Lawyers told to stop “flip flopping” in AFL racism class action

A judge has told lawyers involved in an explosive racism class action against the AFL — led by North Melbourne star Phil Krakouer — to get on with the case, almost a year after it began.

A judge has pressed lawyers involved in an explosive racism class action against the AFL to stop “flip flopping” as they cut their pursuit against all 18 clubs.

Eleven months after the group proceeding, led by former North Melbourne star Phil Krakouer, was lodged in the Supreme Court, the court and the AFL say they remain in the dark about the claim.

At an administrative hearing on Tuesday, Justice Andrew Keogh was critical of the delays, telling lawyers representing Krakouer and other indigenous players the “frequent changes” and “flip-flopping” was stopping the case from proceeding.

He said he had been told in May the plaintiffs would file their pleadings within two weeks.

More than two months on and that was yet to happen, he said, with an indication there will be “substantial alterations to the nature of the claim”.

Phil Krakouer, right, with brother Jim, alleges he suffered injury, loss and damage as a result of the racism. Picture: Michael Klein.

“At the moment we’ve got a situation where the claims you intend to make are not articulated,” Justice Keogh said.

“You haven’t pleaded the material and facts.”

Tim Tobin SC, for the plaintiffs, said the case against the AFL remained the same, in that they were the body who controlled the league and were negligent and breached employment contracts.

But he said they had amended the claim against the clubs, to include only five, as opposed to all 18.

It was not outlined which clubs the action would be proceeding against, only to say they are “linked to the lead plaintiff’s claim”.

The court heard the delays stemmed from the plaintiffs wanting access to further documents, and the broadcasts of some 200 games.

Mr Tobin said they needed the footage to be able to identify the dates, matches and which players were involved in the incidents where racism has allegedly occurred,

“Videos of the matches are important,” he said.

“We’ve sought this early discovery as it will be necessary to have this material to make the pleadings.

“Early discovery would be an efficient way in causing the matter to go forward.”

Phil and Jim Krakouer in the 1980s.

Mark Costello KC, for the AFL, said the league and clubs were willing to help with handing over documents and footage, but not until they had certainty about how the case was going to be put against them.

“The shifting sands of this case are evident in the correspondence,” he said.

Mr Costello told the court they were only notified last week of the reduction in the clubs named in the case.

“They want many, many hundreds of hours of footage,” he said.

“They should articulate their case in a proper way.”

Justice Keogh agreed, saying: “Mr Tobin, you have to articulate your case.

“We can’t deal with issues in preliminary discovery without any understanding of the case.

“We don’t know what your claim is. It is not possible to know what your claim is. It has to be articulated.”

Mr Tobin said he was “surprised” the defendant and the court did not understand the claim.

Justice Keogh gave them a month to file an amended pleading.

The group proceeding, run by Margalit Injury Lawyers on a “no win no fee” basis, covers allegations of player abuse between 1975 and 2022.

Krakouer alleges that he suffered injury, loss and damage as a result of the racism conduct.

Some of the claims have already been aired in court documents including allegations he and his brother, Jim Krakouer, were called “petrol sniffers”, “a--s” and “n-----s” in the 1980s.

The case is expected to return to court in October.