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by Lisa Albergo reporting for AFANA from Chicago

In September of 2015, prominent Melbourne attorney Jackson Taylor filed court action against AFL CEO Andrew Demetriou, then assistant CEO Gil McLachlan and then chairman Mike Fitzpatrick over the league's handling of the Essendon supplements saga. In his motions, he cited the league for deceptive practices, misleading the public on the of the joint investigation, and their own responsibility regarding player health and safety.

(see full story "AFL Sued"at https://www.afana.com/news/2015/09/03/afl-sued-over-essendon-saga).

Taylor's suit has been upheld by the Australian Supreme Court. Supreme Court Justice John Dixon ruled in favor of Taylor on two key issues having to do with Australian consumer laws and whether part of the case, as the AFL had argued, should be held as a mini-trial to cut expenses – estimated by the league to cost $700,000.  Taylor did not want a preliminary hearing.

Taylor's lawyer, Julian Burnside, had argued a limited or mini-trial before a trial would not be the best way to decipher the facts on whether the league had acted to protect its commercial interests. Taylor had alleged McLachlan and Fitzpatrick had breached consumer law by engaging in deceptive conduct during the scandal. As reported in the 2015 story, he alleged that the AFL continued to promote the club and finals to sell tickets in 2014 despite the fact that they were already planning on excluding Essendon (who had finished in eighth position) from the finals. Taylor also alleges that statements by the AFL during the investigations were misleading or deceptive, He used comments (not reported in this story) made by McLachlan on TV and radio to back up his allegations. And he claims several statements made by AFL executives – about former Essendon coach James Hird, player welfare, an interim report by ASADA and the AFL's decision-making – are examples of that detrimental conduct. This includes McLachlan's denials that he had asked ASADA to “take bits out” of an interim report that had not been favorable to the AFL.. One claim is that McLachlan attempted to reach an outcome before players and Essendon officials had been interviewed by ASADA and the AFL. Taylor was also critical of former chairman Fitzpatrick regarding Fitzpatrick's comment that former coach James Hird would "... never be allowed back into football". 

In handing down his decision, Justice Dixon said, "I was not persuaded to accept the defendants' [AFL] submission that a finding could be made on this particular issue following contained discovery, limited by issues of relevance, materiality and proportionality. That the AFL was, or was not, acting to protect its commercial interest is relevant to defining the scope of discovery, “I accept ... that the court must determine whether the statements were made in an attempt by the AFL to protect its commercial operations. “The AFL’s business ... 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.”

He also questioned their extensive involvement in the investigations, "There is an appearance that the presence of Mr McLachlan and Mr Fitzpatrick is gratuitous despite being probable witnesses for the AFL, “The plaintiff submitted Mr McLachlan and Mr Fitzpatrick's presence in the litigation and the proper resolution of those questions depends on what the evidence ultimately reveals about the reasons they engaged in the conduct in circumstances where it was important to understand the AFL's intention in making those statements through its two senior executives. The plaintiff says that these factual questions can only be explored properly after discovery and on the basis of evidence from witnesses at trial.” Justice Dixon also ruled that the AFL would have to pay all court costs. 

Taylor, who has no direct links to Essendon, works at a Melbourne law firm and was a partner with a London law firm. He told the Supreme Court last year that this case was " ... a once in a lifetime case" and said in an affidavit: “The relief sought in these proceedings have the potential to contribute significantly to public expectations for the improvement of the AFL’s administration  ...".

Should the case go forward, McLachlan and Fitzpatrick could be required to testify. Neither they nor Demetriou were ever required to give evidence during the ASADA and WADA hearings. 

Source: theage.com.au

Article last changed on Tuesday, June 12, 2018 - 3:48 PM EDT


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