Re Day

[2016] HCATrans 290

[2016] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Canberra  No C14 of 2016

B e t w e e n -

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

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 21 NOVEMBER 2016, AT 12.40 PM

Copyright in the High Court of Australia

MR A.S. BELL, SC:   I appear for Mr Day on that reference.  (instructed by Griffins Lawyers)

MR N.J. WILLIAMS, SC:   I appear with MR C. LENEHAN for the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MS S. GORY, for Ms Anne McEwen.  (instructed by Norton Gledhill)

HIS HONOUR:   Thank you.  Mr Williams, perhaps you can lead off.  You have proposed some steps to be taken and, on the other hand, Mr Bell has proposed quite a different course and I think Mr Kirk has, inter alia, some subpoena to argue about.

MR WILLIAMS:   Yes.  Your Honour, in respect of the matters raised by Mr Bell, it may be that it is a matter which should proceed by way of points of contention and the Commonwealth would be in a position to file those quite soon for its part.  Those would be contentions that deal with, effectively, the matters raised by the Senate reference and the evidence that came with that – the material that came with that.  There are questions of subpoenas that Mr Kirk wishes to raise.  Both are subpoenas involving Fullerton Investments Pty Ltd, and I think he also foreshadows, although it has not found its way in to the summons as yet, a subpoena addressed to the Commonwealth.

If those subpoenas were to be made returnable, for example, on Friday at midday, that would be a reasonably prompt timetable but, yet, one which would be sufficient to permit a compliance.  If the parties could have access to such documents as are filed in any Registry of the Court in answer to that, the matter would then be in a position where Mr Kirk’s client could ascertain whether she wishes to file contentions that go outside those that the Commonwealth would contend for and Mr Bell would be in a position to respond to those. 

On that timetable – there being, I understand, no live question of affidavit or oral evidence with the exception of a formal affidavit from an officer of the Australian Electoral Commission referring to the count and the ballot and formal matters of that kind – the matter could be ready for a determination by a Full Court in the reasonably near future, that is, this year.  Subject to any practical questions emerging from that, it may be necessary for the matter to come back before the Court for directions next week. 

HIS HONOUR:   I must say, my initial impression, looking at the materials which have been filed, was that there are some factual issues, at the very least issues of characterisation of relationships and what company had what obligations to whom and so forth, the nature of the agreement of the sale of the premises between from B and B Day Pty Ltd to Fullerton Investments and so forth, which are not straightforward and they involve a range of documentary matters and might not be fit really for fact finding by a Full Court.

So, one possible approach is to – if we cannot get an agreed statement of facts and agreed documents between all parties, then an alternative would be to have a single Justice hear and determine the facts before referral to a Full Court for argument as to the law.  I think that would not merely be another Justice but, I think, Chief Justice Barwick had contemplated some such Court in Webster’s Case and then, I think, decided to do the whole thing himself. 

MR WILLIAMS:   Yes, well, we would not oppose that course.  We do see the potential for factual disputes to arise.

HIS HONOUR:   That will be a longer timeframe.  I mean, I said in relation to Senator Culleton’s matter, if a matter can be dealt with expeditiously, it should be.  But we cannot have a situation where a rushing on a fact‑finding issue into a Full Court where there is some complexity and trying to get it done at the end of December.  I do not think that is going to work.

MR WILLIAMS:   We accept that, your Honour.  It may be, however, that when the documents are in there are, indeed, only questions of fairly basic inference from the documents.  It may be that no statement of fact can be agreed but, nonetheless, the factual propositions that emerge from the documents are relatively straightforward. 

HIS HONOUR:   What I had in mind was ‑ and again these are just provisional thoughts, possible directions ‑ but after determining that there are certain documents that would be in evidence, in any event, but if the parties were unable to agree a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts would be by a single Justice at a date to be fixed.

If the parties are able to agree a statement of all the facts and documents relevant to the reference, they may file a consent order for referral of the reference to the Full Court, and thereafter all the timetabling would be done by a Senior Registrar in conjunction with the parties in terms of the index and then the timelines for filing of submissions and so forth.

MR WILLIAMS:   We would be content with such orders, your Honour.

HIS HONOUR:   So, that would be the two options; one would be the path that takes you direct to a Full Court if you have got agreement on everything.  But, if on the other hand, we have got messy facts to be sorted out then it has to go to a single Justice, I think.

MR WILLIAMS:   Yes, there is nothing more we would wish to say about that.

HIS HONOUR:   Now, Mr Bell has also made some submissions about costs and so forth.  Do you have anything to say about that before he speaks?

MR WILLIAMS:   Your Honour, his client did seek an indemnity from the Commonwealth.  We have indicated quite recently that a full indemnity will not be given but the question of whether the Commonwealth would meet – whether the Commonwealth would submit to an order that it pay the reasonable costs of Mr Day is one which is receiving consideration.

HIS HONOUR:   All right, thank you.  Mr Bell.

MR BELL: Thank you, your Honour. Your Honour, we apprehend that there is likely to be some factual complexity in this matter, as your Honour has indicated. One of the difficulties is that unlike, say, a petition matter where section 355, I think, of the Commonwealth Electoral Act requires, effectively, a particularised set of contentions, in effect, we have none of that here at the moment.  But what we do know is the Commonwealth, as we understand it, will seek affirmative answers to questions (a) and (c) and as we apprehend, Ms McEwan will also do so, but whether or not they do so on the same basis or a different basis we – that is Mr Day – simply does not know.  And there is a real question about the proper sequence of things, accepting the need for relative expedition, we do not resist that although we are anxious that there be, obviously, sufficient time.

What I mean by the cart before the horse is that Ms McEwan, for example, seeks to issue now, I think, six or seven subpoenas covering three‑year periods, some of which include broad phrases like “relating to”, et cetera, in circumstances where there is not yet a formulated set of contentions.  Normally, assessments of the legitimacy and ambit of subpoenas are answered by reference to the matters in issue.  As I say that we would submit as a matter of fairness and good management is the first step to be taken.  Namely, that the Commonwealth or the Attorney‑General rather and Ms McEwan should be directed to formulate their points of contention, then by reference to that your Honour can make a reasonable assessment about the ambit of the subpoenas.

Other than that, your Honour, we would agree broadly with what your Honour proposed about separate fact‑finding, assuming that is necessary.  One of the things Mr Williams mentioned which we would take issue with he asserted that there would be unlikely to be affidavit evidence or oral evidence.  We simply cannot say that is correct or not at this point.  My feeling would be it is probably incorrect.  He also indicated that there may be inferences arising from documents, et cetera.

That, again, is why we say the articulation of points of contentions both of the facts, the inference sought to be drawn from documents and conclusions is important as a matter of procedural fairness to Mr Day.  But broadly, your Honour, we agree with the two‑step process your Honour indicated.  On the question of the subpoenas, obviously it would be a matter for your Honour if your Honour does decide to deal with them today.  We made the point that, in a sense, they sit in a vacuum of contentions but also, on any view, they seem to be extremely wide.

HIS HONOUR:   Well, can I just interrupt you there?  I mean, my time as a trial judge in the Federal Court I always had a bit of a difficulty with relating to as a formula in subpoenas.  But anterior to the question of the need for the subpoenas, I am not saying that all of them – that one could reach a situation where all of them are unnecessary, but one would need to know first of all the scope of the factual issues which can be actually agreed as having regard to the affidavit that was sworn on behalf of Ms McEwen.  For example, I am saying this partly for Mr Kirk’s benefit as well as for yours. 

There seems to be questions about when the vendor finance agreement was executed, whether stamp duty was paid or not by B & B Day Pty Ltd, whether there was any adjustment of rates and taxes at settlement, whether B & B Day lent certain moneys to Fullerton in relation to interest payments, cost of renovations and so forth.  So there are lot of things there are one might have thought it might be unnecessary to go through a subpoena process if the parties were able to agree the facts which seem to be suggested as matters in respect which evidence is being sought.  They are ‑ ‑ ‑

MR BELL:   Your Honour, we are not averse to giving genuine consideration to that but we are rather chary about doing so in the absence of the formulated contention of ‑ ‑ ‑

HIS HONOUR:   I am assuming this is after we have done – I accept the notion of the contentions, I think it is a very good idea in this case because it is far more wide‑ranging than the Culleton Case in terms of the factual issues.

MR BELL:   Yes.  It may be that the ambit of subpoenas narrows or disappears if after the formulation of the contentions consideration is given to the facts which are sought to be agreed.  So, therefore, the question of subpoenas may be best deferred or not addressed today.  The final matter Mr Day is anxious about, your Honour, is the cost question which I have dealt with in the short written submission which I hope reached your Honour this morning.

HIS HONOUR:   Yes.

MR BELL:   His situation, of course, as he is no longer a Senator.  I think it is fairly publicly known that his personal financial position is difficult.  He is willing to be the contradictor.  There must be a contradictor and a properly represented contradictor and he is willing to be that contradictor and it is appropriate to be that contradictor but, your Honour, we do submit for the reasons I have set out in paragraph 16 of those submissions that it would be appropriate for your Honour to condition any orders today with a condition of the kind the Court routinely applies to grants of special leave where there are matters of public importance and public interest involved. 

We do not want to be in a situation, your Honour, where we are trying to work conscientiously to meet an expedited timetable of the Court but to be left hanging in the air as to what the Commonwealth’s position might be and we would think, in those circumstances, your Honour conditioning an order today in the same way that grants of special leave are conditioned would be the most efficient way forward so Mr Day could have certainty, et cetera, as to his cost position.

HIS HONOUR:   I think there is a problem with that.  The Court has been given a reference by the Senate.  It has to deal with it.  So the progress of the matter cannot be made conditional upon the grant of an indemnity.  That is not to say that it is not appropriate for such an arrangement to be made and obviously that is under consideration.

MR BELL:   Could I simply make this point, your Honour?  I understand the point your Honour made and of course the Court is obliged to move the matter forward as quickly as is reasonable in the circumstances.  I am really making the point that Mr Day’s ability to respond as expeditiously as possible in the circumstances may well be affected by the matters I have raised and in that context the Court discharging its obligation under the Commonwealth Electoral Act can still, in my submission, condition the specific directions in the way I have mentioned.

So it is not a question of unless you provide some cost comfort to Mr Day we will not hear the matter.  So it is not a perfect analogy with

special leave application but it is a condition on granting to the Commonwealth the particular level of expedition it seeks.  So I accept it is not a perfect analogy but I nonetheless would submit that it is within the Court’s power to make an order of this kind in aid of – actually in aid of discharging the desire to have the matter both progressed as expeditiously as possible and also for the contradictor and the contradictor’s arguments to be presented as comprehensively and as efficiently as possible.  If it please the Court, they are the submissions I put.

HIS HONOUR:   I think it may well be in the Attorney‑General’s interests, if the financial position is as you say, to ensure that representation is able to be continued but I am not prepared to make an order conditioning these directions on the provision of the indemnity.

MR BELL:    If it please the Court.

HIS HONOUR:   Yes, all right.  Now, is there anything else you wanted to say in relation to ‑ ‑ ‑

MR BELL:    No.  I think I have indicated both in writing and orally.

HIS HONOUR:    Yes, all right, thank you.   Mr Kirk.

MR KIRK:   If it please the Court, there are three issues which obviously overlap.  First, points of contention, we do not resist the force of what has been said by Dr Bell.  In terms of giving practical effect to that and doing so as efficiently as possible, it occurred to us the appropriate orders might be along the lines that the Attorney go first with points of contention, we go second.

The reason for not doing it simultaneously is that we can then leapfrog over what the Attorney said to the extent we need to without repeating everything he has said.  Then third, obviously Mr Day, and then fourth, the possibility of contentions in response by the Attorney and by my client would ensure that all relevant arguments are properly articulated.  That was the first issue.

Secondly, in relation to the way forward, we also, with great respect, see the common sense in what your Honour has proposed about the conditional order about either going before a single judge or if it turns out to be just a documentary case where the facts are essentially in a relatively limited compass, then a referral to the Full Court.

What is obvious in contrast to the previous case is that this is going to be very fact sensitive, as the Chief Justice’s judgment in Webster shows, a lot may turn on the particular characterisation of the contracts and relationships and so forth.  So it is much more fact sensitive than the Culleton matter in our respectful submission.

In relation to the subpoenas, as a matter of formality, I should note that I respectfully move on a summons filed in the Registry this morning, I think, and seek leave to rely on two affidavits sworn by my instructing solicitor, Mr Andrew Green, sworn on 18 November 2016 and then on 20 November 2016. 

HIS HONOUR:   Yes, all right.  They are read.

MR KIRK:   If it please the Court.  In relation to subpoenas and the factual issue, it is obvious that my client is on the outside in that he does not have access to the materials in the terms of the relationships between these companies and these entities.  The Commonwealth has more information in that there have been exchanges with departmental representatives and so forth, or there appear to have been, but not all of them are before the Court, which is why we sought to subpoena the Commonwealth.

But I understand, with great respect, what your Honour has indicated about contentions first and we do not seek to cavil with that, of course.  It may well be, particularly in light what my two learned friends have said, that with a degree of common sense there can be, in effect, informal discovery between the parties as part of seeking to agree the facts and, if we proceed in that way, it may well significantly ameliorate the need for subpoenas.

It may not, however, completely do so because in the parties that we seek to subpoena are three or four third parties – namely the National Australia Bank, Wilson Coleman Accountants, the conveyancers – that is Eckermann Steinert – and Fullerton Investments Pty Limited.  As to whether or not that is in Mr Day’s camp, that is obviously very much a matter in dispute.  So, we do still, in our respectful submission, need subpoenas on those parties.  That said, it may be that if the full reasonably expected universe of documents is provided by Mr Day, and by the Commonwealth to the extent they have them, that may mean we do not need the subpoenas.  So, it may be that if we are not ‑ ‑ ‑

HIS HONOUR:   We should probably stand the question of subpoenas over to a post, as it were, negotiation phase in relation to the contentions, the facts and the agreed documents and whatever is disclosed formally, and then we can revisit.  As I said before, when you are drafting these things, the words “relating to”, “expenditure relating to”, “…..rate”, these are words of very wide compass which I generally feel very uneasy about.  So, it needs to be very tight and focused. 

MR KIRK:   I understand that and, with respect, we do not oppose the course your Honour suggested of standing over the application for subpoenas.  I do not think your Honour has expressly mentioned, but I infer we are not looking towards a December hearing?

HIS HONOUR:   I do not think that is going to be possible, given the factual issues in this case.  Now, it may be that everything will come together and you are all satisfied about the facts and documents and we could get it before a Full Court in the second week of the December sittings, but I suspect that is not going to happen given the factual arrangements, so that would then mean the beginning of the February sittings.  If there had to be a hearing by a single justice that might well ‑ without committing ourselves, we might well be looking at something in the second half of January.

MR KIRK:   That is something to look forward to, your Honour.

HIS HONOUR:   Absolutely.  A good incentive to reach agreement. 

MR KIRK:   Unless I can assist your Honour further.

HIS HONOUR:   All right, thank you.  Let me just look at some proposed orders and then I will run them past you all.  How soon would your contention be ready?

MR WILLIAMS:   Close of business on Wednesday the 23rd, your Honour.

HIS HONOUR:   All right.  I will just run through these, and this is what I have in mind.  1. The following documents are to be evidence on the hearing of the reference:  1.1 letter from the President of the Senate to the Chief Executive and Principal Registrar of the High Court.  I will just run through these in an informal way before making any formal order.  1.2. The writ certifying and returning the person and the endorsement on it.  1.3 The Journals of the Senate which show the tabling of that in the Senate.  The copy of the letter of resignation of Mr Day, dated 1 November 2016.

The letter from the President of the Senate to the Governor of South Australia, dated 1 November 2016 which was tabled on the seventh, and then the Journals of the Senate recording that.  Then 1.7 is the letter from the Special Minister of State to the President of the Senate, dated 6 March.  1.8 the document called Statement of Facts Senator Day Matter tabled in the Senate on 7 November as evidence of the apparent basis upon which the reference to this Court was made.  1.9 Fifteen attachments to the Statement of Facts as evidence of the trusts, transactions, communications and public records they purport to evidence or record.

Then 2, in the absence of any contrary contention, question 4(a) and 4(c) of the questions referred by the Senate to the Court of Disputed Returns on 7 November shall be read as referring to section 44(v) only and not any other reason for the vacancy or incapacity referred to in those paragraphs. So, the purpose of that is to contain the reference so we know we are not a roving commission, even though the words “any other reason” do appear in the reference itself.

Then the proposal, being paragraph 3, that the Commonwealth file and serve a statement of contentions of fact and law upon which it intends to rely on the hearing of the reference on or before 23 November, and that is 3.1.  Then 3.2, Ms Anne McEwen to file and serve a statement of contentions of fact and law upon which she intends to rely on the hearing of the reference on or before 25 November.

Then 4, Mr Robert John Day to file and serve a statement of contentions of fact and law upon which he intends to rely on or before 2 December.  Then 5, any application for leave to issue a subpoena to be made on 8 December at 10.15.  Then 6, any subpoena issued pursuant to leave granted on 8 December be returnable on 15 December.  Then 7 would be that the Attorney‑General of the Commonwealth would file and serve on or before 22 December a statement of such facts relevant to the reference as have been agreed upon between the parties, including such facts set out in the statement of facts ‑ that is the statement of facts attached to the Senate letter ‑ as can be agreed, together with a list of documents which it is agreed should be evidenced on the hearing of the reference.

Then 8, if the parties have been unable to agree by 22 December a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts will be heard by a single Justice at a date to be fixed. Then 9, if the parties are able to agree a statement of all the facts and documents relevant to the reference, they may file a consent order on 22 December for referral of the reference to a Full Court pursuant to section 18 of the Judiciary Act. 

Then 10 would be upon an order referring the reference to a Full Court the Senior Registrar shall settle an index for a court book to include the agreed facts and document the evidence received pursuant to the preceding directions.  At 11, the Attorney‑General of the Commonwealth would prepare, file and serve such numbers of copies of the court book as are directed by the Registrar and according to a timetable fixed by the Senior Registrar.  Then 12, the parties will file and serve written submissions in accordance with the timetable and directions given by the Senior Registrar.  Then, upon referral to a Full Court the reference will be listed for hearing on a date to be fixed.  Then, the parties would have liberty

to apply for further directions in the event that any party seeks to prove a fact which – no, in fact, I will delete that because that would be covered by the single Justice reference. 

MR WILLIAMS:   There is nothing further to raise for our part.  Thank you, your Honour.

HIS HONOUR:   What about you, Mr Bell?

MR WILLIAMS:   I am sorry, would your Honour ‑ ‑ ‑

HIS HONOUR:   Just a minute.  They are getting some further instructions.  Just take a seat for a second.

MR WILLIAMS:   Your Honour, I should have mentioned the Electoral Commission affidavit that we had foreshadowed ‑ ‑ ‑

HIS HONOUR:   Yes.

MR WILLIAMS:    ‑ ‑ ‑ that would preclude such matters as the formal nomination form, the return, the scrutineered account.

HIS HONOUR:   Well, they can all come in on 22 December, with the statement of agreed facts, I would think.

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   Just bear with me for a moment.  Yes, Mr Bell.

MR BELL:   Yes, your Honour, on the question of the timing of our points of contention, which would include presumably responsive points of contention as well as any positive propositions we wished, I was wondering, given that we will effectively be responding to two and given the uncertainty as to the costs position and also other timing considerations, whether Mr Day’s contentions could be put to the fifth or the sixth to give it the extra weekend and one or two days. 

Then I was going to suggest, Mr Kirk raised the possibility of replies, if necessary.  If Mr Day was extended to say the fifth or the sixth, replies by the eighth or the ninth and then the reconvened directions hearing rather than on the eighth, I think your Honour indicated, possibly the 12th.  That is an application for subpoenas, the 12th or the 13th.

HIS HONOUR:   Then, when would you suggest the subpoenas be returnable?

MR BELL:   Well, within a – it would depend on their ambit but if the ambit is going to be narrowed maybe within a week or five business days.  I suppose that is a week. 

HIS HONOUR:   All right, thank you, anything further?

MR BELL:   The only other thing, your Honour, I may have missed it as your Honour was running through it but in the event that there was not an agreement that everything is able to be reduced – all factual matters are to be able to be reduced to a statement of agreed facts, there may be affidavits from Ms McEwen, or on behalf of Ms McEwen, for example.  They may be affidavits which Mr Day may wish to respond to, I do not know.  I do not think the orders contemplated that, obviously, if it is going off to a single judge, no doubt the single judge ‑ ‑ ‑

HIS HONOUR:   It may that they can be controlled by directions by the single judge rather than me trying to tie up all the case management options.

MR BELL:   No, no, I agree with it, I was just bringing it to your Honour’s attention.

HIS HONOUR:   No, no, I am conscious of that but I think that if it goes off to a single justice then I imagine the first thing that would happen would be a directions hearing before the single justice who would then have to make directions about any further evidence that people wanted to rely upon at that stage.

MR BELL:   Yes, I agree with that, your Honour, I just ‑ ‑ ‑

HIS HONOUR:   Especially if we get into affidavits and cross‑examination and so forth.

MR BELL:   I agree with that.  Hopefully, it will not be necessary but it could be depending on what the allegations are and so forth.

HIS HONOUR:   Okay, well we will see, let us not jump at phantoms.

MR BELL:   No.  The most practical thing from Mr Day’s point of view would be a few extra days to respond to the contention.

HIS HONOUR:   I understand that.  All right, thank you.  Mr Kirk.

MR KIRK:   Very briefly, your Honour.  Dr Bell has pre‑empted me.  We would respectfully suggest response contentions, if any.  I think Dr Bell said he wanted until five or six and so two or three days after that for any response contentions, and then I was going to say I am in Court on

8 December, so I was going to ask if it could be put over a little, but that will follow anyway.

HIS HONOUR:   Yes.  Just a minute.

MR KIRK:   I think the fifth is a Monday.

HIS HONOUR:   Yes.  Then you are looking at a reply by, say, the eighth.

MR KIRK:   Yes, your Honour, and then I think Dr Bell suggested, and I would not cavil with it, so Monday the 12th is a return date if that suited the Court.

HIS HONOUR:   An application for leave to issue a subpoena and further directions, I suppose, would tidy up any loose ends.

MR KIRK:   Yes.  Other than that.

HIS HONOUR:   All right, thank you.

MR WILLIAMS:   Nothing arising, your Honour.

HIS HONOUR:   All right.  Let me just try and tidy up this piece of paper and we can put it together.

MR BELL:   I am sorry, your Honour, there was one thing I would just wish to clarify.  I think it is clear but, your Honour, I think with regard to document 1.8 which was the statement of facts from the Senate, I think your Honour had a formula which would be to the effect that that was just the apparent basis of the reference ‑ ‑ ‑

HIS HONOUR:   Yes, as evidence of the apparent basis upon which – that, as it were, sets the parameters, and that is why that links into the other one about confining the reason for disqualification that we are looking ‑ ‑ ‑

MR BELL:   Yes, but it does not give that document ‑ ‑ ‑

HIS HONOUR:   They are not proof of the truth of those facts, yes.

MR BELL:   Thank you, your Honour.

HIS HONOUR:   I will pronounce these orders, subject to if somebody wants to raise a correction at the end they are free to do so.  So:

1. The following documents are to be evidence on the hearing of the reference:

1.1the letter from the President of the Senate to the Chief Executive and Principal Registrar of the High Court, dated 8 November 2016, not including attachments;

1.2the writ issued by the Governor of South Australia, dated 16 May 2016, for the election of 12 senators for the State of South Australia with an endorsement by the Acting Australian Electoral Officer for the State of South Australia, dated 4 August 2016, certifying and returning the persons duly elected, as tabled in the Senate on 30 August 2016;

1.3Journals of the Senate No 1, 30 August 2016, page 4, entry number 4;

1.4copy of the letter of resignation of Robert John Day, dated 1 November 2016, tabled in the Senate on 7 November 2016;

1.5letter from the President of the Senate to the Governor of South Australia, dated 1 November 2016, tabled in the Senate on 7 November 2016;

1.6Journals of the Senate No 12, 7 November 2016, page 372, entry number 6;

1.7letter from the Special Minister of State to the President of the Senate, dated 6 November 2016, tabled in the Senate on 7 November 2016;

1.8the document entitled “Statement of Facts – Senator Day matter” tabled in the Senate on 7 November 2016, as an attachment to the letter from the Special Minister of State to the President of the Senate as evidence of the apparent basis upon which the reference to this Court was made;

1.915 attachments to the statement of facts as evidence of the trust’s transactions, communications and public records they purport to evidence or record; and

1. In the absence of any contrary contention, questions (a) and (c) of the questions referred by the Senate to the Court of Disputed Returns on 7 November 2016 shall be read as referring to section 44(v) of the Constitution only and not any other reason for the vacancy referred to in those paragraphs.

1. The Attorney‑General of the Commonwealth is to file and serve on or before 23 November 2016 a statement of contentions of fact and law upon which he intends to rely on the hearing of the reference.

1. Ms Anne McEwen is to file and serve on or before 25 November 2016 a statement of contentions of fact and law upon which she intends to rely on the hearing of the reference.

1. Mr Robert John Day is to file and serve on or before 5 December 2016 a statement of the contentions of fact and law upon which he intends to rely.

1. Any reply contentions are to be filed and served by 8 December 2016.

1. Any application for leave to issue subpoenas and for further directions be made on 12 December 2016 at 10.15 am.

1. Any subpoena issued pursuant to leave granted be returnable on 19 December 2016 or such other date as may be fixed.

1. The Attorney‑General of the Commonwealth will file and serve on or before 22 December 2016 an affidavit by an officer of the Australian Electoral Commission, a statement of such facts relevant to the references as have been agreed upon between the parties, including such facts set out in the Statement of Facts as can be agreed and a list of documents which is agreed should be evidence on the hearing of the reference.

10.If the parties have been unable to agree by 22 December 2016 a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts will be heard by a single Justice at a date to be fixed with a view to a referral to the Full Court thereafter.

1. If the parties are able to agree a statement of all the facts and documents relevant to the reference, they may file a consent order on 22 December 2016 for referral of the reference to a Full Court pursuant to section 18 of the Judiciary Act 1903.

12.Upon an order referring the reference to a Full Court, the Senior Registrar shall settle an index for a court book to include the agreed facts and documentary evidence received pursuant to the preceding directions.

13.The Attorney‑General of the Commonwealth is to prepare, file and serve such number of copies of the court book as are directed by the Senior Registrar and according to a timetable fixed by the Senior Registrar.

14.The parties will file and serve written submissions in accordance with the timetable and directions given by the Senior Registrar.

15.Upon referral to a Full Court, the reference will be listed for hearing on a date to be fixed.

Anything arising out of that?

MR WILLIAMS:   Nothing to raise, thank you.

MR KIRK:   Just one thought, your Honour.

MR BELL:   Nothing from our point of view, your Honour.

MR KIRK:   We presume the Attorney will look after the filing and service of the section 78B notice which also arises in this matter and I do not think that was actually addressed by your Honour’s orders but I have no doubt the Attorney will deal with it – 78B notice.

HIS HONOUR:   Yes.  I think he has to do that anyway.

MR WILLIAMS:   Yes, we will serve those.

HIS HONOUR:   I will not make a direction about that.  You have to do that forthwith, I think.

MR WILLIAMS:   We will attend to it very promptly.

HIS HONOUR:   All right, thank you.  All right, the Court will then adjourn.  Thank you.

AT 1.32 PM THE MATTER WAS ADJOURNED