I’ve been in plenty of courtrooms in my time but few — if any — where there was such a stunned post-judgement silence as between the stark walls of court one in the Federal Court in Melbourne last Friday afternoon following Justice John Middleton’s decision in the case bought by the Essendon Football Club and coach James Hird against the Australian Sports Anti-Doping Authority (ASADA).

For those who’ve been living under a rock for the past week, Middleton swatted Essendon and Hird from his court with his 122-page judgement like a couple of  stray blue-arsed flies.

Many in the public and the ‘popular’ press reckon that should be the end of the story. Hird and Essendon made a flawed attempt at rocking the ASADA boat and failed miserably.

For the baying crowds and their boosters in the media Middleton J’s judgement represents a vindication for ASADA and its former CEO Aurora Andruska and is such a comprehensive analysis of the facts and law that it would withstand any challenge. Hird and Essendon have been comprehensively defeated and should leave the field, pelted with rocks and rotten fruit with their heads hung in eternal shame.

But for many who have read all of Middleton’s judgement it is a fundamentally flawed judgement that should — indeed must — be appealed.

Why? Let me try to explain.

Earlier this week I spoke with a senior Federal court judge who lamented the tendency of some few of his colleagues to deliver long and complex judgements that are incomprehensible to the general public — for whom the courts are but mere servants.

Justice Middleton’s Essendon judgement is a prime example of verbosity for its own sake. While it is fair that a complex case is resolved by a complex judgement, surely it falls to judges to make these complex cases comprehensible not just to the parties to the litigation but also to the general public?

In 2012, Justice Susan Kiefel of the High Court of Australia delivered a speech at the Sir Harry Gibbs Law Dinner at the University of Queensland. In her speech entitled “Reasons for judgment: objects and observations she made some astute observation about the art of judgement writing.

Justice Kiefel observed that for Sir Harry, the essential quality was clarity:

 …  the second is as much brevity as the subject will permit.

What gives the judgment its style is the lucidity, accuracy and economy of the language used, the logical coherence of the thought and the rejection of the irrelevant.

Justice Middleton’s judgement fails to meet Her Honour’s modest test.

It is too long with many extracts from legislation, judgements and correspondence replete with “emphasis added” references apparently meant to direct the reader to the important points contained therein. A more user-friendly and effective approach would have been to summarise the points made in these extracts. This would have lost none of their relevance and provided lay-reader and lawyer alike with a more lucid, accurate and economical judgement that was still logical and more coherent. Middleton’s 122-page judgement could have been trimmed by two-thirds and still made all the points he needed to make.

One issue the fervid commentators have seized upon is Middleton J’s vindication of former ASADA CEO Aurora Andruska, who he noted (at paragraph 70) was:

The only witness whose credit was impugned … It was submitted by Essendon and Mr Hird that Ms Andruska was non-responsive, evasive and partisan. It was observed, as was the fact, that there were long pauses between the questioning of Ms Andruska and her responses.

In their closing submissions Hird and Essendon asserted that Andruska, ASADA’s key witness, was:

… non-responsive, evasive and partisan. She frequently avoided answering the question asked, instead giving speeches to persuade the court of the validity of ASADA’s course of action under her stewardship. Ms Andruska sought to disassociate herself from decisions that were not formally put to her in writing. The Court will also have noted Ms Andruska’s long pauses (which are not recorded on the transcript) before answering questions, the answer to which would not assist ASADA’s case.

Middleton J’s forceful defence of Andruska and her evidence has apparently ‘ring-fenced’ any chance of an appeal because appellate courts rarely challenge a trial judge’s assessment of a witnesses credibility.  But Andruska’s credibility would in my view never have been relevant to an appeal.

For mine Middleton J’s most serious obvious error is that he has put the contractual cart before the statutory horse.

Essendon’s case was — as Middleton J notes in the headnotes to his decision — based upon statutory interpretation.

The well-settled Australian approach to statutory interpretation rests on three pillars of text, purpose and context.

In 2009, soon after he retired from the bench, former High Court Judge Michael Kirby gave a speech entitled “Statutory Interpretation: The Meaning of Meaning” in which he noted that:

During the past decade or so, the High Court of Australia has unanimously endorsed other principles as necessary to the accurate reading of legislation. Amongst the most important of these principles have been:

* That where the applicable law is expressed in legislation the correct starting point for analysis is the text of the legislation and not judicial statements of the common law or even judicial elaborations of the statute;

* That the overall objective of statutory construction is to give effect to the purpose of parliament as expressed in the text of the statutory provisions10; and

* That in deriving meaning from the text, so as to fulfil the purpose of parliament, it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. (emphasis added)

Word around the traps is that the most successful ground for an appeal by Hird and Essendon is that Middleton J substituted the text of the contract between Hird (and the 34 Essendon players) and the AFL for the text of the ASADA legislation.

The key here is that ASADA, as Middleton J explained at paragraph 10 of his judgement, gained from the AFL contracts, what it did not have in it’s statute:

… the benefit of what the AFL had, namely the contractual power of the AFL:

(a) to compel Essendon players and personnel to participate in an AFL investigation and to attend an interrogative interview; and

(b) to direct, under threat of AFL sanction, that an Essendon player or personnel respond and answer every question asked of him or her.

Whether ASADA should have such compulsive powers has long been controversial. In 2013 the Australian Sports Anti-Doping Authority Amendment Bill 2013 sought, among other things, to provide ASADA with the power to compel those that fell within the anti-doping regime to give evidence. As the Parliamentary Bills Digest explained:

ASADA’s role and powers have been contentious from the beginning, with the Australian Olympic Committee (AOC) raising concerns that there are contradictions in their extent and content. As the AOC noted in its submission on the Bills to establish ASADA, on one hand the authority appeared to have excessive powers in that it was not required to put allegations of doping to an independent hearing before declaring an athlete guilty. Similarly, once an investigation was complete, ASADA alone had the power to determine whether an athlete should be sanctioned. On the other hand, the body had been given no powers of compulsion; athletes and others could not be compelled to give evidence before its inquiries.

A number of instances during the next three years suggested that the AOC’s concerns may have been justified, but the Howard Government did not attempt to resolve what appeared to be an inherent conflict between the rights of athletes and the need for ASADA to have adequate powers of investigation and compulsion in dealing with doping matters.

Green’s Senator Richard Di Natale — well-informed and passionate about the need for an appropriate and fair regime to control anti-doping administration — was scathing about the Bill’s proposal to give ASADA compulsive powers:

The government’s bill would give ASADA the power to take a footy player off the street and compel them to answer any question. People facing criminal investigations will have more legal protections than a player at the Essendon Football Club, or the Cronulla Sharks.

Di Natale ‘s view prevailed and ASADA did not get the power to compel those falling within its anti-doping regime to give testimony.  In Essendon’s case ASADA had no powers to force people to answer questions –- this was entirely consistent with Parliament’s intention to establish an anti-doping agency that was independent, that respected fundamental common law rights and conducted its investigations in private — not in the glare of the media’s spotlights. ASADA’s work-around was to overcome the restraints Parliament placed upon it by conducting a joint investigation with the AFL. 

Middleton J has found that the joint investigation was legal but the key for Hird and Essendon on appeal will be to unpick what many regard as Middleton J’s innovative approach to statutory interpretation and persuade an appellate court that the judge got it terribly wrong.

Martin Hardie, legal academic and anti-doping researcher at Deakin University reckons that if Middleton J’s judgement is allowed to stand as good law, chaos and trial-by-media will prevail:

In establishing ASADA Parliament was aware of the danger of allowing sporting bodies – like the AFL — to be involved in anti-doping investigations.

ASADA was established as an independent investigatory body that had to respect the rights of athletes and which conducted its investigations in private. The ASADA Act was designed to keep the process confidential until a final outcome before a sporting tribunal.

This process acted to protect athletes and support people from being pronounced guilty by the media or others prior to having a fair hearing. By condoning what he called innovative techniques which have no statutory basis Justice Middleton has sanctioned trial by ordeal and media as the future norm in Australian sport.

If his decision stands never again will any person the subject of an anti-doping assertion have the ability to defend themselves fairly.

As we have already seen sportsmen and women will be judged and condemned by an ill-informed media and public well before any fair hearing ever occurs.

This situation, designed to prosecute the ‘just war on doping’ would be as much a threat to our society’s fundamental principles as is the war on terror.