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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Re Day [2017] HCA 2
Case
[2017] HCA 2
Decision Date
CaseChat Overview and Summary
The matter before the Court concerned a reference to the Full Court regarding Mr Day's potential contravention of section 44(v) of the Constitution. The Attorney-General contended that certain transactions resulted in Mr Day having a direct or indirect pecuniary interest in an agreement with the Commonwealth. Ms McEwen, representing Mr Day, sought to have specific facts found by the Court, which were divided into issues concerning Mr Day's interest in a lease with the Commonwealth, his statement and declaration upon nominating for the Senate in 2016, and the alleged distortion of the vote.
The primary legal issue before the Court was to determine a series of factual findings relevant to the reference. These factual findings were sought in relation to Mr Day's alleged pecuniary interest in a lease with the Commonwealth and his declarations made during the 2016 Senate nomination process. The Court was asked to make findings based on agreed facts, agreed documents, a revised tender bundle, and oral evidence from Mr and Mrs Smith, with limited other material adduced.
Gordon J noted that various steps and transactions were undertaken with the purpose of removing a property from Mr Day and entities in which he had an interest, and to place it within an entity that would receive Commonwealth rental allowance. However, the Court explicitly stated that it was not required to determine whether these steps and transactions had the legal effect of Mr Day no longer holding a relevant interest. The Court found that while the documentation was not always consistent and some steps were not carefully implemented, the preferable inference was that these actions were taken in the belief that they would achieve the intended purpose. The Court ordered that exhibits marked "1" and "2" from the trial be admitted as evidence for the hearing of the Reference, and directed Ms McEwen to file and serve copies of Exhibit 1, including Exhibit 2, for the use of the Full Court.
Orders
Orders of the court
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.
Background
Background to the litigation
That there was a trial, conducted by reference to statements of facts and contentions, the adducing of evidence and submissions, is relevant in considering each fact Ms McEwen asked the Court to find.D. Agreed Facts and Agreed Documents The Agreed Facts include, amongst others, that particular agreements were made and performed. The Attorney-General says that those transactions resulted in Mr Day having a direct or indirect pecuniary interest in an agreement contrary to s 44(v) of the Constitution. That is the subject of the Reference to the Full Court. A number of critical dates and facts, which are agreed, should be stated at the outset, in short form: The Additional McEwen Facts are divided into three issues: "Mr Day's interest in the lease with the Commonwealth" (Issue 1); "Mr Day's statement and declaration in nominating for the Senate in 2016" (Issue 2); and "Distortion of the vote" (Issue 3). In relation to Issues 1 and 2, Ms McEwen divides the Additional McEwen Facts into two parts: what are described as "Evidentiary facts" and then the "Ultimate" findings of fact to be found. For each fact or finding, Ms McEwen identified the documentary or other inferential bases for that fact or finding. Ms McEwen did not contend that the documentary or other inferential bases were themselves facts to be found. Ms McEwen asked the Court to find only the facts in the numbered or lettered paragraphs of the Additional McEwen Facts document. Ms McEwen also asked the Court to make the findings agreed between Ms McEwen and Mr Day but not formally agreed to by the Attorney-General. Those facts are recorded as Agreed Facts 83 to 92. Those facts are addressed in Part J below. In short, I make those findings.(2) Important preliminary observations These reasons will, of course, deal with the particular findings which Ms McEwen sought. It is necessary, however, to make some important preliminary observations. First, only limited material was placed before the Court: Agreed Facts, Agreed Documents, the Revised Tender Bundle and the oral evidence of Mr and Mrs Smith. No other material was adduced to explore more fully what was to be made of those documents and that evidence. Second, these reasons will show that various steps were taken and transactions were entered into for the purpose of removing the Fullarton Road Property from Day family members and any entity in which Mr Day had an interest and for the related purpose of "housing" the Fullarton Road Property in an entity that would receive the Commonwealth rental allowance. Whether those steps and transactions had the legal effect that Mr Day no longer had a relevant interest in the Fullarton Road Property is a legal question that I am not required to and do not address. Third, it will be observed from what later appears in these reasons that steps were taken in connection with carrying that purpose into effect that were not consistent with detailed planning or careful implementation. The documentation was not always consistent one with the other and, in some cases, recorded aspects of the transactions said to have been made earlier. Even taking account of those matters, I am not persuaded that I should conclude that Mr Day knew the steps and transactions were insufficient to achieve the stated purpose. Rather, the preferable inference is that the steps were taken and the transactions were made in the manner they were in the belief that they would achieve the intended purpose and have the desired effect. As I have said, whether they did is a question I do not address.