Re Day

The proceedings before the High Court of Australia, sitting as the Court of Disputed Returns, concerned questions referred under section 376 of the *Commonwealth Electoral Act 1918* (Cth) regarding Mr Robert John Day AO. The parties involved were the Attorney-General of the Commonwealth, Mr Day, and Ms McEwen. The core of the dispute involved determining whether Mr Day had an incapacity for election to the Senate, likely due to a pecuniary interest.

The court was required to determine the extent of agreement between the parties on a series of factual paragraphs, particularly those relating to an agreement between the Attorney-General and Mr Day, and to consider the relevance and necessity of certain other factual allegations. The court also needed to address a separate matter concerning Ms McEwen and to schedule a trial for issues that remained in dispute, potentially involving additional factual evidence.

The court indicated its intention to refer paragraphs 1 to 68 to a Full Court for hearing on or about 7 February 2017, forming the basis of a statement of agreed facts. However, paragraph 67 required further elaboration. For matters from paragraph 69 onwards, concerning Ms McEwen, the court proposed a trial in Melbourne on 23 January for two days to hear arguments on any additional facts. The court also sought clarification on the relevance of specific paragraphs, such as 112 and 113, which Mr Day's counsel argued were unnecessary and did not arise from the question referred. The court directed Mr Day's counsel to provide a list of disputed or irrelevant paragraphs to clarify the scope of the hearing.