Kennedy v Anti-Doping Rule Violation Panel [2015] FCA 411

FEDERAL COURT OF AUSTRALIA

Kennedy v Anti-Doping Rule Violation Panel [2015] FCA 411 Citation: Kennedy v Anti-Doping Rule Violation Panel [2015] FCA 411

Appeal from: TVDB v Anti-Doping Rule Violation Panel [2014] AATA 967

Parties: MARTIN KENNEDY v ANTI-DOPING RULE VIOLATION PANEL and CHIEF EXECUTIVE OFFICER, AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY

File number: NSD 68 of 2015

Judge: ROBERTSON J

Date of judgment: 5 May 2015 Catchwords: PRACTICE AND PROCEDURE – appeal from a decision of the Administrative Appeals Tribunal – discontinuance of appeal – appropriate rule

Legislation: Federal Court Rules 2011 (Cth) rr 26.12, 33.31

Date of hearing: In chambers

Date of last submissions: 30 April 2015

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 10

Counsel for the Applicant: Mr M Higgins

Solicitor for the Applicant: Unsworth Legal

Counsel for the Respondents: Mr PM Knowles

Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 68 of 2015

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MARTIN KENNEDY

Applicant

AND: ANTI-DOPING RULE VIOLATION PANEL

First Respondent

CHIEF EXECUTIVE OFFICER, AUSTRALIAN SPORTS ANTI-DOPING AUTHORITY

Second Respondent

JUDGE: ROBERTSON J DATE: 5 MAY 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This was an appeal from a decision of the Administrative Appeals Tribunal made on 31 December 2014. The notice of appeal to the Federal Court was filed on 29 January 2015. 2 An interlocutory application that the name of the applicant not be published was also filed on 29 January 2015. 3 The first case management hearing was held on 18 February 2015. 4 A supplementary notice of appeal was provided on 26 February 2015. 5 On 3 March 2015 the interlocutory application came on for hearing but was adjourned, part heard, on the applicant's application, to 13 March 2015. I made an order that the applicant file and serve on the respondents any further evidence in support of his interlocutory application by 9 March 2015. 6 However, on 11 March 2015 I made orders by consent that the applicant's interlocutory application filed on 29 January 2015 be dismissed and that the costs of the interlocutory application be costs in the cause. 7 On 3 March 2015 I also made orders so that the appeal could be listed for hearing on a date to be fixed on or after 23 June 2015, together with consequential orders. 8 On 30 April 2015 the applicant filed a notice discontinuing the whole of the proceeding by consent and on the basis that, by consent, each party bears their own costs of the proceeding. Notwithstanding the references in that notice of discontinuance to r 26.12 of the Federal Court Rules 2011 (Cth), I will treat that notice as having been filed under r 33.31 which is the specific rule dealing with appeals from the Administrative Appeals Tribunal. 9 Under r 33.31(1)(a), in the present circumstances, before the hearing of the appeal, the Court's leave is not required and by r 33.31(2) the notice of discontinuance has the effect of an order of the Court dismissing the applicant's appeal. 10 This proceeding is therefore now concluded. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.