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AFL lawyer Ben Ihle KC took issue with Tobin’s description that Picken was “totally incapacitated”.
“One matter that I want to correct, or draw issue with, Mr Tobin, on his feet, said Mr Picken had been totally incapacitated. That’s a shift from what has been pleaded in paragraph 43 of his statement of claim,” Ihle said.
“So when it comes to assessing the degree of prejudice, your Honour doesn’t have any evidence of that. You do have the allegations in the statement of claim.”
In a debate with Tobin, Keogh argued “the claim that he [Picken] makes against the AFL is within the scope of the pleading in the Rooke proceeding”.
“So drawing a distinction that the Rooke proceeding is all about expansion of [concussion] knowledge over time, whereas in the Picken proceeding, the AFL had the knowledge, doesn’t help distinguish it. The claim is within the Rooke proceeding,” Keogh said.
Ihle argued the Picken case is “subsumed” by the Rooke case, and should be held as one.
Geelong premiership player Max Rooke.Credit: Paul Rovere
Tobin said Picken’s case – if given the go-ahead to run separately – could go to trial by November, although the serving of a significant injury certificate, discovery, interrogation, the commissioning of “further reports”, and the serving of reports, had yet to be completed.
But Ihle said a trial this year was “unrealistic”. He argued that until the full registered list of players joining the Rooke class action was confirmed, the class action could not proceed. He later added it was too early to consider mediation.
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Ihle said he “wanted to see the matter progress as it should”.
Margalit Injury Lawyers, led by Michel Margalit, lodged the class action claim, with Rooke the lead plaintiff, in March last year on behalf of players employed by one or more AFL clubs between 1985 and 14 March 2023 who either suffered concussion or suffered damage from concussions.
In the claim, it is alleged Rooke “suffered permanent, life-altering injuries as a result of concussion-related injuries, and due to the negligence of the AFL”.
Keogh said he expected to deliver his judgements on the discontinuance bid of the Griffin class action, and the Picken push to remain independent for any class action, by early June.