Pileggi and Australian Sports Drug Agency

[2004] AATA 762

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 762

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/797

GENERAL  ADMINISTRATIVE DIVISION		)
Re		CAROLINE PILEGGI

Applicant

And AUSTRALIAN SPORTS DRUG AGENCY

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date16 July 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..............................................

Ms N Bell, Senior Member

Australian sports drug agency – drug testing ‑ whether request to provide sample – manner in which request was made – whether failure to comply

Australian Sports Drug Agency Act 1990 s17

Australian Sports Drug Agency Regulations 1990  reg 17, reg 37

REASONS FOR DECISION

16 July 2004 Ms N. Bell, Senior Member

1.      The decision under review is the decision of the Australian Sports Drug Agency (“ASDA”) on 29 June 2004, that the Applicant was requested to provide a sample for drug testing and she failed to give that sample as required.

background

2.      The following matters are not in dispute.

·The Applicant is a highly ranked national level athlete in the Australian Weightlifting Federation (“AWF”) shadow Olympic squad;

·On 3 June 2004, the Applicant was training at the Olympic Weightlifting Institute (“the gymnasium”) in Sigatoka, Fiji.  She was selected by ASDA for a drug test, on a no advance notice basis, and the New Zealand Sports Drug Agency (“NZSDA”) was asked to assist in the sample collection process.  Ms Penny Edwards and Mr Vaughan Jones were appointed as Drug Control Official and Drug Control Chaperone respectively (“DCOs”), to collect a urine sample from the Applicant for testing.  There is no issue as to the validity of that appointment.  The DCOs were briefed by ASDA as to the whereabouts of the Applicant and provided with some photographs of her;

·The DCOs attended the gymnasium at approximately 5.20 pm, on 3 June 2004, for the purpose of the sample collection process;

·The Applicant denied her identity in the gymnasium when approached by Mr Jones and said that her name was “Michelle” and that “Carol” would be along later;

·It is also not in dispute that, in the gymnasium, the DCOs did not identify themselves or make a request for a sample to the Applicant;

·After leaving the gymnasium and after the Applicant’s departure, the DCOs made a complaint to the Police about the Applicant’s manner of driving.

3.      What transpired thereafter is in dispute.  The Applicant contends that she became frightened upon being approached in the gymnasium and left the gymnasium.  It was the Applicant’s evidence that the DCOs followed her to her car, attempted to open the door of her car and jumped on the boot.  She contends that at no time did the DCOs identify themselves; state their purpose; or make a request that she submit a sample for testing.  The Applicant said she was not given or shown any form or document and that she left the scene.

4.      The Respondent contends that the DCOs, while pursuing the Applicant after leaving the gymnasium, told her she had been selected for a drug test and, when she had entered and locked her car, showed her identification and a Notification Form containing information about her selection for drug testing.  The Respondent alleged that the Notification Form was placed on the windscreen of the Applicant’s car and told her that the consequences of failing to comply would be serious.  The Respondent contends that the Applicant endangered the DCOs by way of the manner in which she then drove out of the carpark.  The Respondent says the DCOs then left the Notification Form and a booklet concerning the rights of competitors on the ground.

5.      It is not in dispute that only two to three minutes elapsed from the time the DCOs entered the gymnasium, to the time at which the Applicant drove away out of the carpark.

legislation

6.      The relevant legislation is the Australian Sports Drug Agency Act 1990 (“the Act”) and the Regulations made under that Act, the Australian Sports Drug Agency Regulations 1990 (“the Regulations”). Section 17 of the Act provides:

“
Request to provide sample etc.

Manner of making request

(1)       A drug testing scheme may make provision as to the manner in which a request of the kind mentioned in paragraph 11(2)(c) is to be made.

(2)       A drug testing scheme may provide that strict compliance with those provisions is not required and substantial compliance is sufficient.”

7.      Regulation 17 provides:

“
Request to give sample

(1)       The Agency may ask a competitor for a sample orally or by written notice.

Note Section 67A of the Act deals with giving written notices.

(2)       A request for a sample must state:

(a)       the place where the competitor is to give the sample; and

(b)       when the competitor must go to the place for that purpose…

…       (4)       If it would be unreasonable to require the competitor to go to the stated place at the stated time, the Agency may agree with the competitor to collect the sample at a different time or place.

(5)       When asking a competitor for a sample, the Agency must comply with regulation 37.”

8.      Regulation 37 provides:

“
Notice about competitors’ rights etc

(1)       As soon as practicable after the Agency asks the competitor for the sample, the Agency must give the competitor notice of the possible consequences of failing to comply with a request by the Agency to provide a sample.

(2)       The Agency may give the notice orally or in writing.”

9.      The first and primary question to be considered is whether a request to give a sample was, in fact, made.  If the Tribunal finds that a request was indeed made, then it follows to consider whether the Applicant refused to comply with the request.

evidence

10.     Mr Jones' evidence was that he knocked on the driver’s side window of the car and showed the Applicant a clipboard.  Attached to this clipboard was Mr Jones’ identification card, and the notification form, which had already been completed.  There is no evidence that the Applicant looked at it.  He then told the Tribunal that he tore off the notification form and attempted to place it, along with the rights booklet, under the windscreen wiper of the Applicant's car.  Mr Jones stated that he was not successful in doing this, but that he did place the documents on the windscreen of the car.  It was Mr Jones’ evidence that whilst doing this he was yelling his name, that he was from ASDA and that the Applicant had been selected for drug testing.  He stated that he then went to the rear of the vehicle, which was not yet moving, and put his arms out and around the back of the car yelling that the consequences of failing to comply could be serious. The Applicant then, according to Mr Jones’ evidence, reversed the car causing him to jump away.

11.     Mr Jones stated that Ms Edwards had gone to the passenger side of the car and had been yelling at the Applicant from across the carpark that she had been “notified for drug testing”.  Once the car began to reverse, Mr Jones stated, he moved to the front of the car and put his arms up and the car moved towards him.  He said he jumped out of the way and then ran after the car for five to ten metres yelling at the Applicant to “stop, don’t do this, you must do a drug test”.

12.     Mr Jones said the Notification Form from the windscreen was on the ground where the car had originally been.  He told the Tribunal that he picked up the form; entered the time; then removed a copy for himself and left it and the rights booklet on the ground.

13.     The Tribunal notes, and considers it important, that Ms Edwards' evidence was that she could not hear at least part of what Mr Jones said, over the engine noise of the Applicant’s car.  It is also plausible that the Applicant did not hear Mr Jones either.

14.     According to Ms Edwards' evidence, she did not identify herself to the Applicant.  She said that when the Applicant started to move towards the exit of the gymnasium, she followed her and by the time she was at the door, Ms Edwards was a few metres behind her.  Ms Edwards stated that the Applicant ran to her car and that she yelled out to Applicant words to the effect of “Carolyn, you are notified to attend a drug test”.  Ms Edwards repeated the manner and volume in which she alleged she had shouted those words for the benefit of the Tribunal, and the Tribunal notes that her voice, in ordinary conversation, is clear and distinct and that when she shouted it was very loud.

15.     The five athletes who provided evidence all deny having heard any words spoken by Mr Jones or Ms Edwards outside the gym, other than, "Caroline" and "stop."  None of the athletes, according to their evidence, saw Mr Jones with any papers or saw him placing anything on the windscreen of the car the Applicant got into. 

16.     The Applicant emphatically denied hearing any advice of notification; the names of the DCO’s; seeing the notification form; Mr Jones' identification card, or the rights booklet.

17.     The Applicant stated she does not know why she denied her identity to Mr Jones when he said her name, except that she had noticed a man she thought might have been following her, in the market the previous day.  She told the Tribunal that Mr Jones was dressed informally and was carrying a shoulder bag.  The Applicant said she did not feel safe and strolled to the door of the gymnasium.  She said she heard her name called and commenced to jog lightly to her car which she had left unlocked.  It was the Applicant’s evidence that Mr Jones and Ms Edwards said “Caroline, stop”, as she had reached just outside the door and that they were running.  She stated that she got in her car and locked the doors.  The Applicant stated that the woman was on her left, outside the car, and the man was on her right.  She told the Tribunal that both were banging on the windows of her car.  The Applicant stated that Mr Jones was banging on the boot as she reversed out of the car park.

18.     The Applicant told the Tribunal that she then drove to Nandi and stopped at McDonalds to have a drink.  It was from here that she telephoned Mr Paul Coffa, the operator of the Gymnasium, and at whose residence she was staying.  The Applicant said she had stayed with him once before in 2003, for three to five weeks, when training and competing in Fiji.  She said Mr Coffa told her the Police had been to his house in relation to the DCOs’ complaint about her driving.  She then returned to his house.

19.     The Applicant said she attended the Police Station with Mr Coffa at about 10:00 pm and that the Police mentioned drug testing.  She said she wanted to contact the DCOs but the Police would not give her their contact details and told her that they would be back at the Police Station at 9:00am the following day.  The Applicant stated that she returned to the Police Station at 8:45am the next day and again later that afternoon, but the DCOs were not present.

20.     The Applicant described the eight or so weightlifters present at the gymnasium on 3 June 2004, as physically capable and able to “handle themselves”.  She also agreed that she had worked as a bouncer.  The Applicant stated that she had not mentioned the incident at the market, or another incident near the bank, to anyone until she gave a statement at the Police Station.  She later said that she had mentioned those incidents to Mr Coffa’s wife in passing. 

21.     The Applicant said that when she left the car-park she had a mobile phone with her and Mr Coffa was the first person she spoke to after the incident.  She said she did not contact the Police about what had happened.  The Applicant told the Tribunal that she was simply “spooked” by the incident and was not in fear of her life.  She stated that she has been drug tested on about 70 occasions and has never refused a test.

22.     It was submitted by Mr Marshall for the Respondent, that the Applicant's evidence was motivated by the fear of the consequences of an entry on the Register of Notifiable Events.  The Applicant’s conduct, in denying her identity, remains partly unexplained by her and is at best foolish, and at worst, suggestive of guilt.  If denying her identity was an attempt to evade testing, it was clearly doomed to failure.  It may have been borne of fear arising from having perceived that she was being stalked, as was her evidence.  The Tribunal notes, however, that the Applicant was in the company of a number of weightlifters, had herself worked as a bouncer and had not mentioned the earlier incidents of being followed to anyone except casually in passing.

23.     In any event, the Tribunal is satisfied that following her denial of her identity, the Applicant behaved in an extreme way, made worse perhaps by her being pursued by Mr Jones and Ms Edwards.  For their part, Mr Jones and Ms Edwards failed to identify themselves upon first approaching the Applicant. Their evidence was that they were made doubtful by the Applicant denying her identity.

24.     The DCOs’ response to the Applicant leaving the gym was itself somewhat extreme, although understandable.  They had less than two minutes, or thereabouts, to attempt to identify themselves; to advise the Applicant she had been selected for testing; to give her the notification form; to advise her of the consequences of failure to comply; and to give her the booklet advising her of her rights.  All of this, except perhaps Ms Edwards’ advice to the Applicant that she had been selected for testing, had to take place at high speed, through locked doors and over a running car engine.

25.     Mr Jones and Ms Edwards' evidence of what they did and said could be argued, as was submitted by Counsel for the Applicant, to be motivated by a desire to appear to have discharged their duties as officials.  The Tribunal has no doubt that this was their intention, it is also considered likely that the behaviour of the Applicant, the extremely short time they had between leaving the gymnasium and the Applicant driving off, significantly marred their effectiveness.  The Tribunal considers, however, that they were intent on discharging their duty and this lends weight to their evidence of the steps they took in order to do so.

26.     The Tribunal considers that the evidence given by five of the weightlifters present at the Gymnasium on 3 June 2004, is of limited probative value.  These witnesses had vantage points from the double doors of the gym, and the window of the gym.  I note that Mr Jones was, according to the evidence of many, on the driver's side of the car, which was the side of the car furthest from their vantage point.  In most cases, they had made only partial observations of what occurred in the car park during the key period of time, some of them having arrived at their vantage point after the Applicant had got into her car and all of them having commenced their observation of the car park after the Applicant and Ms Edwards had entered it.  Remarkably, all they heard, according to their evidence, were the words “Carolyn” and “stop”.  It is also of note that notwithstanding their professed concern about the Applicant, her frightened appearance and her hasty departure, their evidence was that they simply resumed training and have not discussed the matter much since then.  The Tribunal notes that they reside together in Fiji, at premises owned by Mr Paul Coffa.

27.     The Tribunal is satisfied that words to the effect of those attested to by Ms Edwards to have been spoken by her, were indeed spoken by her to the Applicant in the car park.  The Tribunal is also satisfied that attempts by Mr Jones to show documents to the Applicant were made by himin the manner he attested to.  Each has corroborated the other’s evidence in these respects and it is inherently likely that, being intent on doing the job they had been sent to do and each being experienced in that job, they took these steps. Bearing in mind the principle in Briginshaw v Briginshaw (1938) 60 CLR 336, and the seriousness of the consequences to the Applicant of a finding contrary to her evidence, along with Ms Edwards’ inability to corroborate Mr Jones evidence as to the words spoken by him, the Tribunal cannot be satisfied of what Mr Jones said to the Applicant whilst she was in the car park or that it was heard by her.

28. The question remains whether the words spoken by Ms Edwards and the showing of the Notification Form and identity card to the Applicant and the placing of the form and the rights booklet on the windscreen, amounted to a request to supply a sample in accordance with the Act and the Regulations far as they apply.

29.     Counsel provided me with some authorities on the question of what generally constitutes effective service.  I had regard to the decision of Hope v Hope (1854) 43 ER 534 which requires that a person be made aware of the nature of the document being served.

30.     I also had regard to the decision of the Federal Court in Re Elkateb;  Lawindi v Elkateb (2001) 187 ALR 479 to the effect that effective service requires that a person be informed of the nature of the document, that it is appropriate to take into account the history of the dealings between the parties in assessing whether the person was so informed and that, if a person refuses to accept service of a document, service may be effected on the person by putting it down in his or her presence and telling him or her the nature of it.

31.     I consider that the Applicant was made aware of the nature of the documents, given the words spoken by Ms Edwards, the Applicant's experience of some seventy previous testing requests, and the associated procedure.  The Applicant's evidence was that she was frightened, but she also stated in her evidence that she was not in fear of her life and was simply “spooked”.  I note and accept Ms Edwards' evidence that her words were shouted, and there is no evidence that the Applicant was so fearful that she would not have been able to hear what was said to her in the car-park.  In view of the above authorities, I consider that service of the Notification Form and the rights booklet was effected upon the Applicant.

32.     There is no argument that the notice form does not strictly comply with the requirements of Regulation 17, and I am satisfied that it does conform with those requirements, given that it contained details of the time and place at which the Applicant was to attend to give a sample.  In addition, the rights booklet was also served on the Applicant in compliance with Regulation 37.  I therefore conclude that a request, in accordance with the Regulations, was made. 

33.     I also consider that by leaving the car park and not attending as required in the notice given to her, the Applicant failed to comply with the request.

34.     For these reasons the decision under review is affirmed

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         Linda Blue
  Associate

Dates of Hearing  15 and 16 July 2004
Date of Decision  16 July 2004
Counsel for the Applicant           Mr S. Tatarka
Solicitor for the Applicant            Meerkin and Apel Lawyers
Counsel for the Respondent      Mr J. E. Marshall
Solicitor for the Respondent       Moray and Agnew Solicitors