Catherine Ordway Alistair Twigg Snedden Hall & Gallop La Trobe Law School
By Allistar Twigg [1] and Catherine Ordway [2]

In the drawn out process leading to a decision as to whether Hal Hunter decides to sue the Essendon Football Club or the AFL or both (or neither), the Victorian Supreme Court made a formal costs order against Hunter in favour of Essendon in respect of an interlocutory matter. At this stage, the parties have been involved in just the one specific legal issue for nearly 18 months: that of pre-action discovery.

Hunter played with Essendon as a rookie for nearly two years until he was cut and de-listed (and departed Essendon and the AFL) in September 2013. During that period, he was allegedly involved in the now notorious controversy referred to as the ‘supplements program’.

The Court of Arbitration for Sport found 34 Essendon players guilty of using performance enhancing drugs as part of the supplements program. Hunter was not among them.

As a consequence of that same supplements program, Essendon Football Club pleaded guilty to significant workplace breaches and was fined $200,000.

Now Hunter is concerned about his health and wants to know what the consequences of the supplements program are to him. So Hunter and his lawyers want access to all the supplements program documents held by the AFL and Essendon in order to see if he has a case and, if so, whom he should sue. He is doing this by way of pre-action discovery.

Pre-action discovery, which may be granted at the discretion of the court where the ends of justice require, differs from ordinary discovery in litigation, which is an entitlement.

Lengthy and somewhat testy correspondence about the supplements program documents between the parties’ lawyers over a year or so culminated in an application by Hunter for a formal order for pre-action discovery heard by The Honourable Associate Justice Mukhtar in October last year. His Honour found that Essendon had by then handed over every document it had relating to the supplements program.

As a result, on Wednesday 10 February, Essendon applied for and was granted an order for its costs of that October hearing which will likely be of the order of tens of thousands of dollars Notably, however, Essendon will receive no costs for any of its work in the eighteen months leading up to the day before the hearing. The judge formed the view that the late provision of an affidavit by Essendon disqualified it from receiving all of its costs. .

Essendon has been quoted over the last few years as vowing to look after the players involved in the supplements saga. Obtaining an order for costs against one of them seems directly contradictory to this.

The discovery of only a handful of documents by Essendon indicates that record-keeping during the supplements scandal was not a high priority. Yet there are a substantial number of authorities that indicate that poor record-keeping is reflection of negligent practice. Furthermore, a clause in the tripartite contract between players, the AFL and AFL clubs imposes a duty on the AFL and clubs to advance the welfare of the player. It would be impossible to argue that this duty was fulfilled during the supplements scandal.

Essendon and the AFL should take steps to settle this matter, and the other cases that have emerged among the Essendon and former Essendon players caught up in the supplements scandal. In the short term, taking steps to enforce a costs order against a now seemingly struggling ex-player, is not a step in this direction.

[1] Catherine Ordway is a Professor of Practice in La Trobe Business School, specialising in sport management and a Senior Consultant at Snedden Hall & Gallop.

[2] Allistar Twigg is a Sports Lawyer at Snedden Hall & Gallop, and has been involved in the sports industry for more than fifty years.