The Federal Court case against the Australian Sports Anti-Doping Body has taken a stunning turn, with lawyers for the anti-doping body contending suspended Essendon coach James Hird had claimed there was a "conspiracy" against him.
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In the second directions hearing in front of Justice John Middleton on Wednesday morning, lawyer Dan Starr, acting for ASADA, took aim at the amendments made by Hird in his statement of claim, released on Tuesday.
Starr had particular concern with section eight of the claim, where it was stated that "it was a purpose of the joint investigation that the respondent and/or ASADA obtain a benefit it did not otherwise have under the ASADA legislative regime when conducting an investigation".
Starr said ASADA was "very concerned" by suggestions the anti-doping body had "got around the Act".
"We read an alleged conspiracy," Starr said.
This was denied by Hird's lawyer Nick Harrington in strong terms.
"We are not alleging conspiracy, your honour," Harrington said.
Justice Middleton also did not interpret section eight of the statement of claim as a conspiracy.
"No one is alleging conspiracy," Justice Middleton said.
Hird and Essendon claim the joint investigation between the AFL and ASADA was unlawful.
Justice Middleton has set down a third directions hearing on Friday to determine whether the 34 players issued with infraction notices will join the case and have to give evidence.
David Grace, QC, said the players "are, at present time, not at a point to advise the court whether the players will be joined until the issue of anonymity is resolved".
“The reluctance of players to be involved is solely related to this question of anonymity," he said.
Grace said should players give evidence and their names were publicly released it could cause "irreparable reputational harm". He also said the players had not determined whether they would be a respondent or applicant in the case.
AFL Players Association chief Ian Prendergast told Fairfax Media on Tuesday night the players had begun to work towards a "process" of whether they were willing to join proceedings.
Lawyer Catherine Button called for key documents relating to why ASADA chief Ben McDevitt had issued show-cause notices to be handed over. She said this was important to pressing the case by Hird and the Bombers that the investigation was what she called a "tainted process" and "tainted notices".
Justice Middleton told the Hird camp that he was "content" to allow a subpoena against AFL investigator Brett Clothier, who played a major role in the investigation last year. It's understood the subpoena, at this stage, will only be for documents and not to give evidence in person.
Justice Middleton also ruled ASADA had to hand over copies of its interim report, released in August to the AFL Commission, to the legal teams of Hird and the Bombers. However, the names of players will be redacted.
Justice Middleton wants several issues relating to documents and legal process resolved by July 24.
Outside of the court, Bombers chairman Paul Little said the club was happy with the unfolding events.
"At this point in time, I can't talk about anything that is before the court," he said.
"The issue about whether or not the players are joined is before the court. That will be determined by Friday."
The case will go to trial on August 11.
Hird remains in France on a study tour and is not due back in Melbourne until July 28.
