Cronulla’s legal advice on ASADA kept confidential: Cronulla-Sutherland District Rugby League Football Club Ltd v Nationwide News Pty Ltd [2013] NSWSC 494

The biggest news in Australian sport this year has been the investigation by the Australian Crime Commission and the Australian Sports Anti-Doping Authority (ASADA) into the alleged use by athletes and members of sporting teams of peptides and similar so-called alleged performance enhancing products.

Cronulla Sharks

Cronulla Sharks

While players from the Essendon Football Club in the AFL have recently been interviewed by ASADA, in terms of the National Rugby League, the club that seems to be most in the spotlight is the Cronulla Sharks. The Club retained a former judge of the Industrial Relations Commission, the Honourable Dr Tricia Kavanagh to conduct an inquiry in relation to its team. Dr Kavanagh provided a report, and Justice Fein indicated that it was really just a chronology with an accompanying summary.

Anyway, on 27 February 2013, the Club’s solicitor, Mr Darren Kane gave a written advice and on 6 March 2013, another advice was given by Mr Allan Sullivan QC.

The Club claimed that the defendants (the publisher of the Daily Telegraph and a number of its journalists) published material from the Kane Advice, particularly in 13 items on 26-27 April, and that they indicated that they intended to publish future material from those advices. The Club sought the extension of an injunction to prevent the publication of that material, on the basis that the material was confidential legal advice. The Club did not seek to restrain any material from the Kavanagh report.

Justice Rein examined the advices and concluded that all 13 items were taken from the Kane advice, and that none of those 13 items were referred to in the Kavanagh report. There was still a question whether the defendants had the advices and no documents were produced by them after the plaintiff served a notice to produce them. It was noted that the journalists might have transcribed portions of the advice.

There was evidence that the defendants were intending to publish the advices in the future. In a radio interview on 27 April 2013, the second defendant, a journalist stated that:

  • There was a lot more to come in the next couple of weeks;
  • The report was leaked, and another lawyer had gone over the Kavanagh report and added to it with the possible legal ramifications for the Club’s Board;
  • The document was identified as a 60-page document;
  • It was not reported but would be in the following week, once it was legalled.

Justice Rein concluded that it was clear that the material published came from the Kane advice and that it was confidential advice given by a lawyer to his client. There was sufficient material to establish that some of the defendants knew that this was the case.

The defendants argued that the advices were not confidential because they had been identified in previous publications in the public domain. That argument was rejected. While there was no clear evidence that the defendants had the Sullivan advice, there were several indications that this was the case.

While the defendants had not explained exactly what they held, Justice Rein still concluded that the Club was entitled to an order preventing any further publication of any of the legal advice given by Mr Kane or Mr Sullivan.

So for now, the players and Clubs all around Australia still wait for ASADA’s findings. The media no doubt, will be holding their front pages when the time comes.

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