Court to test AFL’s role in Essendon’s drugs saga

A SUPREME Court judge has ruled that allegations the AFL deceived the public during the Essendon drugs saga should be tested at trial.

AFL CEO Gillon McLachlan at Devonport for TSL crisis talks. PICTURE CHRIS KIDD

A SUPREME Court judge has ruled that allegations the AFL deceived the public during the Essendon drugs saga should be tested at trial.

Justice John Dixon’s decision brings league chief executive Gillon McLachlan, former boss Andrew Demetriou and retired AFL commission chairman Mike Fitzpatrick a step closer to being quizzed under oath over their handling of football’s biggest scandal.

The AFL had sought that parts of the case brought by lawyer Jackson Taylor be heard at a preliminary hearing, limiting the need for witnesses and the discovery of documents.

But Supreme Court Justice John Dixon found against the AFL’s request for two questions in the matter to be the subject of a separate trial.

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Just one question relating to a deed of release will be sent for determination before the case proceeds. Taylor’s lawyers had already agreed to a seperate hearing on that question.

Justice Dixon also ordered the AFL to pay Taylor’s costs in opposing the application.

“The plaintiff (Jackson Taylor) has successfully resisted the application by the defendant,” he said.

“The defendant (AFL) will pay the plaintiff’s costs.”

A hearing into the deed of release entered into by the AFL and Taylor in a previous action brought by the Melbourne lawyer will be dealt with at a date to be fixed.

Justice Dixon said that the questions of whether the AFL was acting in its commercial interests by making statements about the Essendon supplements saga needed to go to trial.

“I accept, as the plaintiff submitted, that the court must determine whether the statements were made in an attempt by the AFL to protect its commercial operations,” he wrote in his judgment.

“The AFL’s business, in large part, depends upon the way it is viewed by the public, because its income is derived from television revenues, membership and ticket sales.

“Controlling the clubs and the competition so that the public have faith in the integrity of the competition may be a necessary part of that activity.”

The AFL had complained that taking the matter to trial would cost at least $700,000 in legal fees for preparation, before court costs were added.

The league would need to seek information from the AFL legal department, its solicitors Minter Ellison, Deloitte, the AFL corporate affairs department and former chief executive Andrew Demetriou.

The AFL also said that Mr Taylor had not been affected by the Essendon matter and that he had only including McLachlan and Fitzpatrick as defendants “to stain their reputations.”

Former AFL boss Andrew Demetriou and former AFL integrity unit manager Brett Clothier face the prospect of being called to give evidence.

The drugs saga returned to the Supreme Court this morning where Justice Dixon ruled on the AFL’s bid to avert a trial over its handling of the six-season scandal.

Human rights lawyer Julian Burnside, QC, is leading the case brought against the league and top brass Gillon McLachlan and Mike Fitzpatrick alleging misleading and deceptive conduct.

Lawyers for the AFL sought a limited trial on preliminary issues restricting the need for witnesses or the discovery of documents, but if that application is dismissed, McLachlan, Fitzpatrick, former AFL boss Andrew Demetriou and former AFL integrity unit manager Brett Clothier face the prospect of being called to give evidence.

No senior AFL figure involved in the Essendon crisis has ever been cross-examined in the witness box.

In an affidavit submitted to the court earlier this year, lawyer Mark Dobbie for the AFL said a full trial could involve eight to 10 hearing days and the discovery of “many, many thousands of documents”.

“I estimate the AFL will want to call between six to eight witnesses,” Dobbie said.

The case alleges McLachlan and Fitzpatrick contravened consumer law by misleading or deceiving the public over the AFL’s conduct in the saga, to protect its commercial interests and reputation.

It centres on a series of public comments, including:

McLACHLAN’S denials that he asked the Australian Sports Anti-Doping Authority to “take bits out” of an interim report unfavourable to the AFL.

McLACHLAN’S denials that he tried to engineer outcomes before Essendon players and officials were interviewed by ASADA and the AFL.

Human rights lawyer Julian Burnside, QC, is leading a case brought against the league and top brass Gillon McLachlan and Mike Fitzpatrick alleging misleading and deceptive conduct.

FITZPATRICK’S denial that he told axed Essendon football boss Danny Corcoran in March 2016 that “your mate (James) Hird will never get back into football”.

Justice John Dixon heard the AFL’s application in March and will hand down his decision in court on Wednesday.

Burnside is representing Taylor, who launched his case in February last year.

Taylor has worked with law firm Arnold Bloch Leibler in Melbourne and was a partner at Latham and Watkins in London.

He has no direct links to the Essendon story but told the Supreme Court in June last year that the proceeding was “a once in a lifetime case.”

In an affidavit, Taylor said: “The relief sought in these proceedings have the potential to contribute significantly to public expectations for the improvement of the AFL’s administration of the code”.

Fitzpatrick made headlines last month by declaring the substances used by Essendon players in 2012 were “almost certainly performance enhancing”.

In an interview on Fox Footy’s Open Mike, the retired AFL commission chairman revealed he was told by a rival player that the Bombers had presented that season as though “they had done five pre-seasons in one”.

“And I think that kind of summed it up,” Fitzpatrick said.

Fallout from the game’s greatest crisis continues with club great Mark “Bomber” Thompson charged by Victoria Police on May 1 with seven counts of drug trafficking and possession.

Former skipper Jobe Watson last week called out his club for being “negligent on multiple levels”, while one-time Bomber Stewart Crameri spoke of the recalled the stress of living through the supplements saga.