Sorry Saga - “It’s actually quite funny people thinking they know more than they actually do”


#5468

Sounds like a disease you get from hanging around Carlton people.


#5469

Well I assume the answer is yes. But it’s xxxx so I can say thanks mate is more the point.


#5470

I guess by deduction and the threads of the cable, the whole of the AFL should have been suspended. One in all in, according to CAS


#5471

According to CAS’ Masters WADA


#5472

The judgment is now up on the net.

Its conclusions:

32 I accept, as the plaintiff submitted, that the court must determine whether the statements were made in an attempt by the AFL to protect its commercial operations in order to determine the preliminary question. The AFL’s business depends in large part 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.

33 The importance of the context in which the conduct was engaged in is clear from SingTel Optus Pty Ltd v AFL.[15] Optus complained that the AFL engaged in misleading or deceptive conduct by its then CEO, Mr Demetriou, making public comments to the effect that Optus is engaging in illegal activities by operating a television recording service called ‘TV Now’. Edmunds J concluded that Mr Demetriou’s statements were not conduct ‘in trade or commerce’ and had they been, they were neither misleading nor deceptive.

34 Edmunds J concluded that Mr Demetriou’s comments were part of an ongoing narrative about media rights to sporting events in the context of technological change. He was engaged in a campaign to persuade all sides of the political framework, as well as a wide spectrum of Australian sporting bodies, that amendment was needed to copyright laws.

35 Context will be relevant in the assessment of whether the defendants’ conduct in making the statements was an aspect or element of activities or transactions that bore a trading or commercial character. The defendants will contend that the conduct, put against them at its highest, was no more than concerning trade or commerce or in relation to trade and commerce and fell short of actually being in trade or commerce. Rather, it was conduct in the context of investigation/disciplinary processes that is not commonly found to be in trade or commerce.[16]

36 However the circumstances of this case, once fully identified and explored, may be distinguishable from those ordinarily arising out of disciplinary enquiries. The AFL’s activities are different in nature from the areas of commerce considered in other cases, a distinction that simply stresses that the inquiry as to whether conduct is in trade or commerce is fact sensitive. In that context, I bear in mind the complexity of the events evident from the brief chronology set out above.

37 It may be open to the plaintiff to demonstrate from evidence led in that context that AFL football is a commercialised sport at the epicentre of a discrete part of the entertainment industry. What the AFL provides is the basis for many commercial transactions. On the other hand, circumstances indicating the statements were not in furtherance of a commercial motivation may show that the statements were not misleading. The question is best resolved by reference to the whole of the evidence to be adduced in the proceeding. A preliminary determination would necessarily deprive the plaintiff of the benefit of all of the evidence that is relevant to those questions and which would be available and considered at the trial of the proceeding.

38 Accordingly, I am not persuaded that the issue of whether the conduct was in trade or commerce can fairly be determined as a preliminary question divorced from the determination of whether the conduct was misleading. The utility, economy and fairness to the parties of a preliminary determination are not beyond question. It is inappropriate to consider preliminary determination of questions based on contestable facts. That finding is sufficient to deny the defendants a preliminary determination of the first question.

The second proposed question

39 The second question raises the issue of whether the statements were honestly held opinions or could not have induced error. Because the statements formed part of a long ongoing public narrative about disciplinary procedures against certain members of the EFC, those statements were not promotional in the sense referred to by the High Court in Concrete Constructions. Whether the statements are capable of being likely to mislead requires characterisation of the conduct of the defendants in all of the circumstances to ensure that the particular identified statements are considered in their proper context.

40 On the basis of the material presently before the court, in particular the proposed admissions, I cannot see that the proper context for the evaluation of the statements can be appropriately and fairly determined in a preliminary hearing for the reasons already given. Substantially for the reasons given in respect of the first question, I am satisfied that it is not appropriate to order a separate determination of the second question.

Other matters

41 The defendants emphasised that the plaintiff has neither suffered damage nor been personally affected by the conduct alleged. The plaintiff has no direct/indirect financial interest in prosecuting his claim and he brings the proceeding in the ‘public interest’. Beyond engaging in proscribed conduct, assuming that be the finding at trial, the FASOC does not allege material facts establishing the need for corrective advertising to be ordered by mandatory injunctive relief or the content of such advertising.

42 Moreover, no connection was evident between the relief sought and the joinder of the first and second defendants into the proceeding. The defendants submitted that the plaintiff is pursuing an improper motive by that joinder. There was no issue that each of them was relevantly a directing mind of the AFL, which must, and did, accept responsibility for their conduct. The defendants contended that the only identifiable purpose in including Mr McLachlan and Mr Fitzpatrick personally as defendants was to stain their reputations. The defendants contended these matters brought into question the plaintiff’s motives in the litigation.

43 The first and second defendants have been vexed by the allegations contained in the FASOC since at least 1 July 2015, and by seven iterations of the statement of claim being served as the plaintiff attempted to formulate his claim.

44 The plaintiff responded, and I agree, that joinder of individuals who are the directing minds of corporate defendants is not uncommon in litigation and in particular in litigation under the ACL. That said, whether there was some merit in the defendants’ contentions will be a matter for the trial judge given the relief that is sought in the proceeding and doubts as to whether it would be seriously contended at trial that the first and second defendants should pay for corrective advertising. The material before the court does not warrant a finding that those defendants are vexed by the proceeding.

45 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. The plaintiff added that it is unlikely that Mr McLachlan or Mr Fitzpatrick will be held individually responsible for any costs, given they are represented by the same lawyers and counsel as the AFL.

46 The court has ample power in its inherent jurisdiction and under the Civil Procedure Act to protect the first and second defendants. To the extent that such protection may involve security for costs, the defendants have orders for security to some extent and are at liberty to seek greater protection. These matters do not warrant forming a different view on the utility of a separate determination of the identified questions.

Conclusion

47 The application for preliminary determination of the proposed questions 1 and 2 is refused. I will order that the court determine pursuant to r 47.04 whether the claims made by the plaintiff in the FASOC are barred by the terms of the Deed. I invite the parties to submit a suitable minute of appropriate directions to prepare that question for determination on a date to be fixed and I will hear counsel on the question of the costs of the application.


#5473

John Faine ABC Radio 774 will be talking about JT v AFL after 10am today in his footy preview segment. Usually with Peter Gordon.


#5474

BEFORE 10:00am - in fact now!


#5475

And?


#5476

Gil was on with Neil Mitchell this morning. Presented as very blasé about the proceedings and suggested it was a waste of money. And happily suggested EFC had moved on.


#5477

Yeah, sorry about that. Caught me out also.
I did record it but have no idea how to make it available.
Faine was dismissive and Gordon more or less describe the function and the aim. Fairly bland overall.
No wild assertions about personalities.


#5478

That’s the line the banks ran with before the Royal Commission started


#5479

Anyone listening to Mike Sheahan, Sam Newman and Grant Thomas’ podcast? Might be of interest to Blitz as in the latest episode all three say they recognise Jobe as the Brownlow medalist.


#5480

Starts at about 1:13 in


#5481

Link?


#5482

https://www.google.com/search?client=safari&rls=en&q=Mike+Sheahan,+Sam+Newman+and+Grant+Thomas’+podcast&ie=UTF-8&oe=UTF-8


#5483

BTW it’s just a passing comment


#5484

Hopefully will be uploaded as a podcast


#5485

NW. Happy to give those 3 a go & have a listen.


#5486

“Essendon have moved on, I told them to cos if they didn’t we will fine them more and impose more penalties so they’re happy to just leave it”


#5487

Oh, it’s right up Blitz’s alley. Two old men bitter about football give a gobful to another old man who’s in the football media.