Shane Tuck’s widow has accused the AFL of acting selfishly by requesting a new coroner for the inquest into the death of her husband.
Katherine Tuck’s lawyers say the AFL is “forum shopping” by asking Victorian coroner Simon McGregor to remove himself from the investigation because his brother works with the AFL Players’ Association.
Forum shopping is a colloquial term for the practice of people having their legal case heard in the court thought most likely to give them a favourable judgment.
“This is a desperate attempt by the AFL to shut down a valid inquiry,” former player manager Peter Jess told 7NEWS.
Tuck, who played 173 games for Richmond, died aged 38 last July after a severe battle with his mental health. An autopsy found he had chronic traumatic encephalopathy (CTE).
The inquest into Tuck’s death is expected to expose the impact of concussion in the game, and AFL is desperate to avoid a massive class-action lawsuit.
The league’s request of McGregor to leave the inquest comes two weeks after he made inflammatory comments on the topic.
McGregor said research had shown a correlation between the “genuine risk of profound lifetime injury in a profit-motivated workplace, with a high turnover of young people”.
McGregor acknowledged at a directions hearing earlier this month that his brother acts as a psychologist with the AFLPA and gave all parties two weeks to raise any objections of his involvement.
He added his brother, Matthew McGregor, had referred Tuck for medical appointments but never directly treated him.
The AFL’s lawyers then asked McGregor to remove himself from the probe and refer the matter to another coroner, according to documents obtained by the Herald Sun.
“At the outset, my client, the AFL, wants to make clear that it welcomes the opportunity to assist the Coroners Court of Victoria in relation to its investigation of Mr Tuck’s death and issues that may be relevant to it, including Mr Tuck’s diagnosis of CTE,” lawyer Kieran O’Brien said.
“The AFL is committed to learning as much as it can from this process as the health and safety of players is of paramount importance to it.
“In the circumstances, we are of the view that a fair-minded and independent observer could reasonably conclude that there was a real possibility that your honour would be impeded, by reason of your close familial relationship with Dr McGregor, from bringing an independent and impartial mind to this investigation, including in relation to making decisions as to its scope.
“This first-degree relationship could only serve to undermine public confidence in the coronial process in this important case, and perhaps more generally.”
A counter-submission was then filed on behalf of Katherine Tuck.
“The application made by the solicitors for the AFL is misconceived, indeed entirely without merit, and should be rejected,” lawyer Greg Griffin said.
“We of course act for the widow of the deceased. The death of her late husband has had an overwhelming effect upon both herself and her family.
“Notwithstanding our surprise by some of the submissions of the AFL, and all those of the AFLPA, we assume that they are fully committed to assisting the Coroners Court in respect of the investigation and that they wish to understand and learn from the issues that may affect the health and safety of past and present AFL players.
“This question of CTE is a significant issue for both government and for sportspersons all around Australia.
“The position of the widow of the deceased must not, and I am sure will not, be overlooked when considering whether the investigation and inquest ought be delayed.”
“In our submission there is absolutely no basis for the coroner to recuse himself … there is simply no basis for forum shopping.
“In the subject case the coroner has openly raised the question of his brother as a possible expert witness. He has satisfied himself that, if he were so called, it would not affect his investigation.”
The AFLPA supports McGregor’s removal from the case.