Peris and Anti-Doping Rule Violation Panel - [2020] AATA 1855

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] AATA 1855
Decision Date: 17 June 2020

CaseChat Overview and Summary

This matter concerned an application for an extension of time to seek review of a decision made by the Anti-Doping Rule Violation Panel (ADRVP). The applicant sought to extend the time for applying for review by seven months beyond the prescribed period. The respondent argued that it would be prejudiced by the extension and that the applicant's reasons for the delay were insufficient. The court was required to determine whether to grant the extension of time, considering the prejudice to the respondent and the adequacy of the applicant's explanation for the delay.

The court considered the applicant's rights as communicated by ASADA in a letter dated 10 May 2019. This letter advised the applicant that the ADRVP's decision related only to assertions of anti-doping rule violations and that such decisions could be referred to the Administrative Appeals Tribunal (AAT) for review within 28 days of receipt of the letter. The letter explicitly stated that the AAT was not the forum for appealing decisions relating to sanctions, which were matters for sporting bodies or tribunals. The court also noted that a subsequent Infraction Notice, issued on 25 June 2019, informed the applicant of asserted anti-doping rule violations and proposed sanctions, with a 14-day period to file an application for a hearing with the Court of Arbitration for Sport (CAS).

The court found that the applicant's reasons for the significant delay were not sufficient to justify granting an extension of time. The applicant had been informed of her review rights and the relevant timeframes, including the distinction between AAT review of the ADRVP's decision and CAS proceedings for sanction. The court concluded that the applicant had not provided a satisfactory explanation for the seven-month delay in seeking review. Consequently, the application for an extension of time was refused.

Orders

Orders of the court

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Background

Background to the litigation

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] 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); andc)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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 decision5.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 Steps8.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.” 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.

Ratio Decidendi

Legal Principle Established

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