NOTICE OF FILING This document was lodged electronically in the FEDERAL CIRCUIT COURT OF AUSTRALIA (FCC) on 22/1 ?2019 9:37:03 AM AEDT and has been accepted for ?ling under the Court?s Rules. Details of ?ling follow and important additional information about these are set out below. Details of Filing Document Lodged: Affidavit File Number: File Title: ISILELI FOLAU RUGBY AUSTRALIA LIMITED ANOR Registry: MELBOURNE FEDERAL CIRCUIT COURT - FEDERAL LAW Dated: 22/1 1/2019 10:11:14 AM AEDT Registrar Important Information As required by the Court?s Rules, this Notice has been inserted as the ?rst page of the document which has been accepted for electronic filing. It is now taken to be part ofthat document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each ofthose parties. The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court?s Rules the date of?ling ofthe document is the day it was lodged (if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry. FEDERAL CIRCUIT COURT OF AUSTRALIA File number 2486 (#2019 DISTRICT REGISTRY: MELBOURNE Vii?WuiSE om; DIVISION: FAIR WORK Cour! Location Court dale Court lime lsilall "Israel" Folau AppIIcanI Rugby Auslralla Limiled First Respondent Waratahs Rugby Pty Second Respondent AFFIDAVIT Name of deponent; SEKOPE KEPU Dale sworn 21 November 2019 II Sekope Kepu oI -- proiesslonal thIeIe. make oath and say as Iollows: Background 1, I am a prolesslonal rugby union player 2 I am 01 Tongan hemage I played Iunror rugby In New Zealand (Including Ior Ine naIIonaI team up to underrzl level) In 2008 I moved back Io Australla and started rfi playan for New Scum Walgs Waralahs I played Eager Rugbyr for lne Flled on behalf of lsllell "Israel" Folau (Ihe Tel Prepared by Fax Macpharsnn Kelley Ref Level 7. 600 Bourke SIreeI Alln Melbourne VIC 3000 Emall Waratahs that season and every subsequent season until (and including) the 2019 season. In total, I played around 100 matches for the Waratahs. have also played for Union Bordeaux Begles (a team that plays in the French Top 14 competition). From 2008 until 2019 when I retired from international football. I also played 110 test matches for the Wallabies. Only five players have played more test matches for the Wallabies. I have known Israel Folau since January 2013. From 2013 (when he started playing rugby) until 2019, we were teammates at the Waratahs and the Wallabies. Israel's 2018 Instagram post 5. I remember that in April 2018 Israel made a post and a comment on Instagram that caused some controversy. At the time, Israel and I were playing together at the New South Wales Waratahs. The post by Israel did not impact the atmosphere in the locker room at the Waratahs. respected Israel and knew where he was coming from, especially as I knew he was a devoted Christian. My perception having been amongst the team at the time was that everyone else felt the same. There was no chat about it amongst the boys. We knew we just needed to get on with our business, which was playing rugby. Soon after this, the Wallabies went into camp for the series against Ireland. The first game of Irish series was at Lang Park in Brisbane on 9 June 2018. I think that the camp, which was in Brisbane. started around 3 June 2018. I did not hear any discussion at camp about Israel's Instagram post. It did not in any way affect my preparation. The mood in the camp was no different than usual. My feeling (based on my decade with the Wallabies) was that it did not in any way interfere with our preparation for the series against Ireland. Again, we just got on with business. Israel?s 2019 social media posts I am also aware of the social media posts Israel made in April 2019. These are the posts that eventually led to him being sacked. On Saturday 6 April 2019, prior to the posts, Israel and I both played for the Waratahs against the Auckland Blues at Eden Park in Auckland. New Zealand. I 10. 11. remember it well, because Israel scored a try to become the equal highest try scorer in Super Rugby history. The following week we had a bye so I stayed in New Zealand a little longer than usual and I didn?t get back to Australia until Tuesday, 9 April 2019. I think lsrael put the posts online either that day or the next day. Almost immediately, I remember hearing that lsrael would be stood down because of what he posted. He was in limbo and wasn't allowed to come into the Waratahs clubrooms or train with us, which I found bizarre. It was not unusual for players to come to me when they had issues. I put this down to me being a senior member of the teams. Immediately after Israel was stood down. players started coming to me and asking questions about what was going on. A lot of the boys of faith (that is. those I knew to be Christian) told me that they were (Ii-?S??r?omtcai -by how the situation was being handled and what other players were 13. saying in the media. I felt the same. Straight away, I remember seeing media reports of quotes from players that were supportive of Rugby Australia?s side of the dispute. For example, on 15 April 2019 there was a media release on Rugby Australia?s website which quoted Michael Hooper (the Waratahs and Wallabies Captain) as saying ?Like was said before, in this current state and being here and talking about this as a rugby player, it makes it hard, it makes it difficult (to take field alongside Annexed to this affidavit and marked SK-1 is a copy of the media release. The same day, Monday 15 April 2019, the Waratahs players were called to a meeting with Andrew Hore, CEO of the Waratahs. In that meeting. Mr Hore confirmed that Israel would not be allowed into the club to train or play until the decision had been made as to his future. My concerns about how the situation was handled, and who i told about my concerns 14. I was concerned, both personally and because of what other players were saying to me, about how the issue was being handled. I thought the approach being taken to lsrael would likely have a very negative influence on team morale and the locker- room generally. 0% 15. 16. 17. 18. 19. Over the next two weeks I took these concerns to Daryl Gibson (the Waratahs' Head Coach), Michael HoOper (the Captain of both the Waratahs and the Wallabies), Michael Cheika (the Head Coach of the Wallabies and the former Head Coach of the Waratahs) and Raelene Castle (the CEO of Rugby Australia). On Tuesday 16 April 2019 I spoke with Mr Gibson. I told him that it would be in the best interests of the team for me to organise for Israel to speak to the Waratahs players. explain his side of the story, and answer any questions that they had. thought the team had a right to know about Israel's thinking and to understand where he was coming from. I thought this would achieve closure and allow Israel to return to the team. Mr Gibson told me that he thought that this was a good idea. But he didn't end up making it happen. unfortunately. Soon after I Spoke with Mr Gibson I spoke with Mr Hooper. I told him that what he had said to the media had really upset me and had really upset other Polynesian members of the teams. He told me that he had felt "under the pump? to say what he said and that it had been "taken out of context". I took this to mean that he had made his comments on 15 April 2019 because management had wanted him to do 80. About two weeks after the posts, on around 24 April 2019. I had a meeting with Ms Castle. I told her that I had a fear that the way Israel?s situation was being handled would cause division among Wallabies players leading into the 2019 Rugby World Cup and that Christian Polynesians in the teams were disappointed by the actions of Rugby Australia. Ms Castle said that she had bit the bullet so to speak and let Israel's first 2018 post slide. She said that she needed to sort out and deal with the 2019 posts. Ms Castle stated words to the effect of, "Israel threw me under the bus in his 'Players Voice' article, but I took that one and wore it". Because of this statement, it appeared to me that Ms Castle was taking the 2019 posts personally rather than prioritising the game and the organisation. The same day, I spoke with Mr Cheika by telephone. I told him the same things I told Ms Castle. Mr Cheika said that he was not in a position to do anything more for Israel. Mr Cheika explained that Israel had made it hard for him and he needed to do what was best for the team at the time. The media 20perception (based on my many years playing rugby union) is that management and the media work together in relation to which players are available to the media (and when). Media access to players at the Waratahs and Wallabies is controlled by the teams? media management teams. During my time with each team, this was managed in a very structured way. For example, at the Waratahs, two players would be made available for a media conference the day prior to each Super Rugby match. This was known as the "Captain?s Run media day?. In my experience, the media would not contact me unless I was nominated to speak to them by the team (like via the Captain?s Run media day). Up until Israel made his social media posts in 2019, was regularly nominated by the Waratahs as one of the two players who would attend the Captain's Run media day. Before Israel made his posts, I had been nominated for the Captain's Run media day which was scheduled for 10 May 2019 ahead of the match against the Lions in Johannesburg. As it turned out. that Captain's Run media day was to take place on the same day that the tribunal was expected to hand down its decision in relation to Israel. After word got out that the decision would be handed down (but before it was handed down), I was told by Lauren Ryan from Beyond the Break (who is a member of the Waratahs media management team) that I was being withdrawn from the Captain?s Run media day and replaced by another player. She said that I would be put in front ofthe media again once the Israel issue had died down. The perception I took from this was that management did not want me speaking to the media because i might speak my mind on Israel's case. That is, I might tell the media things similar to what I had told Mr Gibson. Mr Hooper. Ms Castle and Mr Cheika. This frustrated me because there were other players that had been put in front of the media. I remember seeing media reports of quotes from players that were supportive of Rugby Australia?s side of the dispute. 27. 28. (3 My perception was that the media was briefed to approach people who would toe the "anti-lsrael" line and were discouraged from approaching potential Israel's supporters (including the Christian players). The Wallabies' next camp after Israel's posts in April 2019 was in around July 2019, before our Rugby Championship matches that year. I did not attend the camp. This was because I was so upset about the way in which management had handled Israel's situation that I didn't think it would be a good thing for me to attend. This was the first time that I had not attended a Wallabies camp despite being selected. Effect of Israel's absence 29. 30. 31. 32. 33. [l Since he was stood down (and then sacked), at the Waratahs and the Wallabies, have clearly missed lsrael on the field and in the locker room. On the field, Israel's ability is freakish. This is especially so under the "high ball" (a ball kicked to us by the opposition, high in the air). Fielding the high ball cleanly is very important for ?eld position. lsrael is the best in the world at this skill. In the past, when lsrael was not playing, due to injury or otherwise, our opposing teams would adopt a strategy of kicking the ball high at us repeatedly. Not only is such a strategy effective because we may not field the high ball cleanly, it has flow on effects. What I mean by that is that I and other players on our team are less confident to be aggressive because we are aware of the perceived weakness at full back (the player that fields the high ball). During the 2019 Rugby World Cup, it was obvious to me that our Opposing teams were kicking to us more often than they had previously, often via a high ball. I would think to myself ?we need Israel out here". Aside from that, lsrael also has an attacking ability that is second-to-none. Even when he does not have the ball, his presence on the field is a threat. This used to give me greater confidence. I could feel the team lift when lsrael was involved in the play. Off the field, Israel's presence and professionalism was also deeply missed. In the locker room, he always touched base with everyone in a calm and confident manner, which brought a lot to the group. Off the field he is always a smiling. humble, happy and warm person. I really missed that after he was stood down. 34. Further, Israel was important to me as a Christian member of the teams. After Israel moved to rugby in 2013, he helped me feel more confident in expressing my religion in front of the playing groups. 35. Before Israel started, two or three of us Christian players would pray before games, hiding in a corner. lacked the confidence to show my faith, thinking that other players might view us as "weirdos" for being religious. After Israel arrived. we gradually grew more confident to the point where our prayer circles would happen in the middle of the locker-room and on the field before the game. 36. Israel also started team prayer groups the night before each game. Any player could join if they wanted. I attended regularly and saw it as a great way to express my faith and bond with my team-mates. Since Israel has been gone the prayer groups have stopped. 37. There is no doubt to me that the Wallabies would have gone further in the 2019 Rugby World Cup had Israel been on the team. I say this for all the reasons I describe above (including his influence both on and off the field). Sworn by the deponent at (place) SYDNEY on (date) 21/11/2019 Si nature of deponent Before me: Full name of witness: Benjamin Norrish. Macpherson Kelley. Level 21, 20 Bond Street, Sydney NSW 2000 Qualification of witness: An Australian Legal Practitioner within the meaning of the Legal Profession Uniform Lavv (NSW) ll Federal Circuit of Australia No MLG 2486 of 2019 District Registry Melbourne Dlvislnn' Fair Work Isileli "Israel" Folau Applicant Rugby Australia Limited Respondent Waratalls Rugby Pty Second Respondent CERTIFICATE IDENTIFYING EXHIBIT oefi'onent; SIEKOPE KEPU Date sworn: 21 November 2019 Code: Filed on behalf or the Applicanl Prepared by: gel' Macpherson Kelley Ra? Level 7, 600 Bourke Street A6 1 Melbourne VIC 3000 Emall is exhlolt marked now produced and shown to SEKOPE KEPU at the tlme of swearing his aflldaVIt on 21 November 2019 Before me Exhibit Copy of the media statement dated 15 April 2019' Ili20f2019 ('Zherka "wouldn't be able to" select liolau in immediate future after latest social post Cheika "wouldn't be able to? select Folau in immediate future after latest social post ll} APR .2019 INTERNATIONAL {l SHARE 9 5/ Beth Newman . Wallabies coach Michael Cheika says he "wouldn't be able to" select Israel Folau in the immediate future after his latest controversial social posts. Cheika. Waratahs coach Daryl Gibson and Wallabies and Waratahs captain Michael Hooper spoke to media on Monday in a ?united front" on NSW's first day of training since Folau's post. 138 1 ?20.0.01 9 Cheika "wouldn?t he able to" select I-olau in immediate future after latest social post the Wallabies coach said he hadn't expected liolau to be in this situation again alter making similarly divisive comments almost a year to the day before this most recent post. "No I didn't to be honest. We had a discussion after the last time and made it pretty clear about his right to believe and our support in that, if that?s what he wants, to be part of the team." he said on Monday. "But getting out in that disrespectful manner publicly is not what our team is about. "When you play in the gold jersey we represent everyone in Australia. everyone "Everyone that isout there supporting us, we don't pick and choose. felt that I needed to talk to him (Folau) about why but i haven't had that chance as yet." .. I. Wallabies coach Michael Cheika speaks to media on Monday morning, Photo: RUGBYcomau/Stuart Walmsley Rugby Australia is expected to issue Folau with a code of conduct breach notice later on Monday after meeting with the fullback last Friday over his post. The national body signalled after that meeting that it was still intending to seek a termination of Folau's four?year multi-million dollar contract and he was stood down by the Waratahs until further notice. 938 ('jheika ?wouldn?t be able select l-?olau in immediate future after latest social post l'ttht'chomau What follows from the breach notice will depend on whether l-olau chooses to accept it, with the most likely outcome being a code of conduct hearing. A three-person independent tribunal would be selected to hear the case. Neither Cheika or Gibson have spoken to Folau in the wake of his post but Hooper said he had exchanged text messages with his long-time teammate. Asked whether he would be comfortable taking the field with Folau in the future. Hooper admitted it would be difficult. "Like was said before, in this current state and being here and talking about this as a rugby player. it makes it hard. it makes it difficult (to take field alongside him)," he said. Asked whether he would select Folau again, Cheika said he "wouldn't be able to" as the situation sits currently. at Israel Folau won't be selected for the Wallabies in the current climate. Photo: RUGBYcomau/Stuart Walmsley think as it stands right now, considering what ljust said you wouldn't be able to because going to the World Cup, which is a tournament where I've been lucky enough to go to one where we go together in that tournament, the team, which he was a big part of." he said. "So together it gave us extra power. I think we went into that tournament ranked sixth or seventh you know. We came out, we made the final and I think a lot of it came through momentum of the team's togetherness, you know what I mean. 3?3 I'li?20l2fl'lfl ()heika ?wouldn?t be able to" select l-?olau in immediate future after latest social post ltUGl'iYcomau "tveryone knew they gave a little bit of themselves and that could be through a lot of ways, selection. i didn't get picked. players who hardly played any games in that tournament contributed to the cause on all fronts and in any sport where I think the team's involved. that's really important." This is not the first time that the Cheika, Hooper and Gibson have had to speak after Folau has published a divisive post. Folau was in Wallabies camp in 2017 when he posted about his opposition to same-sex marriage and it was mid?Super Rugby season with the Waratahs last year when he posted a homophobic comment on Instagram that resulted in a meeting with Rugby AU CEO Raelene Castle and NSW Rugby CEO Andrew Hore. Hooper said it wasn't easy to be back fronting the media about this issue for the second time in a year "It?s frustrating that I have to stand here. I can't speak on lzzy's behalf here today but what I can speak on is the footy we?ve got ahead and that sort of thing." he said. "It's hard being here, we're rugby players for sure, we are trying to create the best team environment we possibly can and at national level." Gibson said he was "disappointed" that this kind of situation had come around again but was confident the Waratahs would be able to respond. "I'm disappointed in the fact that we're here again, second year running that we're fronting up around an issue that on a large extent we'd settled and the impact that it has on the team," he said. think last year the team responded very well in the circumstance. "This is not new ground for us and it?s something we're going to have to do again." 438 11i2012019 Chcika ?wouldn't be able to" select l-?iolau in immediate future after latest social post My Waratahs and Wallabies captain Michael Hooper. Photo: RUGBYcomau/Stuart Walmsley Gibson was reluctant to give a concrete call on whether he would pick Folau again, with the process set to be "That's all hypotheticals at the moment, I?m not sure what those outcomes could be and just how we all feel about that," he said. Folau's brother John. who is contracted with the Waratahs. trained as normal on Monday, and while Gibson said before training he hadn't Spoken to the younger Folau directly, it was something to be mindful of. haven't had an opportunity to speak with John. but, yeah definitely, it?s something that I?m very mindful of how he's feeling." he said. Folau has said he is prepared to walk away from rugby if it is the best thing for his faith. WARATAHS PREPARE FOR LIFE AFTER IZZY tf a decision went against Folau. the Wallabies star could potentially appeal the decision in the Supreme Court but that kind of action is well down the track. The logistics of the process are made a little more difficult with Easter and ANZAC Day in the next fortnight as well. While he is believed to be trying to fight for his career, Folau said on Sunday that he would ultimately be willing to walk away from the sport if it came to that. 5"8 l'ir20i'2019 Clieika "wouldn't be able to" select iiolau in immediate future after latest social post RUGlthomau It's a stance not dissimilar to comments he made after a similar post a year ago. in a column for PlayersVoice. "It's obviously a decision that?s in the process right now but I believe in a God that's in control of all things," Foiau told the Sydney Morning Herald at a Truth Of Jesus Christ Church service on Sunday, in his first comments since his post. "Whatever His will is, whether that's to continue playing or not. l'm more than happy to do what He wants me to do." Folau said his comments came from a place of love. "l'li stand on what the Bible says," he said. "i share it with love. i can see the other side of the coin where people's reactions are the total opposite to how I'm sharing it. ?But in Ezekiel, chapter 33, verse ii, it says that 'God has no pleasure in the person that's living in sin' He's a loving God and he wants peOpIe to turn away from what they're living in and he?ll give them life. "That's the message that I'm trying to share, even though it comes across as harsh. i can't change what the word of God says." It SHARE FILED UNDER RUGBY AUSTRALIA WALLABIES ISRAEL FOLAU WARATAHS LATEST NEWS Wallabies review to shed light on future of "Giteau Law" rugbycom. Qi?dli 6?3 Cheika "wouldn't be able to" select l-?olau in immediate future after latest social post UPDATED: Wallabies win "significant fight" for Rennie's services, confident the Kiwi will prove his passion for Australian rugby 1001?? AT Walt PM INTERNATIONAL MORE NEWS Follow us Sign up and be the first to know Receive breaking rugby news, team and player announcements, exclusive content and ticket presale information. SIGN UP NOW XPLOR ER Explore LIVE Rugby your way with the Rugby Xpiorer App. GET THE APP NS I ?20620 It} tlhelka "wouldn't be able to" select l-?olau in Immediate future after latest social post ltUGI-tY.com.au Inspiring all Australians to celebrate and play our great global gamer VISIT SITE About Terms of Use Privacy Policy Advertise Contact Us Ticket Info 2016 Australian Rugby. All rights reserved. 8?8