Hunter v Australian Football League
[2015] VSC 666
•26 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2015 01366
BETWEEN:
| HAL HUNTER | Plaintiff |
| – v – | |
| AUSTRALIAN FOOTBALL LEAGUE and | First Defendant |
| ESSENDON FOOTBALL CLUB | Second Defendant |
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JUDGE: | MUKHTAR AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 October 2015 |
DATE OF JUDGMENT: | 26 November 2015 |
CASE MAY BE CITED AS: | Hunter v Australian Football League and Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 666 |
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DISCOVERY― Pre action discovery of documents ― Purpose of rule ― Limits to entitlement ― Active involvement of legal practitioners in request for documents ― Volunteering of documents by prospective defendants ― Disavowal of possession of other documents ― Whether affidavit required from litigant to verify proper searches and absence of particular documents as sought ― Common documents sought against two parties ― Whether necessary to require discovery of same documents ― Basis for differentiation ― Remaining categories too wide ― Limited order made ― Supreme Court (General Civil Procedure Rules) 2015, r 32.05
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A R Moses SC (with Prof P Keyzer) | Schetzer Constantinou |
| For the First Defendant | Ms R L Enbom | DLA Piper Australia |
| For the Second Defendant | Mr A P Young SC | Perry Maddocks Trollope |
HIS HONOUR:
The plaintiff, Hal Hunter, was contracted to play Australian football with the second defendant the Essendon Football Club as a rookie[1] from December 2011, until he was de-listed in September 2013. The first defendant, the Australia Football League, is the controlling body of the national Australian football competition between AFL Clubs that are licensed to field teams in the AFL competition. Hal Hunter was at the Club when the now notorious controversy concerning the ‘supplements program’ was being administered by or within the Club to its players. In public, it was and it remains a stirring revelation in Australian sport and has had its repercussions.
[1]This is known to be a player who is included on the Rookie List of an AFL Club in accordance with AFL Player Rules. It is a means of possible recruitment to a club’s senior or Primary List.
Hal Hunter is contemplating suing the Club and the AFL for exposing him to risks to his health and wellbeing in undertaking the supplements program. But he needs more information before deciding whether he will. To that end, he wants information from them according to certain categories of documents. That is what this application is about.
Under procedural rules of this Court[2] if ― (a) he has reasonable cause to believe that he has, or may have, the right to obtain relief in the Court from the AFL or the Club; and if (b) after making reasonable enquiries he does not have sufficient information to enable him to decide whether to or not to bring a claim; and if (c) he has reasonable cause to believe that the AFL or the Club has, or is likely to have, any document relating to the question whether he has the right to bring a claim; and if (d) inspection of the document will assist him to make the decision whether to bring a claim in Court ― then the Court has the discretion to order the Club and AFL to give discovery of documents to him for that purpose.
[2]See rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015.
In legal parlance, to give discovery means requiring the Club and the AFL to say on oath whether they have particular documents in their possession, custody or power. If they say they do, then production of the documents for inspection usually follows as the next step without the Court’s intervention unless as a separate and substantive matter the law protects the document from disclosure.
The power to order pre-action discovery is exercised to do procedural justice when it is called for. The purpose of the rule was stated concisely in Schmidt v Won[3] in this way:
The rule, first introduced in 1986, should be construed benevolently because its intention was both to assist claimants without sufficient, precise information to launch an action and to prevent the bringing of speculative suits. Applications, however, must not be based upon “mere hunches” or such flimsy foundations as will not satisfy the requirement that “reasonable cause” should be shown for the necessary belief. That is not to say, however, that some form of “fishing” enquiry is not justified under the rule: indeed it is the very purpose of the rule to permit an enquiry of this kind, if the required conditions are made out.
[3][1998] 3 VR 435 [445].
There are numerous cases in this Court concerning the availability of the rule, which, in the way this case was conducted, did not have to be examined closely.[4] It is sufficient to say for introductory purposes that documents are a person’s property and the rule does not offer a licence, before a case is even started, to invasively seek documents to see if there is a case to be made against that person. The rule requires as a first step that the applicant show he has reasonable grounds to believe that he has, or might have, the right to obtain relief. For that first step, he is not required to show precisely what cause of action he may have or to show a prima facie case. Rather, he has to show the objective facts on the basis of which he reasonably believes that he may ― note, may ― have a right to obtain relief. That way the rule is to be seen as the court lending its processes to help right a possible wrong. And he must also show that he needs the documents to decide whether to sue. For practical purposes that means, faithful to procedural law including the Civil Procedure Act, having a tenable basis for making an allegation in a statement of claim, with sufficient particularity. But an order ought not be made if the applicant already has sufficient information to decide whether or not to start an action. That is, the rule cannot be used to obtain material to verify a belief that the applicant has a right to relief or to otherwise ascertain the strength of the case for a right to relief, or to be comforted in taking a decision whether or not to sue.[5]
[4]The authorities are conveniently summarised by Derham AsJ in Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust [2014] VSC 481. Other authorities are identified in the plaintiff’s written submissions.
[5]See the authorities referred to by Gardiner AsJ in Knowledge Partners Pty Ltd v Kapish Pty Ltd [2009] VSC 664.
The difficulty in these applications can be the perceived sense of injustice in compelling someone to hand over documents to equip a potential adversary to fish around to see if a case can be advanced. So much depends on the circumstances, the relationship of the parties, the nature of the case being contemplated, and what the applicant already knows or can allege. However, if the prerequisites of the rule are made out, and benefit can be shown, then ordinarily a Court will be disposed to make an order, assuming the documents sought are shown to exist or may be supposed to exist, and the net is not thrown too wide.[6]
[6]See Australian Football League v Stadium Operations Ltd [2009] VSC 264, [1]–[5].
Pre-action discovery must be distinguished from ordinary discovery in litigation which is an entitlement. Once a case is formulated with allegations that have a tenable basis, and an action is started, then Hal Hunter, like any plaintiff, can pursue energetically the ordinary right to discovery of documents that are relevant to the case as alleged as part of the pre-trial process of investigating facts relevant to allegations made. That is an important distinction to help understand the purview of the procedural rule at play here and the limits of its availability. Once a case starts then the laws of discovery, relevant to the allegations as made, and concerned with helping to get to the facts of the matter, become activated against all parties.
The basis of the application here
In this case, the assertion of a reasonable cause to believe that the player Hal Hunter has, or may have, the right to obtain relief from the Club or the AFL comes from the player’s lawyer. He has sworn an affidavit saying where relevant[7] ―
[7]See the affidavit of J Constantinou sworn 23 March 2013, para 10.
…
6.During the period of the plaintiff’s employment with Essendon Football Club the Essendon Football Club implemented a scientifically pioneering program relating to the administration of supplements to players (supplements program).
7.This program exposed players, including the plaintiff, to significant risks to their health, safety and general wellbeing as well as the risk of using prohibited substances.
8.Senior members of the Essendon Football Club may have been involved in or should have been aware of the supplements program.
9.Medical staff employed or retained by the Essendon Football Club may have been involved in or should have been aware of the supplements program.
10.The plaintiff has, or may have, the right to obtain relief in this Court from the Essendon Football Club including relief for breach of contract and negligence.
11.The plaintiff has, or may have, the right to obtain relief in this Court from the Australian Football League including relief for breach of contract and negligence.
12.The plaintiff has, or may have, the right to obtain relief in this Court from persons employed or engaged by Essendon Football Club including relief for negligence.
It is important to see that as there expressed, the player is already contending he was exposed to significant risks to his health and safety under the supplements program. As there expressed, it seems the information he seeks concerns a possible allegation that senior members of the Club or medical staff may have been involved in, or should have been aware of, the supplements program.
This application was preceded by much correspondence between lawyers acting for Hunter, the Club and the AFL. It started in October last year. His lawyers pressed for production of eleven categories of documents as were in the possession, custody or power of the Club and the AFL, under threat of a Court application to compel discovery. Those categories are reproduced in the summons by which this application was made and decided. They are −
(a) the applicable Collective Bargaining Agreement which applied to the plaintiff;
(b) the statement of grounds brought by the AFL against the Club;
(c) the deed of settlement between the AFL and the Club;
(d) the transcript of the 16 April 2013 interview of Mr James Hird (the senior coach at the Club at the time) by ASADA[8] and representatives of the AFL;
[8]The Australian Sports Anti-Doping Authority.
(e) the personnel file of the plaintiff, including but not limited to the delisting of the plaintiff;
(f) any medical records of the plaintiff which are held by the Club, including but not limited to blood tests;
(g) any records which relate to the provision of supplements to the plaintiff, including but not limited to supplements administered by HyperMed and Skinovate or any other offsite facilities;
(h) any contract or agreement between the Club and Mr Stephen Dank, or any entity related to Mr Stephen Dank, during the period 1 January 2010 to 31 December 2012;
(i) any records relating to payments made by the Club to Mr Stephen Dank, or any entity related to Mr Stephen Dank, during the period 1 January 2011 to 31 January 2013;
(j) any documents between the Club and Mr Stephen Dank or any entity related to Mr Stephen Dan concerning the administering of AOD-9604 to employees at the Club; and
(k) any documents between the second defendant and Mr Stephen Dank or any entity related to Mr Stephen Dank concerning the administering of Thymosin Beta-4 (also known as ‘TB4’) to employees at Club.
In the interaction, either the lawyers for the Club or the AFL have over time produced documents that the producing party says satisfies category (a), (b), (c), (e), (f) and (g). A differentiation is required here. Category (a), (b) and (c) by nature and description concern the AFL, not the Club, and it is the AFL that has produced those. Documents (e) and (f) by nature or description concern the Club and the player, and it is the Club that has produced those. The Club has also produced documents answering category (g) which speaks of ‘records which relate to the provision of supplements to the plaintiff…’ That language tends to suggest records of those administering the program at the Club, thus not concerning the AFL. Both the Club and the AFL acknowledge having the transcript of an interview on 16 April 2013 between ASADA and James Hird which is category (e) but say the transcript will not be produced on the grounds of legal professional privilege. That is not an issue for this application.
The remaining four categories (h) to (k) all collectively concern one Stephen Dank who has been identified frequently in the mass media, although there is nothing in evidence about him in this application. Mr Moses, Senior Counsel for the player concedes necessarily that the reference in (j) and (k) to administering supplements to employees of the Club is too wide and ought be reduced to say: the administering of AOD-9604 to the plaintiff and the administering of Thymosin Beta-4 (also known as ‘TB4’) to the plaintiff. Each of those categories, it is important to see, refers to documents and records as between the Club and Mr Dank.
In serious correspondence, the Club said it did not have documents as described in (h) to (k) concerning Mr Dank. It said in any case such documents are not needed to enable the player to decide whether or not to bring a claim. As far as the AFL was concerned on those four categories, it contended in serious correspondence that the player’s pursuit of documents as described was intolerably broad, and that documents concerning relations, contractual or otherwise, between Mr Dank and the Club were by nature obviously a matter between the Club and him, and not the AFL.
But, as I will elaborate later, the AFL acknowledged having an electronic database of documents obtained in an investigation it conducted with ASADA commencing in February 2013 into the supplements program at the Club in the 2012 season. The AFL’s position is this: if the Court thinks the pre-action discovery rule is attracted on the evidence, then the breadth of the discovery ought be curtailed by reducing categories (g), (j) and (k) to those parts of any document obtained by the AFL during its investigation with ASADA that refer to Hunter by name.
With that counterpoise from the Club and the AFL the issues started crystallizing but come the application, still seemed at large. An analysis to see the issues cannot be made or properly understood without an exposé of the build up to this application which went for almost a year. It went between the time that a grievance letter was sent (October 2014) and the filing of the summons seeking the relief (28 August 2015), and up to hearing. The forensic presentation of this application sought to portray the difficulties and apprehensions that the player’s lawyers say they encountered in pursuing the documents, and to show that all reasonable enquiries have been made. I am bound to give an expurgated account of the correspondence and the interaction that occurred right up to the hearing of this application.
The build up
In October last year, the player’s lawyers wrote to the Club and the AFL to state a grievance, under a Collective Bargaining Agreement, that during his period of employment as a footballer, the Club ‘implemented a scientifically pioneering program relating to the administration of supplements to players’ which exposed them ‘to significant risks to their health, safety and general wellbeing as well as the risk of using prohibited substances’. The grievance asserted that the implementation of the supplements program by the Club was a breach of the playing contract as between player and club; a breach of the duty to provide a safe place in which to work; a breach of the duty to ensure other employees engaged are competent to perform the work for which they are engaged; and a breach of the duty to provide a safe system of work. So, the player was asserting ― not saying maybe ― that a wrong occurred in the context of the employer employee relationship.
As against the AFL (not his employer), the grievance letter said:
The AFL, as the controlling body of the national Australian Football Competition, failed to take steps or put in place appropriate measures to:
(a)properly ensure the health, safety and general wellbeing of Mr Hunter as a player in the Australian Football Competition; and
(b)to properly ensure Essendon Football Club, as a club in the Australian Football Competition, did not breach the obligations it owed to Mr Hunter.
The grievance letter acknowledged that Hunter’s delisting as a player and the ending of his contractual relationship with the Club meant that it was no longer open to him to use a ‘Grievance Procedure’ under clause 43 of the Collective Bargaining Agreement 2012-2016. However, the letter said ‘This more informal process would be beneficial to all parties.’ By this informal process as instigated, the letter then made a request for the eleven categories of documents that I have already listed.
Much correspondence followed, which is exhibited in three affidavits sworn by the player’s lawyer Mr James Constantinou.[9] Soon after the grievance letter, the AFL requested a meeting with the player’s lawyers. But, before any meeting, the player’s lawyers pressed to know whether the AFL and the Club were willing to provide any documents. The lawyers were then engaged in exchanges until late November 2014. The AFL’s position was to get a better understanding of what the plaintiff wanted to achieve. I interpret that to mean putting the question of documents aside for the moment and to first get an understanding of the player’s real concerns and what redress he wanted, at least from the AFL.
[9]See affidavits sworn 23 March 2015, 27 August 2015 and 28 October 2015.
Come 14 November 2014, the AFL was still dissatisfied with not receiving an outline of the player’s concerns and what he wanted, except for receiving a demand for documents. Until then the AFL said ‘most documents you seek are confidential therefore will not be provided at this stage’.[10] The response given was ‘my client has sought copies of documentation to ascertain the risks to his health and safety as a result of a program that was imposed on him by his employer’[11] yet as I have already noted, the grievance as expressed at the outset has the player’s lawyers already asserting as a fact that the supplements program posed risks to his health.
[10]See Constantinou’s first affidavit, Exhibit JC–8.
[11]See Constantinou’s first affidavit, Exhibit JC–9.
Further e-mail correspondence occurred which had the AFL encouraging the player to contact the AFL Players’ Association and make use of the medical monitoring program which was being conducted by an independent doctor for the benefit of current or former players of the Club. The AFL also directed his lawyers to publicly available documents.
That takes us to 27 March 2015 when the writ was filed.[12] The statement of claim sought the same eleven categories of documents with the same alphabetical references as used in the correspondence as I have set out in paragraph 9 above. I shall stay with those categories for ease of narration.
[12]The originating process was, erroneously, a writ seeking discovery under r 32.05. The rules prescribe an originating motion. The step taken by the plaintiff to eventually bring the matter to Court, under the irregular writ was the filing and service of a summons dated 28 August 2015. To regularise procedure, I made an order treating the writ as an originating motion.
On 10 April 2015 the AFL’s external lawyers wrote to the plaintiff’s lawyers stating the AFL’s position on each of the 11 documents as sought. The letter enclosed a copy of category (a), the Collective Bargaining Agreement 2012-2016; category (b), the statement of grounds or the Notices of Charge against the Club and James Hird; and category (c), the deed of settlement between the AFL and the Club.
By letter dated 22 April, the Club’s external lawyers gave their response to the claim by letter.[13] It challenged whether the player truly could meet the first prerequisite of showing ‘reasonable cause to believe that the applicant has or may have the right to obtain relief’. In essence, the Club said there was no evidence put forward on how and what way the supplements program exposed players to significant risks to health, safety and general wellbeing from which to then contend that pre-action discovery should be given. It is true to say there was no evidence, and it remains the case. The Club also contended it was not legitimate to seek pre-action discovery in order to find a cause of action; but rather to determine whether the player should commence a court case for a cause of action already identified. That is not quite right. A hunch or speculation is not enough. But it is not necessary to show a cause of action or a prima facie case. Facts must be put forward to show a reason to believe he might have a right to obtain relief.
[13]See Constantinou’s second affidavit, Exhibit JC–4 and JC–5.
Pausing there, this was something which I tried to agitate at the outset of the hearing with Senior Counsel for the player. As I saw it, Mr Hunter was presumably already in a position to allege, from his own personal involvement, the circumstances in which the supplements program was offered to him and the players; what they were told about the program and the supplements; any evident role of the Club and the coach and the staff; how the program was administered to his body; and what if anything was said to him about the substances to be administered; and what if anything was asked or said or not said about possible medical risks or side effects and whether there were prohibited substances involved. It does not seem the player needs pre-trial discovery to make those allegations. The next step, I would suppose, is an allegation of how the program was administered to him. It does not seem he needs pre-trial discovery to allege general facts about what happened to him but depending on how the program was administered, discovery would give precise information about dates, substances, dosages, or testing, to allege that part of a case. Thought would then turn, I would suppose, to a conception by lawyers of the basis of liability, be it according to the employment relationship, tort or contract, or perhaps by recourse to legislation concerning workplace responsibilities or duties on an employer. That is not a matter for pre-trial discovery.
It seems to me, as I would see a statement of claim, that the remaining components of any possible case would concern first, the allegation of breach of an obligation or duty owed to him to not expose him something threatening or damaging his health and well-being or medical condition. The next legal step ― and I emphasise I am looking at this conceptually for that is all that is required for present purposes ― is to allege that the program exposed him to risks or dangers in breach of a duty of care and a co-extensive duty in contract and any statutory duties on an employer. If the action is in tort, damages are the gist of the action. Hovering around these considerations is, as the correspondence agitated, questions of the provisions of the Accident Compensation Act for workplace injuries such as serious injury certificates and other matters which need not be addressed here.
None of the categories of documents, in terms at least, concern risks or known risks of the supplements program. They are predominantly couched in terms of the administering of the supplements. Nowhere do I see a within the categories a request expressly along the lines “I want documents to show the risks of the supplements program and what you the Club, my employer with duties to me, knew about the risks”. From what I have seen in the materials, the player was already asserting as a fact that there were risks.
As for the AFL, one can only suppose the contemplated claim to be that as the governing body it knew about the program at the time and ought be held responsible for not intervening or taking some other preventative or investigative conduct in the interests of the players, particularly if there was a question of prohibited substances. But that could only be at the relevant time which was before or in the 2012 season. That would be a wholly different case to that being brought as between employer and employee, and based upon a different content to a duty of care. As the evidence stands the player cannot say he has reason to believe the AFL did know or might have known about those things.
Thus, as was agitated in that correspondence, there were questions in my mind about the ambit of the claim for documents, and the evidence in support as raised by the Club. But, in the correspondence, the Club’s position was ‘we believe it would be more practical for us to attempt to either resolve the issues between ourselves or narrow the issues that need to be tried and tested before the Court’.[14] The Club acknowledged there were documents within category (e) (the player’s personnel file) and category (f) (the player’s medical records). Those documents were produced on 22 April 2015 and 10 June 2015.[15]
[14]See Constantinou’s second affidavit Exhibit JC–5, p 3.
[15]See Constantinou’s second affidavit Exhibit JC– 4 and 7.
On 9 July 2015 the Club’s lawyers ceased to act. In correspondence directly to the Club on 21 July 2015 the plaintiff’s lawyers said they were not satisfied with the medical records produced.[16] The letter is significant. It sought production of the following documents:
[16]See Constantinou’s second affidavit Exhibit JC–9.
·Records of any and all injections, medical interventions, supplements or treatments, administered by the Club or its employees and agents to Hal;
·Records of all treatments (including injections) given to Hal by Steven Dank;
·Records of all treatments (including injections) given to Hal at Skinovate;
·Records of all treatments (including injections) given to Hal at HyperMed, including any administered by Mal Hooper
·Records of all blood tests requested by Dank;
·Copies of any consent forms associated with any of these supplements, injections, or other treatments and medical interventions.
Without limiting the scope of this request, the documents to be produced should include:
a.The Powerpoint presentation between February and March 2012 to the playing group in support of the confidential supplements program which the then senior coach James Hird and senior players vouched for, at which Dank and senior coaches were present and which players were assured was ASADA and WADA compliant;
b.The consent forms for those supplements that were signed at the presentation in a. above;
c.Between February and March 2012, the consent forms signed by our client for Tribulus and any other supplements;
d.Substances administered between 7 February 2012 and April 2012 by Dank and via an IV drip at an offsite clinic known as Skinovate;
e.Between 7 February 2012 and April 2012 during our client’s attendance at HyperMed Clinic at your clubs request during which he received injected treatments from a Mal Hooper;
f.Between April and May 2012 blood test undertaken on our client at the request of Dank and conducted at your Club.
None of these specific requests concern knowledge of medical risk or side effects to the player’s health and safety. They concern the administering of the supplements, consonant with categories (g) (j) and (k).
In response, on 11 August 2015 the new lawyers for the Club gave over four documents, namely:[17]
[17]See Constantinou’s second affidavit Exhibit JC–11.
1.Essendon Football Club Supplements Report Season 2012 (extract related to Hal Hunter – 2pp);
2. Individual Supplements documentation – VFL, undated (4pp);
3.Hyper Med Pty Ltd – Essendon Player Summary, 12 September 2012 (1 page); and
4.Patient Information/Informed Consent Forms (one signed and dated 8 February 2012 and two unsigned and dated – 6pp).
As such documents had not been given by the Club in earlier exchanges, the player’s lawyers apprehended they were not getting proper disclosure. They then required an affidavit from the Club explaining what searches were conducted; who conducted the searches; if no search was conducted in relation to a particular category why that was so; and what documents were previously held in the Club’s possession.[18] They received an unequivocal response from the Club’s lawyers that all relevant documents had been produced.[19]
[18]See Constantinou’s second affidavit Exhibit JC–12.
[19]See Constantinou’s second affidavit Exhibit JC–13.
This apprehension spread to the AFL. Having received the additional documents from the Club, the plaintiff’s lawyers then started pressing whether those same documents were also in the possession of the AFL, and if so, why they had not been produced earlier.[20] This was the beginning of another issue: is the player entitled to preliminary discovery of documents from the AFL that had been produced by the Club anyway? As far as the AFL was concerned the discovery request had been left off as at 10 April 2015 when the AFL’s lawyers gave the documents as sought in paragraph (a), (b) and (c) because apart from the privileged (d), the other categories all concerned the Club.
[20]See Constantinou’s second affidavit Exhibit JC–2.
Come August 2015 the plaintiff was pressing the AFL for the documents in categories (d) to (k). I shall pass over the response as it comes to be surpassed by subsequent events but it is enough to make reference to a statement from the AFL’s lawyer which emerged again on this hearing:[21]
… I am at a loss to understand the point which you are making. You have already obtained those documents from the second defendant. Why do you need additional copies from my client? I remind you this is preliminary discovery, not a full-scale discovery war. I also remind you of the provisions of the Civil Procedure Act 2010, and the need to contain costs. Asking us to search for documents which you already have seems inconsistent with that Act’s intention.
[21]See Constantinou’s second affidavit Exhibit JC–3.
The plaintiff then filed its summons on 28 August 2015. More correspondence followed between the parties which I shall not reproduce. The AFL restated its position as follows:[22]
[22]See Constantinou’s third affidavit Exhibit JC–2.
(a) the AFL had already given the documents under categories (a), (b) and (c);
(b) the document in category (d) existed but was privileged from production;
(c) documents in categories (e) and (f) had been given by the Club;
(d) duplication was wasteful and the plaintiff must differentiate between which documents properly (that is, pertinently) to be sought from the Club and properly to be sought from the AFL; and
(e) before a court hearing, the AFL’s lawyers wished to sit down with the plaintiff’s lawyers and the Club’s lawyers and discuss a way forward that is:
I also think it would be of benefit if we could discuss the categories of documents which you seek discovery of, from whom those documents ought be sought, and whether there are reasons why some documents are unable to be produced for whatever reason.
Again noting the Civil Procedure Act 2010, I feel confident that whichever judge is assigned to hear this application would appreciate any efforts that the parties have made to attempt to resolve or narrow the issues in dispute before taking up the court’s time.
A meeting occurred on 13 October 2015. Before then, the AFL’s lawyers sent an email dated 6 October 2015 to the plaintiff’s lawyers which introduced a new document:
As previously discussed, the AFL’s Integrity Team has run a search of the AFL’s data base used in connection with the ASADA investigation, and has returned the attached list which outlines all of the documents that the AFL holds that reference Hal Hunter.
This list is provided on a strictly “without prejudice” basis in the hope that it assists the parties to work through any preliminary discovery issues.[23]
[23]The document was tendered separately in Court as Exhibit A.
Attached to the e-mail was a three page table (‘the Table’) which on my count isolates 38 titles to documents, a description of some of them (the only descriptor is ‘pathology report’) and a computer identification of the document. The giving of the Table led the plaintiff’s lawyers to state a concern that it should have been provided earlier and how they were concerned that the AFL had been deficient in their representations concerning discovery.
This takes us to the hearing of the application before me on 29 October 2015.
On the day before the hearing, an affidavit was sworn on behalf of the Club by its external lawyer, David Leslie Maddocks and on behalf of the AFL by its external lawyer Kieran John O’Brien. Thus, irrespective of the traffic of correspondence over much time, their positions were now being verified by sworn statements. There was no cross examination of these deponents. I shall deal separately with each remaining category in turn as against the Club and the AFL. The Court can now ignore categories (a), (b) and (c) as they refer to specific documents which have been provided to the player’s lawyers.
Category (d)
This seeks a transcript of an interview between ASADA, James Hird and AFL representatives. Mr Maddocks swears has been informed by Mr Michael Abrahams who is the Manager – Legal, Integrity and Compliance (‘the Club’s Manager’), and he believes, that the Club was given a copy of the transcript from the AFL to prepare for legal proceedings involving the Club that were on foot or were being anticipated. Thus, he said, there would be an objection to production of the transcript on the grounds of legal professional privilege. Mr Maddocks also says ASADA and the AFL were responsible for the interview and caused the transcript to come into being and is thus the proper party to give discovery.
I think that is a valid position to take. Discovery of the transcript of the investigative interview is best left to the AFL as investigator and originator. In any case, I see no reason why two parties should be made to produce the same document. It is unnecessary and would not be countenanced in ordinary discovery. Sometimes in commercial litigation there can be a forensic purpose in showing that two parties have possession of the same document and something may turn on the timing of possession. But that has not been shown or submitted to be a consideration on this, a pre-action discovery application. The transcript is dated 16 April 2013, after the 2012 playing season.
Category (e)
This is the Club’s personnel file on the player. Mr Maddocks swears that the Club gave the personnel file to the plaintiff’s lawyer on 22 April 2015. He swears that has been informed by the Club’s Manager and he believes that the Club does not have any other personnel file for the player.
In my view that ought to be the end of that matter for present purposes. There is no reasonable cause to believe, under rule 32.05(c), that any more documents in this category exist. Accordingly, there is no basis for an order for this category. And, I would add, I see no reason why the AFL should be made to give discovery of the same document category if it has it. This is a personnel file, which is by description, nature and provenance a Club document.
Category (f)
This is the Club’s medical files for Hal Hunter. Mr Maddocks swears that the medical records were given over with the letter of 10 June 2015. He swears he has been informed by the Club’s Manager, and he believes, that the Club does not have any other medical records for the player.
As for category (e), there is no reasonable cause to believe, under rule 32.05(c), that any more documents in this category exist and therefore no justification for an order. Accordingly, there is no basis for an order for this category. And I see no reason why the AFL should be made to give discovery of the same document if it has it. It is by description, nature and provenance a Club document.
Category (g)
This concerns records ‘which relate to’ supplements administered to the plaintiff. Although common, the expression ‘relate to’ can be troublesome in the adversarial field of subpoenas and discovery because of its width. To ask for ‘records’ connotes naturally I think an account or a recording of an event, in the present context, a record of the administration of a supplement to the player. Consistently with that, in the correspondence it was put precisely and better in this way by the plaintiff’s lawyers: ‘Records of any and all injections, medical interventions, supplements or treatments, administered by the Club or its employees and agents to Hal’.[24]
[24]See Constantinou’s second affidavit, Exhibit JC–9.
Mr Maddocks swears that under cover of a letter dated 11 August 2015 the Club gave over copies of its records showing the provision of supplements to the player. He swears he has been informed by the Club’s Manager, and he believes, that it does not have any other ‘contemporaneous records’ of the provision or administration of supplements to the player. No submission was made on behalf of the player about the nuance of ‘contemporaneous’ so I say no more about it except to say I interpret as saying no other records were made throughout the administration of the program, which is what is relevant for present purposes.
As it is sworn that no such documents exist, there is no reasonable cause to believe, under rule 32.05(c), that any more documents in this category (g) exist. Therefore there are no grounds for an order against the Club. Although by nature and provenance it seems to be a Club document, I would earmark category (g) as permeating into the AFL’s discovery position as result of its own joint investigations with ASADA into the supplements program, to which I shall come later.
Categories (h) and (i)
Categories (h) and (i) are expressed to isolate the contractual relationship between the Club and Mr Dank.
Mr Maddocks swears he is informed by the Club’s Manager, and he believes, that the Club does not have any executed agreement between itself and Mr Dank or any entity related to him as sought in 2(h). The word ‘executed’ attracts attention, to suggest there might be an unexecuted agreement to inform the relationship in some way. But no submission was made on behalf of the player about that nuance so I say no more about it.
The Club submits anyway that an agreement, executed or not, is not information necessary to enable the player to decide whether to commence any proceeding. The administration of the program (but perhaps not its details) is a given allegeable fact for the purposes of a proposed claim, as is the presence of Dank. As I exposed at the outset, the stated object of the pursuit of documents was to assist in determining whether the Club and its medical staff knew of the program. The correspondence from the player’s lawyers specifically asked for the Powerpoint presentation between February and March 2012 to the playing group in support of the confidential supplements program which the then senior coach James Hird and senior players vouched for, and at which Dank and senior coaches were present and which players were assured was ASADA and WADA compliant.[25] That request is self-evidently based on instructions presumably from the player.
[25]See paragraph 31 above.
If there was nothing else, I think any contract made with Mr Dank could well inform the question whether the Club knew of the program. But there appear to be facts, actual and circumstantial, already well known about the relationship between the Club and Dank. As I see it, and keeping in mind the purpose of this rule, I think it is right for the Club to say an agreement, executed or not, is not information necessary to enable the player to decide whether to commence any proceeding. The evidence is that no such agreement was executed. Anything less than an executed agreement to show the creation of legal relations or understandings between the Club and Mr Dank may be something to pursue in ordinary discovery, if the player sues. It will depend on the allegations made. Accordingly, I see no grounds for any order for this category.
As I understood Mr Moses’ submission, this category together with (i) and (j) were really directed at the AFL as going to the issue whether the AFL knew about the supplements program at the time, but did not do anything about it. I shall come to that later.
As for category (i), Mr Maddock’s affidavit makes the argument that no document that the Club may have in its possession relating to any payment to Mr Dank is or could be needed by the player to decide whether he has sufficient information to commence any proceeding. I think the mere fact of a payment, of itself, does not show what the relationship was between the Club and Mr Dank. It is a forensic addition to an allegation that the Club knew what Dank was doing, for which I think there appear to be facts already known on that subject as part of the question whether a decision to sue can be made. Accordingly, I think this category (i) falls collaterally with (h).
Categories (j) and (k)
As for categories (j) and (k), Mr Maddocks swears he is informed by the Club’s Manager, and he believes, the Club has no such documents. As expressed, these two categories ask for documents (passing) between the Club and Dank concerning the administering of the supplements. Mr Maddocks deals with the category by swearing that he is informed by the Club’s Manager and he believes, that the Club ‘does not have in its possession, custody or power any document, that passed to or from Mr Dank or otherwise, that records, evidences or otherwise relates to any administration to Mr Hunter of the substance AOD-9604’. He makes the same unequivocal statement for Thymosin Beta-4.
On that evidence, there is no reasonable cause to believe, under rule 32.05(c), that any more documents in this category (j) and (k) exist. Although by description it is a Club document, this is another category which permeates into the AFL’s position as result of its own joint investigations with ASADA into the program to which I shall come later.
The Club’s grounds of resistance did not rest there. It also pitched a case overall to say the Court’s discretion to make an order did not arise under the cumulative requirements of rule 32.05. First, Mr Young of counsel for the Club seized on the statement made by the plaintiff’s lawyer on affidavit that ‘The plaintiff has, or may have, the right to obtain relief…’[26] It was submitted that to say the plaintiff has the right to obtain relief shows there was no need for pre-action discovery because there was already a decision to sue. I reject that submission. It is true to say that evidence that an applicant has decided to commence proceedings means the application must fail.[27] But read fairly, the deponent was doing no more than repeating the very same phrase ‘has or may have the right to obtain relief in the Court’ as appears in rule 32.05.
[26]See the affidavit of J Constantinou sworn 23 March 2015, para 12.
[27]See Beston ParksManagement Pty Ltd v Sexton [2008] VSC 392 [56].
Secondly, Mr Young (and later Ms Enbom of counsel for the AFL) submitted that much documentation had been produced in the lead up to this application which, he asserted, was sufficient to enable the player to decide whether proceedings could be commenced against the Club and the AFL. Put another way, in a case where there was much documentation produced over time, nowhere was there a statement that the documents as provided over time were examined by the player’s lawyers and still did not equip the player with sufficient information to assist in making the decision whether or not to sue. Therefore, it was submitted that the second limb in rule 32.05(b) was not satisfied.
The submission is factually correct. But, I do not think that the absence of a statement of still not having sufficient information of itself it disqualifies or discredits the application. It would enhance any application to demonstrate objectively or analytically that despite the giving of documents, and the known facts, there was still insufficient information to enable a decision to be made and to the expose exactly what was needed. But, under the rule, it is on principle an objective question for the Court whether an applicant has sufficient information to determine whether to commence proceedings, and the applicant’s own assertion that it does not is neither determinative nor strictly necessary.[28]
[28]See Beston Parks [81].
Thus, as against the Club, it disposes of the application to say that there is no point in making any order. Documents as sought have been handed over or, it is sworn, they do not exist. There is no shown basis for saying that documents exist which have not been handed over by the Club. I see no injustice.
For myself I considered whether I could quell the controversy by requiring the Club’s Manager himself to swear an affidavit verifying the instructions given to the Club’s solicitor Mr Maddocks. This resembles the application made in paragraph 3 of the summons which seeks an order that the Club and the AFL swear an affidavit by a proper officer stating for each category of documents what searches were conducted and by whom and other matters so as to put him to the test of diligence. But that order was sought as ancillary to an order for discovery, which I have decided ought not to be made against the Club. Even so, I do not think such an order is called for to verify all that has been said on behalf of the Club about possession of documents. The player’s lawyers instigated an informal process. Allowing for the mutual apprehensions or defensiveness that arises in these adversarial situations, the matter evolved to show a real engagement by the Club and the AFL to satisfy the request and to avoid litigation. I have no reason to think the unequivocal statements in the correspondence was not based on a proper understanding of the discovery rules or the significance of representations in writing whether documents exist. Just because the Club’s new solicitors produced documents that had not been produced beforehand does not mean assurances from the Club or the AFL about complete discovery are not to be trusted. Experience has it that in litigation actual or anticipated, documents do turn up. That does not mean they have been withheld. Furthermore, discovery applications can become laborious and expensive. Courts depend on practitioners looking to quell disputes to some extent beforehand with reliable statements of what documents they have and do not have. As it turned out the lawyers for the Club and the AFL did swear affidavits to verify that which had been previously stated. I see no injustice in not requiring any more verification.
I turn now to the evidence of the AFL.
The position of the AFL
The AFL’s solicitor, Mr Kieren John O’Brien swore an affidavit of 28 October 2015. He says the following, based upon information from Mr Simon Clark the AFL’s Deputy General Counsel (‘Internal Counsel’), which information he believes to be true.
Several years ago the Australian Crime Commission conducted an investigation into the use of performance enhancing drugs in the AFL and the National Rugby League. As a result of information given by the ACC to the AFL and ASADA, in early February 2013 ASADA and the AFL commenced an investigation into the supplements program at the Club in the 2012 season. The AFL used its compulsory powers to interview players and others such as the coach James Hird. That was done with the involvement of ASADA. The AFL also used its powers to obtain documents and computer records from the Club. It retained one of the largest consulting companies in Australia, Deloitte, to search for and obtain documents from the Club’s premises. The AFL has created an electronic data base to store all the documents obtained during the investigation. The data base is said to hold 3,229 separate documents. Many of the documents are voluminous. A substantial number of the documents came from the Club.
The AFL has conducted a search of the data base for documents that made references to ‘Hal’ within ten words of ‘Hunter’. That search produced documents comprising about 12 lever arch folders. A separate search of the data base using only ‘Hunter’ produced an additional 24 documents, mainly injury lists. Electronic searches have isolated pages that concern Hal Hunter. There are 140 pages which refer to both him and other players at Essendon which therefore would require redaction. Electronic searches were also conducted for the presence of the words or expressions ‘Dank’ and ‘AOD-9604’ and ‘AOD’ ‘Thymosin Beta-4’ and ‘Thymosin’ and ‘TB4’ and ‘HyperMed’ and ‘Skinovate’. They produced numerous documents. On questioning from the Bench, counsel for the AFL stated that the three page spread sheet attached to Mr O’Brian’s email of 6 October 2015 (referred to in paragraph 32 above) is a manifest of the documents in the AFL database concerning the supplements program that contain a reference to Hal Hunter. As I see it, such documents come within category (g) or (on a wide view) possibly (j) and (k). But I think category (g) covers the field anyway.
As Ms Enbom of counsel emphasised, the AFL’s investigation was after the 2012 season. Thus, what the AFL has on its data base is historical. A conception of a case against the AFL for failing as the controlling body to intervene in the implementation of the supplements program, presupposes knowledge by the AFL at or before the time that the Club was administering the program. If the contemplated case is that at the time of the supplements program the AFL knew about it, or had reason to conduct some checks and audits, then that calls for a radically different casting of an application and some different considerations concerning the evidence needed to show ‘reason to believe’ that the player may have a claim against the AFL.
But as it is, the case for which the player seeks pre action discovery against the AFL is that, as the controlling body of the national Australian Football Competition, it failed to take steps or put in place appropriate measures to properly ensure the health, safety and general wellbeing of Mr Hunter as a player in the Australian Football Competition; and to properly ensure Essendon Football Club, as a club in the Australian Football Competition, did not breach the obligations it owed to Mr Hunter. But the AFL database is made up of documents in an investigation into the supplements program after the fact. Thus there is no point making an order for category (h) and (i), which concerns any contract with and payment to Dank. The mere possession by the AFL of a contract (which the Club denies exists) cannot show the AFL knew about the contract throughout the currency of the supplements program. This is the problem with the application. There are distinct proposed causes of action yet the application bundles the Club and the AFL together.
The AFL’s database is naturally of prime interest. It is the product of an investigation which involved the exercise of powers over the Club and the use of professional help in that exercise, albeit after the event. One would expect it to be well prepared and reliable, on something that really mattered. On the day before the hearing of this application, a letter from the AFL’s solicitors volunteered to resolve the dispute by giving discovery of documents answering category (g) ‘limited to those parts of the documents obtained by the AFL during its investigation into the 2012 supplements program at EFC [Essendon Football Club] which refer to the plaintiff by name’. [29] Those are the documents that are said to comprise 12 folders of documents. The Table identifies the documents within those 12 folders which refer to the player Hal Hunter by name. The AFL volunteered to do the same for category (j) (limited to documents between the club and Dank or any entity related to Dank which expressly refer to the administering of AOD-9605 to Hal Hunter) and, category (k): limited to documents between the club and Dank or any entity related to Dank which expressly refer to the administering of Thymosin Beta-4 or any other type of Thymosin to Hal Hunter.
[29]See Constantinou’s third affidavit Exhibit JC–5.
The Court is told that within the 12 binders, there are some voluminous documents within which on a particular page there is reference to Hal Hunter and the administration of supplements in particular AOD-9604 and Thymosin Beta-4. Mr O’Brien’s affidavit states that given the time and cost involved, he has not read each of the documents within the 12 binders but a sample of them shows that many of the documents refer to other players. It is not put as an oppression objection, but it is to say that if there is to be production of the lot, it will be necessary for the AFL to undertake a substantial and exacting redaction exercise of contents that do not concern the plaintiff, which it is said will be a laborious and therefore expensive exercise all of which would be payable by the player as the usual costs order that is made in this type of application.[30]
[30]The Court has the discretion to order that such costs then can ultimately be part of the costs of a case that is commenced having had the benefit of pre action discovery orders.
But as Senior Counsel for the players submitted, the extraction of pages only from the 12 arch binders which refer to Hunter’s name of itself would not be complete without an apparent or meaningful context. To be of any real use, the examiner must see by reference to what other matters Hal Hunter’s name was being cited in that document; that is the purport of the document.
I think the legal solution amidst the tension and the complications is for the AFL to discover the individual page or pages from its database that refer to the plaintiff by name, as volunteered. For each extract so produced, I would require the AFL by a knowledgeable person to give a concise explanatory statement describing (i) the title or description of the document from which the extract was taken; (ii) the number of pages comprising that document; (iii) the origin or maker or source or custodian of that document; (iv) and a description of the nature or the purport of the document of which that extract forms a part. This ought be an efficient and cost effective way of equipping the plaintiff and his lawyers with an understanding of the context of the extracts.
What is the upshot of all this?
The long lead up to this application has produced documents and shrunk the dispute. The evidence as against the Club for this application, and the evidence from the Club dealing with each of the categories sought, means in effect that Hal Hunter has obtained from the Club all the documents that the club says that it has. No orders against the Club need be made in that state of affairs. As against the AFL, it is unnecessary for it to produce documents that the Club has produced. Further, it is unreasonable and goes beyond the realms of the pre action discovery rule to require the AFL to produce all documents in its database. What is reasonable and proportionate to the ends of procedural justice is for the AFL to produce documents from its investigation that name Hal Hunter and give some idea of the greater document of which the extract forms part. To that extent, the application against the AFL is allowed in part, although it is obvious that the Court is, with adaptation, allowing an application which the AFL was willing to voluntarily give the day before the hearing was conducted. The transcript of the interview of James Hird as sought in category (d) is accepted by the AFL as discoverable. It will be a document for which privilege from production may be claimed but that is a separate matter. It is appropriate for an order to be made concerning that category as against the AFL but it need not be made against the Club.
Added to the documents he already has and what he would already know, those proposed orders ought give sufficient to enable Hal Hunter and his lawyers to decide whether or not to make a claim.
I would ask the parties to prepare an order to consonant with this judgment. Should there be any further submissions on the form of orders, or ancillary orders, I shall convene a hearing to consider their final form.
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