Re Day [2017] HCA 2

Re Day [2017] HCA 2

The Court was asked to make specific factual findings for the Full Court's consideration of whether Mr Day had a pecuniary interest or sufficient control over entities involved in a lease with the Commonwealth to engage s 44(v) of the Constitution. The Court declined to make most findings proposed by Ms McEwen, finding the evidence insufficient to establish that Mr Day controlled B&B Day or Fullarton Investments after relevant dates or that particular arrangements conferred such control. The Court found certain facts were agreed (e.g., about property transfers, trust arrangements, and income) but did not find that Mr Day's knowledge or intentions constituted reckless indifference or...

Parties
Subject of Reference: Mr Robert John Day AO; Party to Reference: Attorney-General of the Commonwealth; Party to Reference: Ms Anne McEwen
Jurisdiction
Australia
Judgment Date
27 January 2017
Procedural Posture
Reference From Senate Under S 376 Commonwealth Electoral Act 1918 (cth) / Orders Regarding Findings of Fact for Full Court Hearing
Outcome
Findings of fact for Full Court hearing. Orders made regarding admissibility of exhibits and provision of hard copies.
Legal Topics
Section 44(v) of the Constitution, Pecuniary Interest, Qualifications of Senators, Court of Disputed Returns Procedure, Disputed Returns, Electoral Roll and Voting Outcomes
Constitutional Law Electoral Law Section 44(v) of the Constitution Pecuniary Interest Qualifications of Senators Court of Disputed Returns Procedure Disputed Returns Electoral Roll and Voting Outcomes

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Parties

Mr Robert John Day AO

Subject of Reference

Attorney-General of the Commonwealth

Party to Reference

Ms Anne McEwen

Party to Reference

Procedural Posture

Reference From Senate Under S 376 Commonwealth Electoral Act 1918 (cth) / Orders Regarding Findings of Fact for Full Court Hearing

Legal Issues

  1. 1 Whether Mr Day had a direct or indirect pecuniary interest in an agreement with the Commonwealth within section 44(v) of the Constitution
  2. 2 Whether Mr Day was incapable of being chosen or sitting as a senator
  3. 3 Factual findings regarding alleged control of certain entities and property interests

Ratio Decidendi

The Court was asked to make specific factual findings for the Full Court's consideration of whether Mr Day had a pecuniary interest or sufficient control over entities involved in a lease with the Commonwealth to engage s 44(v) of the Constitution. The Court declined to make most findings proposed by Ms McEwen, finding the evidence insufficient to establish that Mr Day controlled B&B Day or Fullarton Investments after relevant dates or that particular arrangements conferred such control. The Court found certain facts were agreed (e.g., about property transfers, trust arrangements, and income) but did not find that Mr Day's knowledge or intentions constituted reckless indifference or...

Court Disposition

Findings of fact for Full Court hearing. Orders made regarding admissibility of exhibits and provision of hard copies.

Orders

  • Exhibits in the trial marked '1' and '2' are to be evidence on the hearing of the Reference before the Full Court.
  • Ms McEwen to file 10 hard copies and an electronic copy of Exhibit 1 (including a copy of Exhibit 2) for use by the Full Court on the hearing of the Reference.