PETERS and ANTI-DOPING RULE VIOLATION PANEL - [2011] AATA 333

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 333
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5075

GENERAL ADMINISTRATIVE DIVISION )

Re RYAN PETERS

Applicant

And

ANTI-DOPING RULE VIOLATION PANEL

Respondent

DECISION

Tribunal
Deputy President P E Hack SC

Senior Member Bernard J McCabe

Date 19 May 2011
Place Brisbane

Decision The Tribunal affirms the decision under review.

................................................
Deputy President

9. The letter went on to observe:
I note that in a conversation with Michael Hope [a lawyer to the Authority] on 5 July 2010, you indicated that you wished to appoint an independent witness. Please confirm if this is the case.

10.     This last entry appears to have generated some confusion. The rules provide for the individual or a representative to be present. In the absence of the individual or his representative, the Authority - not the individual - appoints an independent witness. Strictly speaking, there is no provision for the individual to appoint an independent witness. Mr Peters responded to the invitation by email on 8 July 2010. He asked “to have the Part B sample witnessed by an independent witness”. A chain of email communications reproduced in exhibit record that an independent witness was required. One was duly appointed: a Mr Heagney. Mr Heagney is a justice of the peace. He is not a scientist. It is not clear why the Authority selected him to act as an independent witness, but we do not infer anything sinister from their choice. As it happens, Mr Heagney was present for the opening of the sample on 13 July 2010 but he did not stay for the analysis. It is unclear why he did not stay for the balance of the process, but there is no evidence that he was excluded or that the Authority or the laboratory personnel did any thing to frustrate his involvement in the process.
11.
There is no evidence that anything untoward happened in the course of the analysis. The report of the analysis at p 77 of exhibit one says the sample was opened in the presence of Mr Heagney (who is identified erroneously as the “Athlete’s representative”) and subsequently loaded into a gas chromatography-mass spectrometry device. The device confirmed the presence of

1,3-dimethylpentylamine. That conclusion was hardly a surprise given Mr Peter’s admission at the time of testing that he had consumed a product that contains the banned substance in question. The laboratory’s quality manager subsequently certified that the analysis had proceeded in accordance with the WADA International Standard for Laboratories.
12.     Mr Peters was informed of the results of the Part B sample analysis by letter dated 16 July 2010 (exhibit one at p 83ff). The letter foreshadowed the possibility that the Panel would decide to make entries on the Register that would be drawn to the attention of the sporting organisations of which he was a member. It also noted the Panel might elect to recommend an appropriate sanction. Mr Peters was invited to make submissions to the Panel.…

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: [2011] AATA 333
Decision Date: 19 May 2011

CaseChat Overview and Summary

Peters was involved in a dispute with the Anti-Doping Rule Violation Panel, which arose from a test result that found Peters had violated anti-doping rules. The dispute was brought before the Administrative Appeals Tribunal, which was required to determine whether Peters was denied procedural fairness during the testing process, whether the decision to impose a ban was reviewable by the Tribunal, and whether Peters was bound by the anti-doping rules.

The Tribunal found that Peters had not been denied procedural fairness during the testing process, as the process followed the relevant rules and procedures. The Tribunal also found that the decision to impose a ban was reviewable by the Tribunal, as it was a decision made under the Australian Sports Anti-Doping Authority Act 2006 and Regulations 2006. Finally, the Tribunal found that Peters was bound by the anti-doping rules, as he had signed an agreement acknowledging the rules and their consequences.

The Tribunal affirmed the decision under review, finding that Peters had violated the anti-doping rules and that the decision to impose a ban was lawful. The Tribunal rejected Peters' argument that he had been denied procedural fairness and found that the decision to impose a ban was reviewable by the Tribunal. The Tribunal also found that Peters was bound by the anti-doping rules and that the decision to impose a ban was lawful. The Tribunal's decision was affirmed, and Peters' appeal was dismissed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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