Re Day [2017] HCA 2

HIGH COURT OF AUSTRALIA

GORDON J

IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MR ROBERT JOHN DAY AO

Re Day [2017] HCA 2 27 January 2017 C14/2016

ORDER

1. The exhibits in the trial marked "1" and "2" are to be evidence on the hearing of the Reference before the Full Court on 7 February 2017.

2. Ms McEwen file 10 hard copies, together with an electronic copy, of Exhibit 1 (maintaining the current pagination and including a copy of Exhibit 2), for use by the Full Court on the hearing of the Reference.

Representation

A S Bell SC with D P Hume appearing on behalf of Mr Robert Day AO (instructed by Griffins Lawyers)

N J Williams SC with B K Lim appearing on behalf of the Attorney‑General of the Commonwealth (instructed by Australian Government Solicitor)

J K Kirk SC with S Gory appearing on behalf of Ms Anne McEwen (instructed by SBA Law)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

INDEX |Content|Par| A|Introduction|[1]| B|Powers of the Court of Disputed Returns|[11]| C|Principles of proof|[14]| |(1) Nature of the allegation|[15]| |(2) Constitutional facts|[20]| D|Agreed Facts and Agreed Documents|[27]| E|Additional McEwen Facts Overview|| |(1) Structure|[29]| |(2) Important preliminary observations|[32]| |(3) Issue 1 – Mr Day's interest in the lease|[39]| |(4) Issue 2 – Mr Day's Statement and Declaration|[46]| |(5) Issue 3 – Distortion of the vote|[53]| F|Issue 1 – Mr Day's interest in the lease|[56]| |(1) Overview of Ultimate Findings|[57]| |(2) Ultimate Finding 31 – Mr Day controls the affairs of B&B Day|[59]| |(3) Ultimate Finding 32 – At all times since its incorporation, Mr Day controlled the affairs of Fullarton Investments|| |(a) Introduction|[69]| |(b) The arrangement|[72]| |(i) Applicable legal principles|[73]| |(ii) Position adopted by Attorney-General and Mr Day, but not Ms McEwen|[74]| |(iii) Arrangement Ms McEwen asked the Court to find|[77]| |(iv) Evidence and findings|[80]| |Evidence of Mr and Mrs Smith|[81]| |Events after conversations|[92]| |An arrangement?|[96]| |Implementation of the arrangement|[103]| |Period after 23 September 2015|[109]| |(v) Inconsistencies, the Vendor Finance Acknowledgement and the payment of rent|[112]| |(vi) Other Evidentiary Facts that Ms McEwen asked to be found in relation to the "Arrangement" for which she contended|[125]| |(c) Fullarton Investments|[130]| |(d) The lease|[151]| |(e) Conclusion about Ultimate Finding 32|[162]| |(4) Ultimate Finding 33 – At all times since its incorporation, the shares in Fullarton Investments have been held on trust for B&B Day as trustee for the Day Family Trust|[163]| |(5) Ultimate Finding 34 – The Fullarton Road property is held by Fullarton Investments in its capacity as trustee for B&B Day as trustee for the Day Family Trust|[166]| |(6) Ultimate Finding 35 – Alternatively, the Fullarton Road property is held by Fullarton Investments as trustee for the Fullarton Road Trust|[167]| |(7) Ultimate Finding 36 – If it is found that Fullarton Investments holds the Fullarton Road property as trustee for the Fullarton Road Trust, it would deal with the Fullarton Road property for the benefit only of one of its beneficiaries, the Day Family Trust|[168]| |(8) Ultimate Finding 37 – Rent payable by Commonwealth under its lease of the Fullarton Road property was to be paid to B&B Day or to Mr Day|[169]| |(9) Evidentiary Facts not referred to or relied upon in relation to any Ultimate Finding under Issue 1|[172]| G|Issue 2 – Mr Day's statement and declaration in nominating for the Senate in 2016|| |(1) Overview of Ultimate Findings|[190]| |(2) Ultimate Findings 51, 52, 54 and 55|[191]| |(3) Ultimate Finding 49 – Mr Day's knowledge prior to transfer of Fullarton Road Property to Fullarton Investments|[202]| |(4) Ultimate Finding 50 – Mr Day's knowledge of the effect of the Arrangement|[203]| |(5) Ultimate Finding 53 – Mr Day not seek advice from appropriately qualified person on potential disqualification under s 44(v) based on a true and full disclosure.|[204]| |(6) Evidentiary Facts not referred to or relied upon in relation to any Ultimate Finding|[205]| H|Issue 3 – Distortion of the vote|| |(1) Overview of findings sought|[234]| |(2) Fact 56 – Mr Day acted on behalf of Family First and within the scope of his authority with respect to Statement and Declaration|[236]| |(3) Fact 57 – In 2013 election, Mr Day was elected to the Senate ­– first preferences and quotas|[237]| |(4) Fact 58 – At 2016 election, Ms Gichuhi and Mr Day profiles|[238]| |(5) Fact 59 – In 2016 election, Ms Gichuhi and Mr Day – first preference |[239]| |(6) Fact 60 – Political parties, voters and advertising|[240]| |(7) Fact 61 – Minor party ticket, incumbent Senator, likely substantial identification between the Senator and the party, influence voters|[242]| |(8) Fact 62 – In 2016 election 91.5% of voters in South Australia (whose votes were formal) voted above the line|[243]| |(9) Fact 63 – Had Mr Day not been on the ballot paper in the 2016 election|[244]| |(10) Fact 64 – The presence of Mr Day and Family First group above the line distorted vote at 2016 election|[246]| I|Facts agreed between the Attorney-General and Mr Day – Agreed Facts 81 and 82|[247]| J|Facts agreed between Mr Day and Ms McEwen – Agreed Facts 83 to 92|[250]| K|Orders|[251]|