Peris and Anti-Doping Rule Violation Panel
[2020] AATA 1855
•17 June 2020
Peris and Anti-Doping Rule Violation Panel [2020] AATA 1855 (17 June 2020)
Division:GENERAL DIVISION
File Number: 2020/0136
Re:Jessica Peris
APPLICANT
And:Anti-Doping Rule Violation Panel
RESPONDENT
And:Chief Executive Officer, Australian Sports Anti-Doping Authority
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 17 June 2020
Place:Melbourne
The Tribunal decides to refuse the applicant’s application to extend the time within which she may apply for review of the respondent’s decision to make an assertion under cl 4.09(5) of the National Anti-Doping Scheme that there has been a possible anti-doping rule violation by the applicant.
…………[sgd]…………………….
Deputy President S A Forgie
Catchwords PRACTICE AND PROCEDURE – application for extension of time to apply for review – application is made seven months after the prescribed time – whether respondent would be prejudiced by extension – whether applicant’s reasons sufficient to explain delay – whether notice of review rights given to applicant misleading – limited nature of review that may be undertaken by Tribunal in the matter – application refused
Legislation
Administrative Appeals Tribunal Act 1975; s29(7); s42B
Administrative Decisions (Judicial Review) Act 1977; 11(1)(c)
Australian Sports Anti-Doping Authority Act 2006; s 9; s 15; s 18
Australian Sports Anti-Doping Authority Regulations 2006; cll 1.05; cl 1.06; Part 4
Commonwealth Constitution; s 75
Federal Court Act 1976
Freedom of Information Act 1982
Migration Act 1958
Secondary materials
Athletics-Australia Anti-Doping Policy; Article 7.9A
Cases
Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95; (2013) 214 FCR 40; 303 ALR 406; 61 AAR 11; 136 ALD 241
Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd & Ors [1989] FCA 44
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Dix v Client Compensation Tribunal (1993) 1 VR 297
Doyle v Chief of Staff (1982) 42 ALR 283
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
Lucic v Nolan (1982) 45 ALR 411
Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Re Makarov and Minister for Home Affairs [2019] AATA 5161
Re Rahimzadeh and Secretary, Department of Social Services[2019] AATA 3201
Re Smith and ADRVP and CEO of ASADA [2019] AATA 5489
Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 326 ALR 391
Vella v Minister for Immigration and Border Protection [2015] FCAFC 53; (2015) 230 FCR 61
Vella v Minister for Immigration and Border Protection [2015] HCATrans 263.
Wedesweiller v Cole (1983) 47 ALR 528
REASONS FOR DECISION
Deputy President S A Forgie
On 18 October 2017, a Doping Control Officer from the Australian Sports Anti-Doping Authority (ASADA) tested Ms Peris during a training session at the Somerset Track, Somerset College, in Brisbane. In a notice given to her and dated 16 April 2019, ASADA advised Ms Peris that the Anti-Doping Rule Violation Panel (ADRVP) proposed to make two assertions under cl 4.09(5) of the National Anti-Doping Scheme (NAD Scheme).[1] The assertions were that the samples she provided on 18 October 2017 had been analysed and the ADRVP asserted the possible presence of prohibited substances (Exogenous Androsterone, Etiocholanolone and 5β-androstane-3a, 17 β-diol) in the sample and the possible use on/and or before 18 October 2017 of a prohibited substance (Dehydroepiandrosterone). ASADA’s letter gave Ms Peris an opportunity to make a submission in relation to the proposed assertions before referring the matter back to the ADRVP for its final decision. ASADA did not receive a submission from, or on behalf of, Ms Peris.
[1] The notice is referred to in ASADA’s letter dated 10 May 2019.
In a letter dated 10 May 2019, the Australian Sports Anti-Doping Authority (ASADA) advised Ms Peris of the ADRVP’s decision to assert that there had been a possible anti-doping rule violation by Ms Peris. Ms Peris commenced proceedings in the Court of Arbitration for Sport (CAS) on 24 January 2020. She did not apply to the Tribunal for review of the ADRVP’s decision until 9 January 2020, which was some seven months beyond the 28 days in which she might make that application. Under s 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act), Ms Peris has applied for an extension of that time limit. I have decided not to extend the time for Ms Peris to make an application and now set out my reasons.
LEGISLATIVE FRAMEWORK
The NAD Scheme
The Australian Sports Anti-Doping Authority Act 2006 (ASADA Act) requires regulations made under it to prescribe a scheme that implements the General Anti-Doping Convention, the implementation of the UNESCO Ant-Doping Convention (as it has entered into force in Australia) and ancillary or incidental matters.[2] That scheme is known as the “NAD Scheme”. Division 2 of Part 2 of the ASADA Act sets out what must be included in the NAD Scheme. Section 15 provides that it must contain sporting administration body rules that are applicable to one or more specified sporting administration bodies and that relate to anti-doping rules. Section 18 provides that the NAD Scheme may make provision in relation to a matter by conferring a power to make a decision of an administrative character by the Chief Executive Officer of ASADA (CEO), the ADRVP, the Australian Sports Drug Medical Advisory Committee (ASDMAC) or any other body specified in the regulations.[3]
[2] ASADA Act; s 9
[3] ASADA Act; s 18
The NAD Scheme is prescribed in Schedule 1 to the Australian Sports Anti-Doping Authority Regulations 2006 (ASADA Regulations).[4] As required by s 13(1)(a) of the ASADA Act, cl 1.06 of the NAD Scheme sets out the classes of athletes, who are subject to the NAD scheme:
[4] ASADA Regulations; r 3
“(1) Persons who compete in sport are subject to the NAD scheme if the sport has an anti-doping policy.
Note:A person who competes in sport and who is subject to the NAD scheme is an athlete (see section 4 of the Act).
(1A)The anti-doping rules apply to all athletes.
(2)the following classes of athletes may be tested by the CEO under the NAD scheme:
(a)athletes in the CEO’s registered testing pool;
(b)athletes in the CEO’s domestic testing pool;
(c)international-level athletes;
(d)athletes who compete in international events;
(e)athletes who compete in national events;
(f)athletes for whom the CEO is required or permitted to test under a contract or an anti-doping arrangement;
(g)athletes in the registered testing pool of an International Sporting Federation, or a national anti-doping organisation or regional anti-doping organisation;
(h)athletes who are in Australia at the time of testing;
(i)athletes serving a period of ineligibility.”
Note 1 to r 1.05, which sets out definitions of various terms used in the NAD Scheme, provides that a number of expressions, including “athlete”, are set out in the ASADA Act. Section 4 of the ASADA Act provides:
“athlete means a person who competes in sport and who is subject to the NAD Scheme.
Note:The NAD Scheme must provide that one or more specified classes of athletes are subject to the NAD Scheme (see paragraph 13(1)(a)).”
The anti-doping rules and the Sporting Administration Body Rules are set out in Part 2 of the NAD Scheme. Testing and investigating is the subject of Part 3. It provides for doping control officers, chaperones, investigators and blood collection officials, each of whom is required to carry an identification card. Part 3 deals with matters such as the way in which a request for a sample is made, the person’s right to have an interpreter and a representative, what the athlete may do before giving a sample and what the CEO may do with the samples provided.
Clause 3.19 provides for retired athletes:
“(1) Subclause (2) applies if:
(a)an athlete has been asked for a sample under this Division; and
(b)the athlete claims to have retired from taking part in sporting competition.
(2)The CEO may ask a sporting administration body to inform the CEO whether the athlete has notified the body that he or she has retired from taking part in sporting competition and, if so, the date of notification.
(3)The CEO may decide that the athlete is not required to give the sample if the CEO is satisfied that, before the time the sample is to be given, the athlete has retired from taking part in sporting competition.”
Division 3.4A of Part 3 provides that the CEO is authorised to request a person to attend an interview to answer questions, to give information of a specified kind or to produce documents or things of a specified kind if the CEO reasonably believes that the person has information, documents or things that may be relevant to the administration of the NAD Scheme. Clause 3.27 of Division 3.5 provides that the CEO is authorised to investigate possible violations of the anti-doping rules. An investigation must comply, or substantially comply, with the procedures mentioned in the World Anti-Doping Code and the International Standards. A failure to comply with those procedures does not affect the validity of the investigation.
Part 4 of the ASADA Regulations is concerned with management of the results of analytical findings in relation of the sample A provided by the athlete. If the CEO receives an atypical finding or an adverse analytical finding in relation to an A sample, the CEO is required to review the documentation relevant to sample collection session and the laboratory analysis for irregularity or departures from the relevant international standards.[5] If the CEO does not conclude that the result of the testing was void, the CEO must decide whether the therapeutic use exemption covers the athlete in relation to the finding. That consideration is carried out under cl 4.02 of the NAD Scheme.
[5] NAD Scheme; cl 4.01
If the CEO determines under cl 4.02 that the athlete is not covered by a therapeutic use exemption in relation to an atypical finding, the CEO may conduct an investigation in order to determine whether or not the atypical finding amounts to an adverse analytical finding. The CEO must make that determination following cl 4.03 and determine whether the atypical finding amounts to an adverse analytical finding.
Where the CEO has made a determination under cl 4.03 following a finding that an athlete is not covered by a therapeutic use, the CEO must notify the athlete of that including details set out in cl 4.04. If the athlete does not then waive the B sample analysis or the CEO decides to have the B sample analysed, the procedures for analysis set out in cl 4.05 must be followed. If the B sample does not confirm the A sample analysis, the CEO must notify the athlete and any other parties that were previously notified of the A sample analysis that the sample has been declared negative.[6]
[6] NAD Scheme; cl 4.05
If the B sample analysis confirms the A sample or the athlete waives the B sample analysis and the CEO decides not to have it analysed, the CEO must notify the athlete in writing of the adverse analytical finding. The CEO’s notice must also include:
“(a) that the result of the B sample analysis (if conducted) confirms the adverse analytical finding; and
(b)that the athlete (or a person on the athlete’s behalf) may, within the response period for the notice, give the CE:
(i)a written submission setting out information or evidence that may affect the validity of the results of the testing; or
(ii)notice waiving this right to make a submission; and
(iii)notice waiving this right to make a submission; and
(c)that if the athlete (or a person on the athlete’s behalf) does not give the CEO a written submission or notice within the response period, the athlete is taken to have waived the athlete’s right to make a submission; and
(d)that, after considering any submission made by the person (or a person on the athlete’s behalf), the ADRVP may make an assertion relating to the adverse analytical finding and notify the CEO of that assertion; and
(e)details of other parties that will be notified of such an assertion; and
(f)that the CEO may also publicly disclose details of such an assertion.”[7]
[7] The “response period” for a notice given by the CEO under Part 4 of the NAD Scheme means “… (a) the period of 10 days after the participant receives the notice; or (b) if the CEO considers that a shorter period is reasonably necessary due to the circumstances (for example, because of a forthcoming international event or national event) – a shorter period specified in the notice; or (c) a longer period notified by the CEO in writing to the participant.”: NAD Scheme; cl 1.05.
As soon as the response period referred to in cl 4.06 has ended, the CEO must give the ADRVP a copy of the notice, a copy of the evidence or information he or she has relied on in giving the notice, any submission given to the CEO before the end of the response period[8] and any submission that the CEO wishes to make in relation to the possible anti-doping rule violation.[9] The ADVRP must, as soon as practicable, decide whether there has been a possible anti-doping rule violation by the participant.[10] If it decides that there has been a possible anti-doping rule violation by the participant, it must request the CEO to give the participant a notice under cl 4.09(1).[11] If not satisfied there has been a possible anti-doping rule violation by the participant, the ADVRP must decide not to make an assertion in relation to the participant.[12]
[8] NAD Scheme; cl 4.08(1)
[9] NAD Scheme; cl 4.08(2) In the context of a case such as this, the reference to a “participant” is a reference to an “athlete”: NAD Scheme; cl 1.05
[10] NAD Scheme; cl 4.08(4)
[11] NAD Scheme; cl 4.08(5)
[12] NAD Scheme; cl 4.08(6)
A written notice given to a participant by the CEO must comply with cl 4.09(1). The notice must give the participant written notice containing a statement that the ADRVP is satisfied that there has been a possible anti-doping violation by the participant. It must include a copy of any submission by the CEO in relation to the possible anti-doping rule violation given to the ADRVP under cl 4.08(2) and a summary of any information given under cl 4.08(3). The CEO must give the participant notice that he or she may, within the response time, give the CEO a written submission setting out evidence or information mentioned in cl 4.09(2) or notice waiving the right to make a submission. The CEO’s notice must also include a statement that, if the participant does not give the CEO a written submission within the response period, he or she is taken to have waived his or her right to do so.[13]
[13] NAD Scheme; cl 4.09(1)(e)
For the purposes of cl 4.08(1)(d), cl 4.08(2) provides:
“… the evidence or information that may be included in a submission is as follows:
(a)evidence or information addressing a submission by the CEO mentioned in paragraph (1)(b) or a summary mentioned in paragraph (1)(c);
(b)if a submission was made by, or on behalf of, the participant under clause 4.06 or 4.07A – evidence or information of a kind that could have been, but was not, set out in the submission under that clause;
(c)if no such submission was made – evidence or information of a kind that could have been set out in such a submission.”
After the response period and the CEO has given it any submission received,[14] the ADRVP must, as soon as practicable, after the end of the response period, consider whether it remains satisfied that there has been a possible anti-doping rule violation by the participant.[15] In undertaking that consideration, cl 4.09A(1) provides that:
“… the ADRVP must have regard only to the following material:
(a)the material given under subclause 4.08(1);
(b)any submission by the CEO given to the ADRVP under subclause 4.08(2);
(c)any additional information given to the ADRVP under subclause 4.08(3);
(d)any submission given by or on behalf of the participant under paragraph 4.09(1)(d).”
[14] NAD Scheme; cl 4.09(3)
[15] NAD Scheme; cl 4.09(4)
If satisfied that there has been a possible anti-doping rule violation by the participant, the ADRVP must make an assertion that there has been a possible anti-doping rule violation by the participant.[16] An assertion made by the ADRVP must be in writing and must contain, under cl 4.09(6), the participant’s name, if the participant is an athlete, his or her date of birth and sport, the nature of the assertion, the date of the possible anti-doping rule violation, and any other details relevant to the possible anti-doping rule violation that the ADRVP considers appropriate. The ADRVP must give the CEO a notice of a decision as soon as practicable.[17]
[16] NAD Scheme; cl 4.09(5)
[17] NAD Scheme; cl 4.10
The CEO must give notice of a decision by the ADRVP to the participant as soon as reasonably practicable after receiving a notice from the ADVRP.[18] The notice of a decision to make an assertion in relation to a participant must:
“(a) include the information mentioned in subclause 4.09(6); and
(b)state that the participant has the right to have the decision reviewed by the Administrative Appeals Tribunal by application made within 28 days of receipt of the notice; and
(c)state the persons or organisations to whom the CEO must or may give a written notification of the assertion.”[19]
The notice may also state details of any recommendation made, or proposed to be made, by the CEO to the relevant sporting administration bodies as to the consequences of the assertion.[20] It may also include any other details the CEO considers relevant.[21]
[18] NAD Scheme; cl 4.11(1)
[19] NAD Scheme; cl 4.11(2)
[20] NAD Scheme; cl 4.11(3)
[21] NAD Scheme; cl 4.11(4)
Clause 4.12 provides that:
“The participant to whom an assertion relates may, within 28 days of receiving notice of the assertion from the CEO, apply to the Administrative Appeals Tribunal for review of the ADRVP’s decision to make the assertion.”
Section 13(1)(k) of the NAD Scheme requires the NAD Scheme to authorise the CEO to present assertions relating to possible violations of the anti-doping rules. Clause 4.13 of the NAD Scheme addresses that requirement by providing that the CEO may present the following to CAS:
“(a) an assertion;
(b)a recommendation by the CEO in relation to an assertion;
(c)any other additional information.”[22]
The CEO may make the presentation at the request of a sporting administration body or on the CEO’s own initiative.[23] With the approval of the CEO, a sporting administration body may present an assertion to CAS or another sporting tribunal.[24]
[22] NAD Scheme; cl 4.13(1)
[23] NAD Scheme; cl 4.13(1A)
[24] NAD Scheme; cl 4.13(2)
Division 4.4 of Part 4 of the NAD Scheme is concerned with disclosure of information. Within a reasonable time after receiving notice from the ADRVP of an assertion in relation to a participant, the CEO must give written notice about the assertion to each relevant sporting administration body for the participant and each relevant government sports agency for the participant and the World Anti-Doping Agency (WADA).[25] If he or she thinks it appropriate to do so, the CEO may give written notice about the assertion to any other sporting administration body.[26] Clause 4.20 places certain restrictions on the transmission of non-public information. Clause 4.22 is concerned with the publication of information. The CEO may publish information in the circumstances set out in cl 4.22.
[25] NAD Scheme; cl; 4.17 and ASADA Act; s 4
[26] NAD Scheme; cl 4.17
Athletics Australia Anti-Doping Policy
The Athletics-Australia Anti-Doping Policy (AAAD Policy) is the anti-doping policy adopted and implemented by Athletics Australia in accordance with its and ASDA’s responsibilities under the World Anti-Doping Code, the ASADA Act and the ASADA Regulations. The AAAD Policy applies to Athletics Australia and all of its members or affiliate organisations. Athletics Australia agrees to be bound by the Sporting Administrative Body Rules contained in cl 2.04 of the ASADA Regulations.[27] The AAAD Policy also applies to those persons described in cl 1.3 of Article 1. Those persons include:
[27] AAAD Policy; Article 1.1 and 1.2
“1.3.1 … the following Persons (including Minors), in each case, whether or not such Person is a citizen of or (temporary or permanent) resident in Australia:
1.3.1.1all Athletes and Athlete Support Personnel who are members of Athletics Australia or of any member or affiliate organisation (including any clubs, teams, associations or squads);
1.3.1.2all Athletes and Athlete Support Personnel and other Persons who participate in such capacity in Events, Competitions and other activities organised, convened, authorised or recognised by Athletics Australia or any member or affiliate organisation (including any clubs, teams, associations or squads), for the purpose of anti-doping;
1.3.1.3…
1.3.1.4…
1.3.1.5any Athlete or Athlete Support Personnel or other Person shall be deemed to have agreed to be bound by and comply with this Anti-Doping Policy for a period of six months following the last time the any Athlete or Athlete Support Personnel or other Person participated in or was scheduled to participate in any capacity recognised under the Anti-Doping Policy. For clarity, Athletes shall remain subject to Testing for that six-month period and be subject to results management (including hearings and appeal processes) in accordance with Article 17. The continuation of the application of this Anti-Doping Policy prevails regardless of retirement, contract termination, or any other cessation of arrangement with Athletics Australia.
1.3.2This Anti-Doping Policy shall also apply to all other Persons over whom the Code, ASADA Act, ASADA Regulations and NAD Scheme give ASADA jurisdiction in respect of compliance with the anti-doping rules as defined in the ASADA Act, including all Athletes who are nationals of or resident in Australia, and all Athletes who are present in Australia, whether to compete or to train or otherwise.
1.3.3Persons falling within the scope of Articles 1.3.1 or 1.3.2 are deemed to have accepted and to have agreed to be bound by the Anti-Doping Policy, and to have submitted to the authority of ASADA and other Anti-Doping Organisations under this Anti-Doping Policy and to the jurisdiction of the hearing panels specified in Article 8 and Article 13 to hear and determine cases and appeals brought under this Anti-Doping Policy, as a condition of their membership, accreditation and/or participation in sport.
1.3.4Persons listed in Articles 1.3.1.1 to 1.3.1.5 agree to be knowledgeable of, comply with, and be bound by the AOC Anti-Doping By-Law, as in force from time to time and as applicable.”
Article 3.2 of the AAAD Policy provides that:
“Methods of establishing facts and presumptions
Facts related to anti-doping rule violations may be established by any reliable means, including admissions. The following rules of proof shall be applicable in doping cases …:
3.2.1 Analytical methods or decision limits approved by WADA [World Anti-Doping Agency] after consultation within the relevant scientific community and which have been the subject of peer review are presumed to be scientifically valid. Any Athlete or other Person seeking to rebut this presumption of scientific validity shall, as a condition precedent to any such challenge, first notify WADA of the challenge and the basis of the challenge. CAS on its own initiative may also inform WADA of any such challenge. At WADA’s request, the CAS panel shall appoint an appropriate scientific expert to assist the hearing panel in its evaluation of the challenge. Within 10 days of WADA’s receipt of such notice, and WADA’s receipt of the CAS file, WADA shall also have the right to intervene as a party, appear amicus curiae, or otherwise provide evidence in such proceeding.”[28]
[28] Footnote omitted
Article 7 states those responsible for results management of all potential anti-doping rule violations. The roles of ASADA and of the ADRVP mirror those ascribed to them under the NAD Scheme. Once the ADRVP has made an assertion of a possible anti-doping rule violation in accordance with the ASADA Act and the NAD Scheme and unless otherwise agreed between ASADA and Athletics Australia, ASADA will make the notifications required by Article 7.9A. Among the notices is an Infraction Notice issued to an Athlete under Article 7.9A. That Infraction Notice notifies the Athlete of the asserted anti-doping rule violations under the AAAD Policy and the basis for the violation. It must state that the person has a right to a hearing in relation to the asserted violation. If the person elects to have a hearing, he or she must file and application for hearing with a hearing body recognised or approved by ASADA within 14 days of receipt of the Infraction Notice.[29] Article 7.9A.2(d) provides that the Infraction Notice will:
“… state that if the Person does not respond within 14 days of receipt of the infraction notice, or files an application for a hearing in CAS after the end of the 14 days referred to in 7.9A.2(c), they will be deemed to have waived their rights to a hearing and Athletics Australia, in consultation with ASADA and other relevant parties, where applicable, may apply a sanction in accordance with Article 10”.
[29] AAAD Policy; Article 7.9A.2(c)
Article 8 provides for a right to a fair hearing when any person is asserted to have committed an anti-doping rule violation. The Article 8 hearing body is the Court of Arbitration for Sport (CAS) or a hearing body recognised or approved in writing by ASADA.[30] Should a person elect to have a hearing in accordance with Article 8, the person will be responsible for filing his or her application for a hearing with CAS and payable any applicable CAS fees.[31] ASADA and Athletics Australia are both entitled to present evidence, file submissions, cross-examine witnesses and do any other thing necessary for the enforcement of the AAAD Policy at any hearing under the Article. Article 8.6 provides that:
“CAS will determine:
a)if the Person has committed a violation of this Anti-Doping Policy;
b)if so, what Consequences will apply (including the start date for any period of ineligibility); and
c)any other issues such as, but not limited to, reimbursement of funding provided to the Athlete or other Person by a sport organisation.”
[30] AAAD Policy; Article 8.4.1
[31] AAAD Policy; Article 8.4.2
Apart from the initial CAS application fee, each party bears any upfront fee of CAS in equal proportions. Subject to one qualification, each party bears its own costs.[32] The one qualification is that ASADA is required to reimburse the athlete the application fee and their portion of the upfront fee if it is found that no anti-doping rule violation has occurred.[33] Appeals from decisions of CAS are provided for in Article 13.[34]
[32] AAAD Policy; Article 8.4.3 and 8.4.4
[33] AAAD Policy; Article 8.4.4
[34] AAAD Policy; Article 8.8
Article 10 sets out the possible sanctions that may be imposed and the factors that must be taken into account in concluding whether to impose a sanction and the nature of any sanction.
The time for filing an appeal to CAS is set out in Article 13.6. It is 21 days from the date of on which the person appealing received the decision.[35]
[35] AAAD Policy; Article 13.6.1
BACKGROUND
Membership of sporting bodies and competitions
Ms Peris was a member of NT Athletics until 31 March 2017 when her membership lapsed. She was not a member of, or registered with, any other sporting body when she competed in the following events:
(1)17 and 18 June 2017: AllComers Games, Townsville, Queensland; and
(2)28 June to 1 July 2017: Oceania Area Championships, Fiji.
On or about 5 October 2017, Ms Peris applied for membership of the Ignition Athletics Club (Ignition) by way of Member Association of Queensland Athletics (QA). On 12 October 2017, Leanne from Ignition emailed Ms Peris advising her that her membership with Ignition was not complete. She asked Ms Peris to log on to the QA website as soon as possible to follow up and complete the financial side of things. Leanne also forwarded to Ms Peris an email she had received from the Somerset College Facilities Manager on 29 September 2017. He advised that athletes were not permitted to train at Somerset College if they had not registered through Ignition’s member association. He asked her to send through a list of current financial members as there had been instances in the previous few weeks of non-registered athletes entering the grounds and using the facilities at Somerset College.
Ms Peris paid her registration fee on 23 October 2017. Her payment was made five days after ASADA’s drug test on 18 October 2017. On 9 February 2018, the President of the Ignition Athletics Club wrote to Ms Peris clarifying that her membership was not valid until full payment for the period was received.
On 4 December 2017, Ms Peris was sent notice of approval of her nomination for selection in the Australian team to participate in the Commonwealth Games. Those games were held on the Gold Coast between 4 and 15 April 2018.[36]
[36] Affidavit of Melissa Gangemi affirmed on 23 April 2020 at [5]; Annexure MJG-2
Testing
Without giving prior notice to Ms Peris, ASADA conducted a drug test on 18 October 2017 while she was training at the Somerset Track, Somerset College, in Brisbane. At the conclusion of the test, during which Ms Peris provided an A and a B sample, she was given a Doping Control Notification. ASADA advised Ms Peris on 18 January 2018 that her Sample A had shown the presence of Exogenous Androsterone, Etiocholanolone and 5β-androstane-3a, 17 β-diol. Through her previous solicitor, Ms Peris elected on 25 January 2018 to have her Sample B tested. In a letter dated 14 November 2018, ASADA advised Ms Peris that the analysis of Sample B had confirmed the presence of Exogenous Androsterone, Etiocholanolone and 5β-androstane-3a, 17 β-diol. ASADA advised Ms Peris that it that it had referred the matter to the ADRVP and outlined her right to make a submission and of the process that would be followed by the ADRVP. If, at the end of the process, the ADRVP asserted that Ms Peris had committed possible anti-doping rule violations, the CEO of ASADA was required to give written notice of the ADRVP’s decision to Ms Peris’s relevant sporting administration bodies, her relevant government sports agency and WADA.
In Attachment A to its letter, ASADA advised Ms Peris that it was satisfied that the testing of her sample had complied with relevant International Standards published by WADA and that it was not aware that she had any approval for therapeutic use of the substance identified in testing. Exogenous Androsterone, Etiocholanolone and 5β-androstane-3a, 17 β-diol are prohibited under Class S1.1.b (Endogenous Anabolic Androgenic Steroids) of the World Anti-Doping Code – International Standard – Prohibited List 2017. Included in Attachment A were messages shared between numbers in the mobile phone that Ms Peris had produced to ASADA and other mobile numbers.
Ms Peris’s requests for access under the Freedom of Information Act 1982
On or about 26 June 2018, Ms Peris, through her former solicitors, made a request under the Freedom of Information Act 1982 (FOI Act) for copies of the chain of custody documentation and copies of all material obtained from her, including text messages extracted from her mobile phone and computer records. Mr Griffin submitted that ASADA had seized Ms Peris’s mobile phone on 20 January 2018 and returned it to her after forensically examining it. He also submitted that, on 19 July 2018, ASADA advised Ms Peris that her request would substantially and unreasonably divert ASADA’s resources from its other operations. Mr Griffin then submitted that the chain of custody documentation has been redacted to the point that it does not disclose any relevant information as to the process of transportation and storage of the sample taken.
Following the advice given to her on or about 19 July 2019, there were consultations between her former solicitors and ASADA leading to a refinement of her request under the FOI Act to:
“(a) Copies of laboratory documentation (with the exception of the specific documents requested to be produced by ASADA under FOI) (Part A)
(b)Expert review panel records and expert assessments (Part B)
(c)Certificates of Analysis (Part C)
(d)Incoming and outgoing correspondence, memorandums, reports, minutes of meetings, file notes and/or any other written or electronic documents or records pertaining to Ms. Peris (Part D).”
ASADA made its decision on Ms Peris’s request and advised her of it in a letter addressed to her solicitor, Mr Griffin, and dated 10 December 2019. ASADA’s letter advised Mr Griffin that, if it held any documents meeting the description in Part A, Ms Peris was not entitled to access to them under the FOI Act. That follows from s 12(1)(c), which provides that a person is not entitled to obtain access to a document under the FOI Act if it is available for purchase by the public. Arrangements to purchase the laboratory documentation package from the Australian Sports Drug Testing Laboratory (ASDTL), which is part of the National Measurement Institute in the Department of Industry, Innovation and Science were already in place. ASADA had advised her in an earlier letter dated 18 January 2018 that they were available for purchase for $1,250 plus GST. It had advised her of her Adverse Analytical Finding in that letter.
ASADA provided access to all of the documents it had identified as coming within Part B of Ms Peris’s request. There were three in all. It had not located any documents meeting the description of those referred to in Part C.[37] Copies of her ADAMS Test Repots had been given to Ms Peris in response to a previous request she had made under the FOI Act. It identified 17 as coming within Part D. Of these, ASADA granted access to 14 in full and claimed that the remaining three were exempt in their entirety. ASADA claimed that they were exempt under s 33 of the FOI Act saying:
“Section 33 of the F01 Act exempts documents where the disclosure would, or could reasonably be expected to, cause damage to the Commonwealth's security, defence or international relations or would divulge information communicated in confidence to the Commonwealth by a foreign government, an agency of a foreign government or an international organisation.
Documents 13, 14 and 19 are communications between the ASDTL and World Anti-Doping Agency regarding the testing and analysis of samples. I am satisfied that they constitute material provided in confidence to the Commonwealth of Australia by an international organisation and that accordingly they are exempt from release pursuant to section 33 of the F01 Act.”
[37] ASADA noted that it did not hold any documents specifically referring to a “Certificate of Analysis” in respect of Ms Peris. It had previously provided copies of her ADAMS Test Reports under a previous request under the FOI Act.
ASADA’s invitation to Ms Peris to make submissions regarding assertions proposed by the ADRVP
ASADA gave Ms Peris a notice dated 16 April 2019 to the effect that the ADRVP proposed to make two assertions under cl 4.09(5) of the NAD Scheme. She did not respond.
ASADA’s notification of ARVP’s assertions
After referring to the ADRVP’s assertions regarding the possible presence of prohibited substances and the use of a prohibited substance and the opportunity it had previously given her to make a submission, ASADA’s letter dated 10 May 2019 to her continued:
“Your rights in relation to the ADRVP’s decision
5.The ADRVP’s decision relates only to the assertions in relation to the possible anti-doping rule violations (ADRVs), and that decision may be referred to the Administrative Appeals Tribunal (AAT) for review. Please note the AAT is not the forum in which to appeal a decision relating to any sanction that may later be imposed upon you. A decision is relation to sanction is a decision to your sporting body or sporting tribunal ultimately makes.
6.You may apply to the AAT for a review of the ADRVP’s decision within 28 days of the date you receive this letter. The AAT can be contacted on 1800 228 333. The ADRVP, not ASADA, is the proper respondent for any such review. If the AAT makes an order affecting the operation or implementation of the ADRVP’s decision, ASADA will, as soon as practicable, provide written notices to you and any organisation previously notified.
7.The Athletics Australia (AA), Sport Australia (SA), the Athletics Integrity Unit (AIU) and the World Anti-Doping Agency (WADA) will be given details relating to the assertions and sent copies of this correspondence. ASADA may also publicly disclose information relating to the assertions in accordance with the requirements of the NAD scheme.
Next Steps
8.Next, you will receive an Infraction Notice from ASADA on behalf of AA pursuant to the terms of the Athletics Australia Anti-Doping Policy 2015, notifying you of the nature and particulars of the asserted ADRVs. This will include the proposed sanction in your matter.
9.For your information, the Court of Arbitration for Sport (CAS) is the appropriate forum to seek a hearing as to sanction (or any other matter within the jurisdiction of CAS). Information on how to file a matter in CAS will be sent out in the Infraction Notice. If you wish to file an application for a hearing with CAS, you will have 14 days from the date that you receive an Infraction Notice to do so (refer Article 7.9A.2(c) of the Policy). For the avoidance of doubt, this letter is not an Infraction Notice.
10.Please contact … on … if you have any queries in relation to the above.”
Notice sent to Ms Peris in accordance with Article 7.9A of the AAAD Policy
ASADA wrote a letter dated 25 June 2019 to Ms Peris care of her then solicitors. It wrote on behalf of Athletics Australia in accordance with Article 7.9A of the AAAD Policy advising of the asserted anti-doping rule violations. Notice of possible sanctions was given. After reviewing Ms Peris’s statements and evidence obtained from her mobile phone, ASADA notified her that it was of the view that the anti-doping violation was intentional. It determined that neither No Fault or Negligence or No Significant Fault or Negligence could apply in the matter. As a consequence, ASADA’s view was that a period of four years’ ineligibility should be applied to Ms Peris commencing on 22 January 2018.
ASADA’s letter went on to advise Ms Peris of three options that she had:
“1. Right to a hearing in relation to the asserted ADRVs [anti-doping rule violations]
You have a right to a hearing in relation to the asserted ADRVs. In accordance with Article 7.9A.2(c) of the Policy you have 14 days from the date that you receive this infraction Notice to file your application for a hearing with CAS. Information on how to file a matter in the CAS is set out below under the heading ‘Referral to a CAS Hearing’.
2. Admit the asserted ADRVs and the accepted Sanction
…
3. Deemed acceptance of the asserted ADRVs
In accordance with Article 7.10.2 of the Policy if you fail to dispute the assertion within 14 days of receiving this Infraction Notice, or file an application in CAS, you will be deemed to have admitted the ADRVs, to have waived your right to a hearing and to have accepted the consequences set out above under the heading ‘Notice of Possible Sanctions’. Under Article 7.9A(2)(d) of the Policy, AA, in consultation with ASADA may apply a sanction in accordance with Article 10.”
The letter went on to give details of the person Ms Peris should contact if she wished to have the matter referred to CAS and to advise that CAS would require both parties to pay the substantive costs associated with a hearing before its commencement. ASADA advised Ms Peris of the website address where she could obtain further information regarding costs.
Ms Peris’s application to CAS
Ms Peris chose to take the matter to CAS and paid the application fee of 1,000 Swiss Francs.[38] The date on which she did so is not clear but it is at some time before 22 July 2019 because her undated letter to CAS refers to email correspondence from ASADA dated 22 July regarding the choice of an arbitrator or a panel. The years must be 2019 because the file reference Ms Peris gives is “A4/2019” and her letter is dated 23 July 2019.[39] Her letter focused on the rules surrounding whether her case would be heard by a sole arbitrator or a panel and on how the choice would be made. Ms Peris expressed her wish that her case be heard by a panel after the issue had been resolved by the President of the Division in CAS.
[38] Email exchanges between CAS representative and ASADA: Ms Gangemi’s affidavit; Annexure MJG-1
[39] Letter accompanying Ms Peris’s application for an extension of time.
The bases of Ms Peris’s application to CAS are set out in an undated document she submitted with her application for an extension of time in the Tribunal. The first is that she was not a person who competed in sport when she was tested and was not otherwise within the jurisdiction of ASADA. Therefore, ASADA did not have any authority or jurisdiction to test her on 18 October 2017. The second basis was that the ASADA Doping Control Officers and other ASADA staff who attended Somerset College on 18 October 2017 failed to follow the WADA International Standards for Testing and Investigations and the WADA Results Management, Hearings and Decisions Guidelines in a number of significant ways in relation to the urine test. Ms Peris identified seven matters that she said amounted to irregularities and departures from international standards that have caused positive test result. Ms Peris also referred to the blood samples taken on 18 October 2017 and said that they had proved negative for all prohibited substances. Ms Peris referred to a number of authorities previously decided by CAS and requiring strict compliance with the rules. These two bases meant that the ADRVP could not be satisfied that there has been a possible anti-doping rule violation. Therefore, it must decide not to make proposed assertions of Use and Presence propounded by ASADA.
Ms Peris’s application to the Tribunal for an extension of time
Ms Peris set out her reasons for applying for an extension of time. She began by noting that she had referred her matter to CAS within 14 days of her receiving the Infraction Notice and then to ASADA’s not having provided her with her own personal documents under the FOI Act. In July 2018, she had applied for legal aid to assist her with her application to CAS. Ms Peris stated that she understood that her application for legal aid had been deliberately ignored and noted that Article S6.9 of the Code of Sports-related Arbitration guarantees the rights of natural persons without sufficient financial means to defend their rights before CAS. Without legal aid, she said that she could not afford to pay a further 9,000 Swiss Francs into the ICAS account. Ms Peris asserted that she was not being afforded natural justice, had been slandered internationally and could not afford to defend them. She is a single Aboriginal mother with no inherited wealth or child support and a direct descendant of the stolen generations. The two year “pursuit by ASADA” has taken a terrible toll on her and on her family.
SUMMARY OF THE SUBMISSIONS
On behalf of Ms Peris, Mr Griffin submitted that securing legal aid for the purposes of pursuing her application with CAS has proved an extraordinarily and complex process and she no longer has the energy or the resources to pursue it. Upon her application for an extension of the time being granted in the Tribunal, Ms Peris will abandon her CAS application.
Mr Griffin submitted that ASADA’s letter dated 10 May 2019 misled Ms Peris as to the options available to her. Paragraph 5 of ASADA’s letter dated 10 May 2019 asserts that the Tribunal is not the forum in which to seek review of any sanction that may be later imposed upon her. The wording of the letter, Mr Griffin continued, is to discourage aggrieved athletes from exercising their clear legal right to challenge a decision of the ADRVP in the Tribunal. Ms Peris was never obligated to challenge the decision in CAS alone. It is clear that ASADA prefers to have the review referred to CAS and away from the Tribunal but it is not ASADA’s role to impose its preference as, he said, it had sought to do in its letter of 10 May 2019.
Mr Griffin referred to the Tribunal’s decision in Re Smith and ADRVP and CEO of ASADA[40] (Smith). That was handed down on 19 December 2019 and Ms Peris had applied for review on 9 January 2020. He submitted:
“… Having regard to the time it would taken any reasonable person to have been alerted to the Smith decision delivered on 19 December 2019 being conscious of the Christmas break in December 2019 and January 2020 the lodgement of this Application to the AAT in such as short period of time completely answers any assertions made against her as to the adverse inferences ASADA seeks to draw against her for the delay in bringing these proceedings.
To the contrary having regard to the misleading correspondence from the Respondent of 10 May 2019, the Applicant’s failure to secure legal aid so as to prosecute or replication for review in CAS being the only jurisdiction where she thought she could have the ADRVP decision overturned, then the speed within which this Application has been made is exemplary and the normal arguments as to delay cannot prevail.”[41]
[40] [2019] AATA 5489; Deputy President Constance and Mr Reitano, Member
[41] Submissions dated 27 April 2020 at [17]-[18]
Mr Griffin sought to draw an analogy between the circumstances of Mr Smith and of Ms Peris. The Tribunal in Smith decided that a person will be “a person who competes in sport”:
“… when that person routinely or regularly engages in a physical activity involving the application of physical skill or ability in contest with others, which is engaged in in accordance with a set of laws, and where that activity is organised or formally conducted by a sporting body. The expression does not restrict the application of the NAD Scheme to elite athletes or to national or state level athletes and we reject the suggestion that it is so restricted.
It follows that we accept that whether a person is or is not a person who competes in sport will be an evaluative judgment determined on a case by case basis involving a question of fact and degree and its temporal connection to the present.’[42]
[42] [2019] AATA 5489 at [52]-[53]
The Tribunal found that Mr Smith had been a person who competed in sport on 3 and 4 March 2018 but that he was not such a person when he was tested by ASADA’s officers under the NAD Scheme on 16 May 2018. He was not a person whom ASADA was entitled to test under the NAD Scheme. Had he been, the Tribunal continued, it would have decided that the sample had not been lawfully obtained by ASADA.
On behalf of ASADA, Mr Knowles of counsel submitted that Ms Peris has not provided a proper explanation for her delay. Having made a strategic decision to commence proceedings in CAS, it is not appropriate to challenge the ADRVP’s decision without an appropriate explanation. In Vella v Minister for Immigration and Border Protection[43] (Vella), Gageler J had said:
“… It is sufficient that the principle tells strongly against the conclusion that the interests of the administration of justice make it necessary to extend time for a party to litigate issues which that party has already had an opportunity to raise in earlier litigation.”[44]
[43] [2015] HCA 42; (2015) 326 ALR 391; Gageler J
[44] [2015] HCA 42; (2015) 326 ALR 391 at [19]; 395
It is prejudicial to the public and to the general administration of justice if decisions are not regarded as final and, in the absence of a good reason, can be re-opened after an extended period of time. He referred to Re Rahimzadeh and Secretary, Department of Social Services[45] and Re Makarov and Minister for Home Affairs.[46] ASADA will suffer prejudice from the delay in the case. If the extension is granted, ASADA will be a respondent in the Tribunal and in CAS and will have to litigate in both.
[45] [2019] AATA 3201 at [14]-[15]; Dr Bygrave, Member
[46] [2019] AATA 5161 at [10]; Deputy President Pascoe
As for the merits of Ms Peris’s case, Mr Knowles submitted that she was an “athlete” for she was a person who regularly and routinely competed in sport. As far as any alleged regularities or departures from international standards are concerned, Mr Knowles stated that ASADA had not made any concessions. It was not the ADRVP’s function to determine whether there had in fact been an anti-doping rule violation; only whether there had been a possible anti-doping rule violation. The final determination of whether there an anti-doping rule violation in fact occurred is a matter for CAS under the AAAD Policy. Even if there were some irregularity or departure, the onus would have been on Ms Peris to demonstrate that the irregularity or departure could reasonably have caused the anti-doping rule violation.[47] There is nothing in the case to suggest that she has met that burden.
[47] World Anti-Doping Code 2015; Article 3.2.2
CONSIDERATION
Power to extend time for lodgement of application for review
Under cl 4.11(2) of the NAD Scheme, Ms Peris had 28 days within which to apply to the Tribunal for review of ADRVP’s decision to make an assertion. The Tribunal may extend that time if it “… is satisfied that it is reasonable in all the circumstances to do so.” That is a discretionary power conferred on the Tribunal by s 29(7) of the AAT Act and nothing in the ASADA Act or the NAD Scheme has excluded or modified that power.
Principles relating to extending time
No guidance is given in s 29(7) of the AAT Act as to when it will be “reasonable in all the circumstances” to extend the time within which an application may be lodged. The power to extend time is, however, a discretionary power that has been granted to the courts in other contexts. The courts have developed principles relevant to a consideration of the circumstances in which a discretionary power to grant an extension of time should be exercised. They apply regardless of the context.
Reference is frequently paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[48] (Hunter Valley). That case was not decided in the context of making an administrative decision but of judicially reviewing an administrative decision. It was decided in the context of an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Section 11(1)(c) permits an application to be lodged “… within such further time as the court concerned … allows.”
[48] [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
After noting that s 11 of the ADJR Act does not set out any criteria to be followed in exercising the Court’s discretion and that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he distilled six factors that are relevant in deciding to exercise the discretion. The first factor[49] was modified by the Full Court of the Federal Court in Comcare v A’Hearn[50] in the context of an application to extend time lodged under the AAT Act. Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls’ Choir Pty Ltd & Anor[51] when he said:
[49] It read in part that “It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time …”: (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 at 348; 310-311; 320
[50] [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366
[51] [2001] FMCA 109
“ In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550)
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302)
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”[52]
[52] [2001] FMCA 109 at [10]. In Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [19], Cowdroy J approved and applied these factors in the context of s 44(2A)(a) of the AAT Act. Section 44(2A) provides that an appeal instituted under ss 44(1) or (2) shall be instituted within the time set out in s 44(2A)(a) and in such manner as is prescribed by the Rules of Court made under the Federal Court of Australia Act 1976: AAT Act; s 44(2A)(b).
Principles of this sort are relevant when considering whether to extend the time within which an application may be made to the Tribunal but, in Hunter Valley, Wilcox J made it clear that he did not intend to set out an exhaustive statement of the principles to be considered. A similar sentiment was expressed by Burchett J, with whom Sheppard and Beaumont JJ agreed, when he said in Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd & Ors:[53]
“… The discretion is conferred by the Act in the widest terms. It can only be read down by reference to the subject matter, scope and purpose of the statute (see Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40). Having regard to considerations already discussed in these reasons, an examination of s. 92FABsuggests that the discretion to extend the period was conferred upon the Tribunal because it was impossible for Parliament to legislate precisely in respect of all the various situations that would arise. The task of balancing the public and private interests involved in each individual case was therefore left to the Tribunal. It would be quite inconsistent with this statutory scheme to permit the Tribunal to attempt itself the task which Parliament eschewed of laying down a rigid rule governing all cases. …”[54]
[53] [1989] FCA 44
[54] [1989] FCA 44 at [25]
In light of these principles, it can be seen that considerations of the sort set out in Hunter Valley and Phillips v Australian Girls’ Choir Pty Ltd & Anor may well be relevant but a view as to whether or not they are relevant depends on a consideration of them in light of the matter, scope and purpose of the enactment conferring power on a decision-maker to extend a time limit. Whether they are the only criteria that are relevant depends upon the same consideration but also upon a further principle that underpins all of the principles. That principle is that the extension of time provisions are intended, as in a court:
“… to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties …”.[55]
[55] Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; 64 ALJR 458 at 480; 459 per McHugh J
In the particular circumstances of the case that I must consider, the NAD Scheme provides for the review of decisions but the time prescribed by cl 4.12 as the time within which to make a claim is 28 days after the participant , to whom ADVRP’s assertion relates receives notice of the assertion. There is nothing in the provision that is made for review or in the scheme generally that suggests to me that I should have regard to criteria other than those set out in Hunter Valley as modified by Comcare v A’Hearn and summarised in Phillips v Australian Girls’ Choir Pty Ltd & Anor.
The weight that will be given to each criterion will vary from case to case. With one exception, one criterion is not inherently or necessarily more weighty than another. An application for an extension of time is not decided on the basis of whether more criteria are found to favour, or not favour, the application. Essentially, the criteria simply direct a decision-maker’s attention to matters that are relevant and assist in deciding whether it is fair to extend the time given the statutory framework within which the decision was made and which is intended to be applied consistently to those who come within its compass.
The one criterion that I have excluded from my general statement of principle in the previous paragraph relates to the merits of the application. If an extension of time were granted and the application were lodged, the question must focus not only on the merits of the application but on whether it would have reasonable prospects of success. I suggest that this must be so because Parliament has separately recognised in s 42B of the AAT Act that the Tribunal may dismiss an application for the review of a decision if it is satisfied that, among other matters, it has no reasonable prospect of success.[56] There is no point to extending time for an application which has no reasonable prospects of success.
[56] AAT Act; s 42B(1)(b)
What is meant by the expression “no reasonable prospect of success” was considered by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd[57] in the context of s 31A of the Federal Court Act 1976 (Federal Court Act). Section 31A provides:
[57] [2008] FCA 955
“Summary judgment
(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Court has apart from this section.” (emphasis added)
Section 31A gives the Court power to enter judgment for the party prosecuting or defending a proceeding if the criteria are met. That is consistent with the Federal Court’s role as the adjudicator of disputes between parties on the basis of pleadings. The Tribunal does not have a role as an adjudicator. Rather, its responsibility is as the reviewer of the merits of an administrative decision according to the law and on the evidence. The differences in their roles account for the most obvious difference between s 42B(1)(b) of the AAT Act and s 31A of the Federal Court Act. That difference is that, unlike s 31A, s 42B(1)(b) gives the Tribunal power to dismiss only the application of the applicant. Consistently with the Tribunal’s responsibility, it does not give the Tribunal power to make a decision affirming the decision-maker’s decision.
Despite that difference, some guidance is to be found in the cases that have considered s 31A. As Gilmour J said in Dandaven v Harbeth Holdings Pty Ltd[58] in relation to whether there is “no reasonable prospect of success”, which lies at the heart of s 31A and is the only issue arising under s 42B(1)(b):
[58] [2008] FCA 955 at [6]
“Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:
(a)the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
(b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;
(c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
(d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
(e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;
(g)it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
(h)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
(i)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.”[59]
[59] [2008] FCA 955 at [6] (paragraph (f) omitted in judgment)
Should the time within which Ms Peris may lodge an application for review be extended?
I have considered Ms Peris’s application for an extension of time in light of the principles I have set out above. The starting point is the seven month delay in lodging her application for review of the ADRVP’s decision. Submissions have been made by Mr Griffin on her behalf drawing on the documents that have been lodged. What they have not been based on is any statement or affidavit made by Ms Peris. It is one thing to draw on other documents in order to make submissions regarding her reasons and to allege shortcomings in ASADA’s processes but they are not a substitute for a statement in which she outlines those matters herself. In mentioning this, I do not mean to suggest that it is appropriate to engage in a full hearing of the matter. It is not appropriate but it is a time when Ms Peris should give her reasons for seeking an extension with a small degree of formality.
In this case, I do not think that her argument that she was not an “athlete”, as that term is defined in the ASADA Act, has any reasonable prospect of success. For the purposes of this case, I accept the Tribunal’s conclusion in Smith that:
“A person will be ‘a person who competes in sport’ when that person routinely or regularly engages in a physical activity involving the application of physical skill or ability in contest with others, which is engaged in in accordance with a set of laws, and where that activity is organised or formally conducted by a sporting body. The expression does not restrict the application of the NAD Scheme to elite athletes or to national or state level athletes and we reject the suggestion that it is so restricted.
It follows that we accept that whether a person is or is not a person who competes in sport will be an evaluative judgment determined on a case basis involving a question of fact and degree and its temporal connection to the present.”[60]
[60] [2019] AATA 5489 at [52]-[53]
Applying those principles, the Tribunal found that Mr Smith was not a person who was competing in sport on the day he was tested by ASADA on 16 May 2018. The Tribunal found that Mr Smith had competed in sport on 3 and 4 March 2018 when he participated in the 60 metre sprint for the 45-49 years age group at the NSW Masters Championships. He won the event in an officially recorded time of 7.54 seconds. He was recorded as running for the Campbelltown Collegians Athletics Club but he was not registered with that club or with any other athletics club or the NSW Masters Association as required by the rules. He was wearing a number, which followed from his being registered for the event. After the race, Mr Smith told his partner that he was giving up running because of the pain it caused his Achilles tendon. The Tribunal found that Mr Smith had not competed in any events after that weekend and had not competed in the 18 months preceding the NSW Masters Championships on 3 and 4 March 2018.
Ms Peris’s circumstances are rather different. Her membership with an athletics club has been a little sporadic over the months preceding and succeeding ASDA’s test on 18 October 2017. Despite that, he had competed in an event or events at the AllComers Games in Townsville on 17 and 18 June 2917 and at the Oceania Area Championships in Fiji between 28 June and 1 July 2017. She was not competing on the day of the test at the Somerset College but it is apparent from the email sent by the Somerset College Facilities Manager on 29 September 2017 that only those athletes registered with an athletics club were permitted to enter and use the grounds. The fact that Ms Peris was training at Somerset College at the time does not establish that she was registered with an athletics club or that she was intending to compete but, taken with her application for membership of Ignition on or about 5 October 2017, it does indicate that she was intending to be a registered athlete with QA through Ignition’s member association.
Her intention to continue to participate in competitive athletic events is supported by her payment of the registration fee with Ignition on 23 October 2017 after the ASADA test and by her later nomination for selection in the Australian team to participate in the Commonwealth Games subsequently held on the Gold Coast between 4 and 15 April 2018.[61] The evidence points to Ms Peris being out of competition at the time ASADA’s drug test on 18 October 2017 but not out of competitive athletics. She was simply between competitions and in training. The evidence points to her being “a person who competes in sport” and so an “athlete” who was subject to the testing regime under the NAD Scheme.
[61] Affidavit of Melissa Gangemi affirmed on 23 April 2020 at [5]; Annexure MJG-2
Ms Peris’s allegations regarding the way in which ASADA conducted the test is not a matter which it is possible to explore on the material on which I have to form a view about her prospects of success. She has made a number of assertions regarding matters such as being provided with an unsealed urine sampling container, not being permitted to have a support person accompany her during the process (other than for taking the sample), the presence of other people in the bathroom where the sample was taken, failure to maintain a logbook, not being asked to wash her hands before passing urine into the container, placement of the container’s cap on the floor while she urinated into the container and not adequately explaining the Doping Control Form to her when it was her first experience in relation to Anti-Doping control procedures.
Her assertions remain unanswered by the ADRVP at the hearing but I do not think that it was obliged to answer them. The role of the ADRVP was not to conduct a hearing of all of the evidence and to make findings as to whether there was an anti-drug violation or not. All it had to decide is whether or not, on the material before it, there was a possible violation as asserted by it.[62] It had analytical results that could not be regarded as tenuous. Those results supported a possible violation. Ms Peris’s allegations as to process go to possible contamination but they do not on their own displace the analytical results. The task of the ADRVP was not to make a finding. That would be the task of CAS where Ms Peris would be faced with the presumption in Article 3.2.2 of the AAAD Policy that the onus would rest on Ms Peris to demonstrate that any alleged irregularity or departure could reasonably have caused the anti-doping rule violation.[63]
[62]Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95; (2013) 214 FCR 40; 303 ALR 406; 61 AAR 11; 136 ALD 241 at [97]; 65; 430; 36; 265
[63] World Anti-Doping Code 2015; Article 3.2.2
The reasons that Ms Peris gave in her application for an extension of time focused on the difficulties that she had experienced in pursuing her CAS application. Mr Griffin has focused on the Tribunal’s decision in Smith as establishing a reason. I have difficulties in accepting Mr Griffin’s submission because Ms Peris had already relied on the grounds put forward in Smith. Those grounds were that she was not a person to whom the NAD Scheme applied and that the ASADA officers had not carried out its testing procedures properly. These were the grounds that she was already pursuing in the CAS proceedings at the time. The case of Smith raised no new issues and so the relatively short time between the date on which the decision was handed down on 19 December 2019 and the lodgement of her application on 9 January 2020 is, I find, of no consequence.
It is put on behalf of Ms Peris that ASADA’s letter dated 10 May 2019 was misleading at best. I think that the letter’s construction suffers from trying to be too helpful to Ms Peris but I do not think that it can be read as either misleading or attempting to deter her from applying to the Tribunal. It had advised her of her right to apply to the Tribunal for a review of the ADRVP’s decision, of the 28 day time limit within which she should make her application and of its actions should the Tribunal make any order affecting the operation or implementation of the decision.
The letter went on to advise her of the steps that would follow. They included ASADA’s sending her an Infraction Notice on behalf of AA and under the terms of the AAAD Policy. That notice would include the proposed sanction. It might have been better had the second and third sentences in paragraph 5 of ASADA’s letter of 10 May 2019 been included as a separate paragraph at this point and before information regarding CAS and its being the appropriate body to seek a hearing as to sanction. Despite that, ASADA’s letter made it clear that it was not an Infraction Notice. It was clear that the Infraction Notice came later and that the right to come to the Tribunal was in relation to the decision that had been made by the ADVRP.
I have also borne in mind that Ms Peris was legally represented both before and after she received ASADA’s letter dated 10 May 2019. On the basis of ASADA’s response to Mr Griffin regarding her request under the FOI Act, I find that Ms Peris was represented by her former solicitors in June 2018 when they made that request. Both the notice of ADRVP’s decision and the Infraction Notice were sent to her care of those solicitors. In reading and understanding ASADA’s letter dated 25 June 2019, Ms Peris had the assistance of competent legal representatives who had assisted her in 2018 in relation to her FOI request and to whom ASADA addressed its correspondence in relation to the alleged anti-doping violation.
I find that she decided not to seek review in the Tribunal but to apply to CAS for review. My finding is based not only on the fact that she did not seek review in the Tribunal but also on the fact that she had not taken advantage of the opportunity to make a submission in relation to the assertions of which she had been advised in ASADA’s letter dated 16 April 2019. I am not intending in any way to be critical of the fact that she did not take that course. It was a course open to her but it is a course that any participant would take knowing that neither the ADRVP nor, in its place on review, the Tribunal can make actual findings regarding breaches or violations. All that either can do is to review the ADRVP’s decision to make an assertion that there has been a possible anti-doping rule violation by the participant who was, in this case, Ms Peris.[64]
[64] See Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95; (2013) 214 FCR 40; 303 ALR 406; 61 AAR 11; 136 ALD 241; North, Cowdroy and McKerracher JJ
The course that she decided upon following receipt of the Infraction Notice was to apply to CAS as provide for in the AAAD Policy. It was a course open to her under the AAAD Policy and it was a forum that was not subject to the same restrictions as the Tribunal would have been in reviewing the ADRVP’s decision. CAS could consider the testing procedures and come to a decision whether she had committed an anti-doping rule violation. If CAS made that decision, it could go on to review the sanctions as well as the sanction imposed upon her and determine whether she had committed a violation of the AAAD Policy and, if so, the consequences that would follow.
When choosing to embark on the course that took her to CAS, it was clear to Ms Peris from the CEO’s letter dated 25 June 2019 that costs would be involved and her attention was directed to a website where she could obtain further information. It is those costs that have made her pursuing her application in CAS very difficult without legal aid. Her application for legal aid in those proceedings has not yet proved successful.
On behalf of the ADRVP, Mr Knowles has referred to the case of Vella in support of his submission that Ms Peris has already had an opportunity to raise the issues in earlier litigation and the interests of the administration of justice count against her being given an extension of time to bring an application in this Tribunal. In that case, Mr Vella had elected not to challenge a decision made by the Minister on 13 June 2014 to cancel his visa under s 501(3) of the Migration Act 1958 (Migration Act). Instead, he chose to make representations to the Minister to revoke the cancellation as he was invited to do under s 501C of the Migration Act. The Minister decided on 18 July 2014 not to revoke the cancellation of Mr Vella’s visa.
Mr Vella then lodged an application in the Federal Court on 12 August 2014. He invoked the original jurisdiction conferred on that Court by s 476A of the Migration Act to challenge the Minister’s decision to refuse to revoke the cancellation decision. His application was unsuccessful.[65] Mr Vella then challenged the Minister’s decision to cancel his visa in the original jurisdiction of the High Court under s 75(iii) and (v) of the Commonwealth Constitution. He required an extension of time under s 486A(2) of the Migration Act to do that.
[65] Vella v Minister for Immigration and Border Protection [2015] FCAFC 53; (2015) 230 FCR 61; Buchanan, Flick and Wigney JJ. The High Court refused Mr Vella’s application for special leave to appeal: Vella v Minister for Immigration and Border Protection [2015] HCATrans 263.
In refusing Mr Vella’s application for an extension of time, Gageler J said:
“ The course pursued on Mr Vella’s behalf, not to challenge the Minister’s decision to cancel his visa under s 501(3) of the Act and instead to challenge the Minister's subsequent decision under s 501C not to revoke that decision, was logically premised on an acceptance of the validity of the cancellation decision. So much is spelt out in the form of the order for mandamus which was sought in the originating application for review filed in the Federal Court. As acknowledged in the correspondence with the Australian Government Solicitor, it was a course chosen in the knowledge that any subsequent attempt to challenge the cancellation decision would necessitate an application for an extension of time.
In University of Wollongong v Metwally (No 2), where a new argument of constitutional invalidity was sought to be raised after the hearing of a special case in this Court in which validity had been assumed, this Court unanimously stated … [(1985) 59 ALJR 481 at 483; [1985] HCA 28; 60 ALR 68 at 71; [1985] HCA 28]:
‘Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.’
The principle to which reference was made in Metwally (No 2) … tells strongly against the conclusion that the interests of the administration of justice make it necessary to extend time for a party to litigate issues which that party has already had an opportunity to raise in earlier litigation.
In the result, given the length of the period for which the extension is sought and the forensic choices which have been made in the litigation which was pursued in the Federal Court during that period, I am not satisfied that it is necessary in the interests of the administration of justice to make the order extending the period for the making of the application for an order to show cause.”[66]
[66] [2015] HCA 42; (2015) 326 ALR 391 at [17]-[20]; 394-395
In this case, CAS has not come to a decision on Ms Peris’s application let alone heard it. In making her application to CAS, however, Ms Peris necessarily accepted that there had been an “asserted violation” of the AAAD Policy. I say that she “necessarily accepted” it because her application to CAS could not be made unless the ADRVP had first made an assertion that there had been a possible anti-doping rule violation by Ms Peris. The ADRVP’s assertion was a precursor to the ASADA’s issuing, on behalf of AA, an Infraction Notice. When she lodged her application with CAS, the time for lodging an application in the Tribunal had passed. If she wanted to apply for review of the ADRVP’s assertion, she would always need to apply for an extension of time.
ASADA’s concern that it would have to face two applications in two forums running side by side has been met by Ms Peris’s, through Mr Griffin, undertaking to withdraw her application to CAS. If I were to extend the time and she were to be successful in having the ADRVP’s assertion set aside, that would mean that there is no basis for AA’s Infraction Notice. That would be an end of the matter but it must be remembered that the decision that the Tribunal is reviewing is the ADRVP’s decision to make an assertion that there has been a possible anti-doping rule violation. It is not for the Tribunal to decide if there has been an anti-doping rule violation. That is the role of CAS. If the Tribunal were to affirm the ADRVP’s assertion, that would mean that, apart from an appeal to the Federal Court, there would be no more review options for Ms Peris. No provision is made in the AAAD Policy for reinstatement of an application to appeal to CAS or for an extension of time within which to lodge a second application to CAS.
If Ms Peris were to withdraw her CAS application, it could be said that the ADRVP would not be disadvantaged because Ms Peris has kept ASADA alive to her dissatisfaction with its assertion by lodging her application with CAS. ASADA had to stand ready to be prepared to engage in that process. It will not be disadvantaged if the ADRVP is required to engage in the Tribunal proceedings at this later stage.
I think it important to bear in mind the nature of the decision that the ADRVP was required to make and that the Tribunal has power to review. It is confined to determining whether or not on the material before it, there was a possible violation. It is not the task of either the ADRVP or, on review, of the Tribunal to hear all of the evidence and to make a finding whether there was in fact an anti-doping violation by Ms Peris. Her allegations regarding the process of collection of samples are only one part of the evidence and it is not the role of the Tribunal to conduct a forensic review of the samples. In light of the analytical results of those samples and the limited nature of the Tribunal’s task on review, I have concluded that the prospects of her succeeding on review are slim.
Having regard to the course of events both within ASADA, the ADRVP and CAS, I have concluded that Ms Peris made a choice to take a course available to her under the AAAD Policy. She chose not to utilise her rights under the ASADA Act; first by not making a submission to ASADA and then by not applying to the Tribunal for review of ADRVP’s decision to make an assertion. Her choice to go to CAS was understandable given that it has power to review the merits of the matter and the Tribunal may not. Her choice, however, is a relevant factor. So too is my conclusion that her prospects of success on the limited issue that the Tribunal may review and on her argument that she is not an athlete who was subject to the testing regime under the NAD Scheme, are not reasonable as well as the seven month delay in lodgement. Having regard to all of these matters, I have decided not to extend the time within which Ms Peris may apply to the Tribunal for review of the ADRVP’s decision to make an assertion under cl 4.09(5) of the NAD Scheme that there has been a possible anti-doping rule violation by her.
| I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
..................[sgd].....................................................
Associate
Date of decision:
Heard:
17 June 2020
28 March 2020
Applicant’s Solicitor:
Respondent’s Counsel:
Respondent’s Solicitor:
Mr G Griffin
Griffin LawyersMr P Knowles
Ms M Gangemi
Australian Government Solicitor
0
24
0