Re Day

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.