 – Swintons Pty Ltd v Age Old Builders Pty Ltd [2005] VSCA 217 – Walkinshaw v Diniz [2000] 2 All ER (Comm) 237 – England and Wales Cricket Board v Kaneria [2013] EWHC 1074 (Comm) - Whether AFL Anti-Doping Tribunal is an arbitral tribunal – AFL Player Rules, rr 4.1, 4.9, 42.1, 42.3, 42.4, 42.7 – Whether AFL Anti-Doping Tribunal proceedings comprise domestic arbitration – Whether AFL Anti-Doping Tribunal proceedings comprise commercial arbitration – Nobes v Australian Cricket Board (Unreported, Supreme Court of Victoria, Marks J, 16 December 1991) – R v Judges of the Federal Court of Australia; Ex parte The Western Australian Football League (Incorporated) (1979) 143 CLR 190 – Adamson v New South Wales Rugby League Limited (1991) 31 FCR 242 – Hearn v O’Rourke (2003) 129 FCR 64.

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APPEARANCES:	Counsel	Solicitors
For the CEO of ASADA	Mr D. Star with Mr T. Goodwin	Australian Government Solicitor
For the AFL	Ms R. Enbom	Counsel for the AFL
For 32 of the 34 Players	Mr D. Grace QC Mr B. Ihle	Tony Hargraves
For 2 of the 34 Players	Mr S. Norton	Story & Associates
For Mr N. Alavi-Moghadam	Mr A. Rodbard-Bean with Mr B. Mason	Marsh & Maher

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Jurisdiction of the Court................................................................................................................... 2

Characteristics of an arbitration at common law........................................................................ 17

Application of principles with respect to the Tribunal............................................................. 22

It is a characteristic of arbitration that the parties should have a proper opportunity of presenting their case..................................................................................................... 26
It is a fundamental requirement of an arbitration that the arbitrators do not receive unilateral communications from the parties and disclose all communications with one party to the other party................................................................................................................................. 28
The hallmarks of an arbitral process are the provision of proper and proportionate procedures for the provision and for the receipt of evidence..................................................... 29
The agreement pursuant to which the process is, or is to be, carried on (“the procedural agreement”) must contemplate that the tribunal which carries on the process will make a decision which is binding on the parties to the procedural agreement................ 30

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 635
Decision Date: 19 December 2014

CaseChat Overview and Summary

The Australian Sports Anti-Doping Authority (ASADA) sought a subpoena for the attendance of 34 players and one support person for examination before the AFL Anti-Doping Tribunal. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the AFL Anti-Doping Tribunal constituted an arbitral tribunal under the Commercial Arbitration Act 1984, and whether the proceedings before it were domestic or commercial arbitration. The court was required to determine if the tribunal's proceedings were subject to the Supreme Court (Chapter II Arbitration Amendment) Rules 2014 and the Supreme Court (General Civil Procedure) Rules 2005.

The court examined the characteristics of an arbitration as established in the case of Re Carus-Wilson and Greene (1886) 18 QBD 7 and subsequent cases such as Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307 and Swintons Pty Ltd v Age Old Builders Pty Ltd [2005] VSCA 217. The court considered whether the AFL Anti-Doping Tribunal's proceedings were indeed arbitrations and if they constituted domestic or commercial arbitration. The court also looked at the AFL Player Rules, particularly rules 4.1, 4.9, 42.1, 42.3, 42.4, and 42.7, to determine the nature of the tribunal. Additionally, the court referenced the case of Nobes v Australian Cricket Board (Unreported, Supreme Court of Victoria, Marks J, 16 December 1991) and other cases such as R v Judges of the Federal Court of Australia; Ex parte The Western Australian Football League (Incorporated) (1979) 143 CLR 190 and Adamson v New South Wales Rugby League Limited (1991) 31 FCR 242 to assess the tribunal's jurisdiction.

The court concluded that the AFL Anti-Doping Tribunal was an arbitral tribunal and that the proceedings before it were indeed domestic arbitration. The court found that the tribunal's proceedings were not subject to the Supreme Court (Chapter II Arbitration Amendment) Rules 2014 or the Supreme Court (General Civil Procedure) Rules 2005. Consequently, the subpoenas were not issued. The court's decision was influenced by the nature of the AFL Anti-Doping Tribunal and the rules governing its proceedings.

No specific orders were made as the court determined that the subpoenas were not applicable to the AFL Anti-Doping Tribunal proceedings. The court's ruling upheld the independence and distinct nature of the tribunal's proceedings within the sports arbitration framework.

Orders