Re Day [2017] HCATrans 3 (17 January 2017)

Last Updated: 19 January 2017

[2017] HCATrans 003

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

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 17 JANUARY 2017, AT 9.30 AM

Copyright in the High Court of Australia

MR D.P. HUME: I appear for Mr Day, your Honour. (instructed by Griffins Lawyers)

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MR B.K. LIM for the Attorney-General of the Commonwealth. (instructed by Australian Government Solicitor)

MS S. GORY: Your Honour, I appear on behalf of Ms McEwen. (instructed by SBA Law)

HER HONOUR: What I thought I would do is I would outline the list of things that are on my list – I have eight – and then I thought we would work through them in order and you can tell me what I am missing. The first is we have the application to deal with the expert witness and then I have the privilege question. I have a proposed document summons. I want to deal with the tender bundle question as a matter of expediency. I want to raise with you, Mr Williams, this question about the second candidate that is referred to in paragraph – I think it is 76. Do I have the number right? Yes, 76 of your submissions – that is No 5.

I also want to deal with you, Mr Williams, on your proposal that you cross-examine witnesses as point No 6 and then 7 will be some general matters that I do want to deal with in relation to the trial next week and 8, I want to have a discussion finally about these additional findings of fact which will affect the trial. So that is my eight. Anyone else have anything else to add to my list of what we need to discuss today?

MR HUME: Your Honour, you can cross off the second issue – the privilege issue, which I think is in response to Mr Day’s summons. That is no longer pressed. There has been production.

HER HONOUR: I see. Thank you. I now have seven. All right, shall we deal with the expert evidence application first? Mr Hume, what is your client’s attitude to this?

MR HUME: It is opposed. I can explain the grounds now. It might be more appropriate for Ms Gory to first put the positive case.

HER HONOUR: I do not know about that. Explain this to me in words of one syllable – do you add anything to what the Attorney-General says?

MR HUME: We do. We oppose it on the grounds of delay and prejudice and also - - -

HER HONOUR: Well, they raise that. I said anything in addition to that raised by the Attorney-General of the Commonwealth.

MR HUME: Yes, we are in a slightly different position in that we are currently preparing written submissions on the basis – written submissions that have been filed by both the Commonwealth and Ms McEwen and we are preparing those submissions on the basis of the documents as they are and also on the basis of the submissions as they currently stand. We are also responding to a detailed 20-page factual findings document prepared by Ms McEwen and in the circumstances we just have not been in a position to properly consider the expert report.

We raise a second discretionary issue which is this expert was retained in the knowledge that he would be unable to attend in person to give evidence. We say that imposes a very real forensic disadvantage on both the Commonwealth and also my client. That is in circumstances where his evidence is otherwise – his evidence-in-chief is given by a detailed written report and we say that it is inappropriate and a discretionary factor against giving leave that we are subject to that forensic burden. So those are the two bases on which we oppose it.

HER HONOUR: Thank you. Ms Gory.

MS GORY: Thank you, your Honour. Your Honour, we provided an outline of written submissions - - -

HER HONOUR: I have read those and I have read the Commonwealth’s which is the reason why I asked Mr Hume what his position was so that you now have it abundantly clear what the position is of all parties.

MS GORY: Thank you, your Honour. I will not traverse those submissions in detail. I would just like to develop a few points.

HER HONOUR: Yes, please.

MS GORY: And then respond to the Commonwealth submissions.

HER HONOUR: Yes.

MS GORY: Your Honour, the starting point for this issue is that if Mr Day is found to be ineligible to be chosen as a senator under section 44(v) of the Constitution, the question for the Court will be how to fill the vacancy caused by his ineligibility. The critical question then will be how should the recount of the votes be undertaken in order to give effect to the true intention of the voters.

We say that in answering that question, the Full Court will be required to determine whether Mr Day’s presence on the ballot distorted the vote and, more specifically, whether it is likely that a significant number of voters would not have voted for Family First above the line had Mr Day not been on the ballot. Your Honour, those submissions are developed in our written submissions to the Full Court.

Can I refer your Honour to two cases? The first is Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77. I am going to go to page 102, but in that case, in Sykes, the issue for the Court was how to fill a vacancy caused by the disqualification of Mr Cleary who had been elected to the House of Representatives. It was argued that his spot should be filled by a special count of the vote, ignoring votes for Mr Cleary, as had been done in Wood, and the Court rejected that argument. In doing so it said, at page 102 - - -

HER HONOUR: Is this the line which talks about “within the framework of a larger field of candidates”?

MS GORY: Correct – starting “Furthermore” - - -

HER HONOUR: I have read that, yes.

MS GORY: Yes. Can I draw your attention to this sentence:

it was highly probable, if not virtually certain, that a person who voted for Mr Wood –

that is in Wood Case:

would have voted for another member of his group, had the voter known that Mr Wood was ineligible. The same comment cannot be made in the present case.

I would like to make two observations about that statement. The first is that it shows that the question of whether the presence of the ineligible candidate on the ballot distorted the vote is plainly relevant to the analysis of how the vacancy should be filled. The second point I would like to make is that this statement that “it was highly probable, if not virtually certain” that voters who voted for Mr Wood would have voted for his party, and the same could not be said here in the case of Mr Cleary, are both conclusions of fact.

Now, in Sykes they are conclusions of fact that were made based on assumption or intuition or common sense. We have no issue with that. In fact, as an aside we think that in this case common sense and intuition assist Ms McEwen as we say that it is evident that having Mr Day, a high profile incumbent senator on the ticket, means that it is likely that at least a significant number of voters voted for Family First where they would not otherwise have voted for the party had he not been on the ticket.

The critical point for today is this. It is if there is relevant expert evidence – and in this case evidence that analyses voting data in a meaningful way to shed light on this critical factual question, that evidence will assist the Court in making the necessary factual finding of the type that was made by assumption in Sykes and of the type that we seek to be made in this case.

HER HONOUR: Just so that I am clear about it – because I could not work it out – consistent with the usual practice, has all of the analysis and literature review been provided to both Mr Day and the Attorney-General of the Commonwealth at the time the report was delivered? In other words, have all of the underlying analyses, the data sets, all of the documents that would ordinarily be provided at the time of the report been provided, because the Court does not have them?

MS GORY: My understanding is that the data set that was used is data that is publicly available from the AEC website.

HER HONOUR: That is not my question. What I asked is whether or not your instructing solicitors delivered to the Attorney-General of the Commonwealth and to Mr Day the information upon which the report is based, consistent with usual practice.

MS GORY: Your Honour, there is a link in the report to the data, so in that sense the report has been provided electronically. There is a link to where the data is available on the website so my answer is yes.

HER HONOUR: Where do I find that link?

MS GORY: Your Honour, the first link is at page 1 of the report – dot point 1 under paragraph 1, “Introduction”.

HER HONOUR: But that is for 2016.

MS GORY: Yes. Then the other data is linked under dot point 4.

HER HONOUR: That is the academic survey.

MS GORY: Then the remaining data is - - -

HER HONOUR: So, for example – it is under the “Literature Review”, numerous studies of voting for minor parties – where do I find all of that material? Has that all been provided?

MS GORY: No, your Honour. What has been provided is a reference to a source – Guaja, the Australian Democrats, which summarises that available literature. Then in footnote 3 the works that are relied on have been cited.

HER HONOUR: But not provided?

MS GORY: But have not been provided, that is correct.

HER HONOUR: So in relation to, for example, the 2013 data – so in relation to the other data that ordinarily you would expect to find, that has not been provided either. All we have is the data by reference to the link. Is that the position?

MS GORY: The data has been – that is correct except that the data has been referred to in the report. But the underlying data that comes from the AEC website, other than the points that I took you to, I do not believe has been provided.

HER HONOUR: Just so that I am clear, if one goes to pages 12 and 13, there are references to what are described as “AES surveys” that cover 1996, 1998, 2001, 2004, 2007 and 2010 general elections.

MS GORY: Yes, those have been provided. That is the dot point on page 1 of the report, the fourth dot point:

survey data from the Australian Election Study, a long-running, academic survey of Australian electorate administered immediately after Australian Federal elections; see” –

and there is a hyperlink there. They are the studies that your Honour has just referred to.

HER HONOUR: And so - I am sorry to go on about this – when I come down to paragraph 8.2, “Analysis of AEC data from the 2016 election” – not sourced, how do I know what that data is?

MS GORY: That data is – the underlying data comes from - - -

HER HONOUR: No, no, stop. How do I know, reading the report cold, without your information and knowledge, what that data is?

MS GORY: Yes, in two ways: first, the data is presented in a table that your Honour can look at.

HER HONOUR: No, that is the expert summary of the table. Where is the material so I can work out whether or not the table is (a) accurate and (b) what it is?

MS GORY: Your Honour would go to the data in the link that is provided under dot point 1, which is the data from the AEC website that is available. If your Honour thinks it is appropriate - - -

HER HONOUR: No, I do not want anything – I just want to know what the facts are so I can determine your application.

MS GORY: It would be a very quick process for the data files to be - - -

HER HONOUR: It is not a question about quick process. It is a question about whether or not you have complied with what is usual practice.

MS GORY: Yes, your Honour. My submission is that we have. The expert in this situation has.

HER HONOUR: Back to the critical point is that the relevant expert evidence contains analysis of voting data in a critical way which would assist the Court in making the factual findings of the kind referred to in Sykes v Cleary.

MS GORY: Yes, and, your Honour, the same point can be made by reference to Chief Justice Brennan in Free v Kelly at page 303. In that case, Chief Justice Brennan reconciles the approach in Wood and the approach in Sykes and his Honour says:

The principle to be derived from both cases is that an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect the voters’ true legal intent or, conversely, would not result in a distortion of the voters’ real intentions.

Then his Honour goes on to describe what was said in Sykes v Cleary and summarises it this way:

In other words, if the name of the disqualified Mr Cleary had not appeared on the ballot-paper, the voters’ preferences might have been differently expressed.

That is the legal point, the argument that we seek to make to which we say this evidence is critically relevant. In that context can I say this? It is important that the Court have all of the information before it so that it is best placed to get this question right. The reason why is that the stakes are very high in this case. It is a public interest case. The answer will determine who is to represent the people of the State of South Australia and it will affect, i.e. determine, the makeup of the legislative branch of the Federal Government.

So it is important that this is not just a case about the interests of private party litigants. This is a case in the highest public interest. In that context, in my submission, we say it is almost inconceivable that the Court will be shut out from having before it important evidence that will assist it in determining how to give best effect to the true intention of the voters.

I draw an analogy in my written submissions – which I will not go into detail here – to the principles that apply to the Court investigating and receiving constitutional facts and the different principles that apply in relation to finding those facts as opposed to ordinary facts in dispute between private parties in litigation – and I refer to Thomas v Mowbray and what Justice Heydon says there collecting the relevant authorities.

Here, Professor Jackman’s evidence is directly relevant to the critical question that I have outlined. What his evidence does, in very brief summary, is provide a statistical analysis of the publicly available voting data - - -

HER HONOUR: Have you not already told me that?

MS GORY: Yes, I will move on. I will move on to the Commonwealth’s objections – the Attorney-General’s objections. The Attorney-General puts forward two main objections, one based on relevance - - -

HER HONOUR: Which you have addressed.

MS GORY: Yes, and one based on dilatory conduct. I would like to make two more points on the relevance objection if I may.

HER HONOUR: Yes.

MS GORY: In addition to what I have just explained, which is why, in our submission, the evidence is directly relevant to the issue before the Full Court, even if ultimately the Full Court or a majority of the Full Court does not accept that, that is a matter to be decided - - -

HER HONOUR: Does not accept what – does not accept that it is directly relevant?

MS GORY: Even if the Full Court takes the approach that is contended for by the Attorney-General in his submissions today. That is a matter to be decided by the Full Court. It is not a matter to be decided at this stage of the proceedings. That is because if a majority of the Full Court accepts our approach, which is as outlined in our written submissions to the Full Court, and the approach that I have just summarised to your Honour today very briefly, then the factual question at issue, i.e. whether Mr Day’s presence on the ballot distorted the vote, will be a critical question for the Full Court. It would be obviously problematic if important evidence on that point had not been admitted due to a premature finding as to relevance.

So my second point is that, in our submission, the evidence is clearly relevant but in any event that is a matter for the Full Court. It is not a matter to be determined at this stage of the proceedings. At this stage of the proceedings what is appropriate is that the evidence be admitted, that the findings of facts – the disputed findings of facts - - -

HER HONOUR: It is not evidence to be admitted. It is a question about whether or not you can seek to rely upon it. Evidence and relevance in terms of – sorry, admissibility is a separate issue. At the moment you have an application to seek to rely upon expert evidence. Admissibility in terms of ultimately what is accepted and not accepted is a different question.

MS GORY: I take that point, your Honour. My contention was that the question of whether we are entitled at this stage to rely on the evidence should not be decided based on what the Full Court may or may not ultimately decide to do in accepting either the Attorney-General’s contended for approach in how the vacancy should be filled or in accepting our contended for approach in how the vacancy should be filled. At this stage we should be permitted to rely on the evidence to adduce the factual findings that we seek to be made in support of the submissions that we are making to the Full Court.

Related to that is that the evidence – the expert evidence that we seek to rely on supports factual contentions that are in dispute between the parties and that are in the finding of facts document. If your Honour turns to our revised finding of facts document filed on 12 January - - -

HER HONOUR: Do you mean additional findings of fact that are sought by your client?

MS GORY: Correct. So the additional findings of fact are those factual issues that are in dispute between the parties and that Ms McEwen seeks to be found and Ms McEwen seeks those facts to be found so that it can make submissions on those facts to the Full Court in answer to the referred questions.

Issue 3 in our findings of fact sought by Ms McEwen, which is at page 21, is this issue distortion of the vote and if you go to paragraphs 63 and 64 you will see that live issues that are in dispute – findings of fact that we are asking your Honour to make – point 63:

Had Mr Day not been on the ballot paper in the 2016 election it is likely that:

(a) Family First would have received a significantly lower number of votes above the line in South Australia;

(b) Ms Gichuhi would not have received enough votes to be elected as a senator to represent South Australia –

and the dot points reflected in submissions will say we will rely upon the evidence of Professor Jackman, we will rely on inferences from the findings of fact that we have sought to be made in the preceding paragraphs. Then the final finding of fact that we seek, 64:

The presence of Mr Day and of the Family First group above the line distorted the vote at the 2016 election.

Again we will seek to rely on the evidence of Professor Jackman and from inferences from the preceding paragraphs. In that context, your Honour, we seek for the export report to be – we say that the expert report is plainly relevant to your Honour’s task in deciding whether or not to make those findings of facts that are sought.

Your Honour, I think that deals with relevance - if I can move on to the dilatory conduct objection. First, we reject the assertion that Ms McEwen has been dilatory. It is important context that the Reference has been brought on in a very expedited matter - of course, properly so. All of the parties and the Court have made significant efforts to prepare in a compressed timeline and to prepare the matter for hearing as best they can.

The time period involved included what I am told was the Christmas and New Year’s break that happened this year. Mr Green’s affidavit, we submit, demonstrates that Ms McEwen took all reasonable steps to have the report prepared as quickly as possible, especially having regard to that holiday period. There is reference to attempts to follow up and so forth, even during the break.

Third, and importantly, Professor Jackman did not confirm that he would be able to act as an expert and provide a report until 4 January 2017, and that is evidenced by the affidavit. In other words, Ms McEwen did not have an expert to give evidence until that date. The parties were notified of his report, including the questions he had been asked, a brief summary of his contents and his profile, on 11 January, which was more than 10 days before the hearing, and the report was circulated on 13 January.

As to the asserted prejudice we say – and this links to my point about relevance and why it is critical that this evidence be before the Full Court, having regard to the fact that this is a matter in the public interest, not just about the interests of private litigants – we say that the interest in having the matter determined expeditiously and on the basis of all the relevant information outweighs any additional pressure that might be imposed on the parties, and we have all been subject to that pressure without complaint, and that is entirely appropriate in the context of this referral.

Next, we say that having regard to the resources available to the Attorney-General, we say it is reasonable to assume that if he disagrees with any aspect of the report he could be in a position to file opposing materials before the hearing. Again, we accept that it is a tight timeframe but we say given the resources available to him he can do it if needs be.

On that point I say it is significant that Mr Daley’s affidavit, which was filed yesterday, is silent about what steps, if any, the Attorney-General has taken to verify or analyse Professor Jackman’s report, which it received on Friday, or to identify an expert to assist it with this analysis. Those steps could have been taken, we say, from Wednesday. So there is nothing about what the Attorney-General did on Thursday or on Friday or yesterday in seeking to get up to speed and prepare for the hearing in respect of the report. In the absence of evidence along those lines, we say any objection about prejudice has no substance. So my submission is - - -

HER HONOUR: What do you say about the prejudice in relation to Mr Day’s submissions? There were two aspects Mr Hume raised this morning. Do you want to address those?

MS GORY: Yes, I will. Can I make one more point? My primary submission is that both parties should be in a position to prepare and present at the hearing on Monday but if, after reasonable efforts and appropriate efforts and evidence that those efforts have been made, the Attorney-General is not in a position to prepare his material before the hearing on 23 January then, in my submission, the preferable course would not be to shut out the evidence altogether because of the reasons that I have already explained, but would be to set down a further two and a half hour hearing in the week of 30 January, noting that Professor Jackman is back in Australia on 1 February so could give evidence - - -

HER HONOUR: It is a bit difficult to do that, Ms Gory, and you know this because on the 30th, 31st and following, the Court is sitting.

MS GORY: I understand that, your Honour. Again, this is - - -

HER HONOUR: That is the reason why it was listed for this week - - -

MS GORY: I understand, your Honour.

HER HONOUR: - - - in order to ensure that we could accommodate it and the matter is set down for referral on the matters currently agreed for 7 February.

MS GORY: I understand that, your Honour. My submission is simply that if the choice is between shutting us out from putting on the evidence that will assist the Court altogether and the inconvenience and difficulty on the other hand that will no doubt be imposed on the Court and on the parties, having regard to other commitments of the Court, other commitments of the parties and the compressed timetable, our submission is simply that one choose that inconvenience over shutting out the Full Court from having evidence before it that it will need to make a critical decision about who should represent the people of South Australia.

My submission is it is a combined issue, this distortion issue. It could be dealt with very quickly. You will have seen from the agreed document about how the trial should progress that it is only contemplated that Professor Jackman be cross-examined for - I think it is two hours by the Attorney-General and I think five minutes by Mr Day. So it is not going to be a long hearing.

If that course was to be followed then the Attorney-General and Mr Day will, in any event, have had about the same amount of time, taking into account the holiday period, to prepare as Ms McEwen has had. But again, my primary submission is necessity dictates that they get it ready and they can get it ready by Monday.

As to Mr Day’s submissions, can I deal first with the video link disadvantage, or asserted disadvantage? Your Honour, we are talking about evidence from an expert. Issues of credibility or demeanour and so forth do not arise.

HER HONOUR: Well, we do not know. I have no idea what their view is about his expertise. If the ordinary practice had been followed there would have been notification given upfront before he was formally retained, checking on whether or not there was objection to his expertise and to the questions. The usual practice now in trials is that no expert is retained by any party without notification being given of the identification of the person, their curriculum vitae or their qualifications, the proposed questions and the materials so that there can be, in effect, agreement upfront that those issues are not in dispute. So I do not think you can assume that he is – questions about his expertise and what he has done is not in dispute. Anyway, put that to one side. Issues of credibility do not arise, yes.

MS GORY: On that point, your Honour, again, given the way that the matter has been expeditiously set down and appropriately so, a lot of the usual practices – it has not been possible to follow - - -

HER HONOUR: I do not accept that. I think it is to the contrary. I think it compelled it that it be given upfront. That is the question. The question is why notification was not given in December.

MS GORY: And the answer to that is at that stage Ms McEwen did not have an expert.

HER HONOUR: You foreshadowed it. I asked your counsel, your senior counsel on directions on the 12th.

MS GORY: We were exploring - - -

HER HONOUR: That afternoon you were speaking to him, or speaking to somebody.

MS GORY: Yes, we were exploring the possibility of how we might develop and make good the propositions that we wanted to make good and that is the forensic path that one takes.

HER HONOUR: I understand the history of it, but I do not know that – I take issue with the contention that the usual practice does not apply. Anyway, we are back to Mr Day’s submissions and dealing with the video link forensic disadvantage.

MS GORY: Yes, so my first contention is - - -

HER HONOUR: No credibility issues arise. What is the next point?

MS GORY: Yes, and in that sense there is no forensic disadvantage of where the witness is by video link or in person. Your Honour, it would be – I understand one cannot make any assumptions but it would be very surprising to me if Mr Jackman’s credentials as a political scientist and an expert in statistical analysis and application of statistical analysis to the social sciences questions, given he is the leading figure in that area and he is - - -

HER HONOUR: So you contend.

MS GORY: Yes, we contend - - -

HER HONOUR: Anything else on this question about forensic disadvantage?

MS GORY: Yes, having regard again to the way this matter has been expedited and set down on 23 January again during, for some people, the holiday period, this is where we are at. Our expert will be in Los Angeles and we do not think having him give evidence by video link is a true forensic disadvantage and in any event that is outweighed by the benefit of the Court in having his evidence, for the reasons I have explained before, and that is my submission on the video link. I do not think it is a substantive objection.

As to Mr Day’s other objection which I understand was we have a lot of other stuff that we need to be doing for this case, again, in my submission, I do not think your Honour can take that into account - - -

HER HONOUR: Why?

MS GORY: Because we have all had a lot of stuff happening in relation to this case - - -

HER HONOUR: Does that not compel even more reason why you would not give notification earlier, knowing that there was a timetable in place that had been in place since 12 December? This is the question. Your submissions seem to proceed on the assumption that you had a right to, in effect, prepare your matter without regard to the obligations and demands imposed on the other parties. You have done yours and therefore too bad anybody else.

The whole reason why the directions hearing was held on the 12th was to put in place and to give people notice upfront by me asking your counsel “How many witnesses are you calling, who are they likely to be” and even then your counsel said “We think about three, maybe not” and then we made an order for the giving of high-level outlines of evidence so that everyone was appraised and aware of what was likely to happen, taking into account the circumstances that existed. That is the forensic point – not the forensic point. That is the point of prejudice and dilatory conduct put

against you both by the Attorney-General and by Mr Day. That is the problem.

MS GORY: I understand, your Honour. I do not accept that we sought – the characterisation that we thought we had a right to prepare our case not having regard to the timetable and so forth. The practical reality is the Reference came on. Ms McEwen is not a plaintiff. The Reference came on and - - -

HER HONOUR: She is a party, deemed to be a party from as early as November.

MS GORY: She is a party, correct. The timetable has been incredibly expedited. There have been steps at every turn and all the parties are doing the best that they can in those circumstances. As everyone who is in this game knows, the case evolves and you develop it and we have done the best that we can in those circumstances.

Again, the sorts of considerations that we are talking about now, which might have more weight if the litigation only affected the interests of private parties should, in my submission, give way to what is the public interest in having this critical and important evidence before the Full Court.

Again, having regard to the fact that this is not hypothetical, this is a real issue, it affects the people of South Australia, and in my submission it could not be said that because of a couple of weeks – it took us a couple of weeks to bed down the expert that the Full Court will be entirely shut out of hearing this critical and important evidence which we say is critical to how the Full Court will decide to fill Mr Day’s vacancy, and fill it appropriately. Your Honour, those are my submissions.

HER HONOUR: Thank you. Mr Williams, do you wish to go next, or is it Mr Hume.

MR WILLIAMS: I will go next, if that is convenient to your Honour.

HER HONOUR: Thank you, Mr Williams.

MR WILLIAMS: Your Honour, we have two points in objection to the evidence being permitted to be relied upon. The first, of course, is relevance and the second is prejudice to the proper conduct of the proceedings. In relation to relevance we point in our written submissions to the legal question that arises and that question is whether – this comes from re Wood [1988] HCA 22; 167 CLR 145 at 166 – whether by a special count the true legal intent of the voters so far as is consistent with the Constitution and the Electoral Act can be ascertained.

There is no application before the Court to reopen Wood, although some passing submissions are made about it by Ms McEwen. It is a decision of a unanimous Full Court and it presently constitutes the law that binds your Honour. The question that re Wood poses is a legal question. It is not a matter for evidence. It is reinforced in the present context by the terms of section 272 of the Electoral Act, which your Honour may recall from the previous Day Case, the effect of a vote for a party above the line, such a vote is taken to be a vote in descending order for each of the candidates of that party below the line. That is the legal effect of such a vote.

The position, of course, is quite different in a Senate case to a case in the House of Representatives. Sykes v Cleary makes that apparent on the page that our friend referred to, page 102 of Sykes v Cleary. At the top of the page, after referring to the situation in re Wood, the Court continues – or the plurality continues:

in light of the group system of voting which applies in Senate elections, it was highly probable, if not virtually certain, that a person who voted for Mr Wood would have voted for another member of his group –

The Court then continues that a special count in the Sykes v Cleary Case could result in a distortion because, of course, it was the House of Representatives election in which there was effectively one candidate from each party. On page 102, in the second paragraph starting with “As Mr Rose QC”:

points out, the Electoral Act draws a distinction between House of Representatives and Senate elections in the case of the death of a candidate . . . The reasons which lie behind the drawing of that distinction have equal application to the drawing of a like distinction between the election to the House of Representatives and to the Senate of candidates who are disqualified under s44.

Ms McEwen’s evidence invites the Court to go on a speculative journey about what might have happened if Mr Day had not stood and to conclude that the vote would in some way have been different. Now, it can be accepted that the vote would in some way have been different, but the reality is that many things might have happened if Mr Day had not stood. There might have been another high-profile candidate at the top of the Family First ticket. There might have been a whole range of events that could have occurred in that eventuality but that is a long way from the legal question that the Court has to determine and that is whether by a special count the true legal intent of the voters can be ascertained consistently with the Constitution and the Electoral Act.

If I can turn then to the prejudice to the proper conduct of the proceedings, I read the affidavit of Simon Matthew Xavier Daley sworn on 16 January. Can I take your Honour to pages 13 to 14 of that affidavit in the handwritten numbering at the foot of the page. That shows enquiries being made on 12 December with Professor Jackman and at the top of page 14 it shows that enquiries had already been made of another person to identify an appropriate expert. Then at the foot of the email, in the last substantial paragraph, there is a reference to the expedited timetable and the hearing that is scheduled for next week:

If we were to put on expert evidence about voting behaviour, we would need to provide a high level outline by this Friday –

that is, by 16 December. Now, thereafter, Ms McEwen consciously proceeded in disregard of that clearly understood obligation to the parties and to the Court. On page 17 of the affidavit, on 23 December the question of expert evidence is being pursued. At the top of that page, no reference to us, no reference to the Court about this matter and on 4 January – this is page 8 of the affidavit, this is part of the affidavit of Mr Green – paragraph 12:

On 4 January 2017 Professor Jackman informed me that he was in a position to provide an expert’s report –

Now, nothing said to us or to the Court then. The first time we were let in on the secret is on page 4 when, on 11 January, 4.53pm, we were told of the impending application which had just been filed, obviously prepared in the days before, and we were asked to respond as soon as possible whether our clients would consent to the orders being sought.

Now, we were criticised by Ms McEwen for responding before we actually had the report. That urgent response was no less than what she asked for. The response is, in that sense, surprising but going back to page 8 we were told on that day the subject matter of the evidence in the sense of the question that was to be asked, but we were not provided with any summary, contrary to the submission that has just been put.

We were told on page 8 in paragraph 13 that the report would be “short” and “based on an analysis of voting data”. Minds may differ as to whether the 18-page report ultimately filed meets that description. In any event it is a report which is incredibly diffuse in the conclusions it seeks to draw and the notice that it seeks to marshal in support of those conclusions. Whether or not they are all within the expertise of Professor Jackman is something that we have not, at this point, analysed but we certainly can say that a significant number of the key conclusions are in dispute and are hotly disputed.

HER HONOUR: As I explained to Ms Gory, I undertook an analysis or attempted to undertake an analysis of trying to identify, as you ordinarily would with an expert, what the materials were upon which each of the findings were made. Putting aside whether an expert makes findings, my understanding had always been they expressed opinions and court made findings, but we will put that to one side for the moment. Is it the position that you have all of, or access to, the materials which underpin this report?

MR WILLIAMS: The answer to your Honour’s question is that at this point I do not know.

HER HONOUR: Yes.

MR WILLIAMS: We certainly were not served with the literature and I have not yet received the literature. I have asked for steps to be taken to obtain the literature but that material has not been marshalled as yet. I would expect - - -

HER HONOUR: Despite the existence of the links, you were not served with a copy of the relevant analyses so that everyone was clear about what they were looking at?

MR WILLIAMS: No, your Honour, we certainly were not.

HER HONOUR: The data sets.

MR WILLIAMS: No, we were not served.

HER HONOUR: Yes.

MR WILLIAMS: For my part, I have not yet gone back to those websites to ascertain what kind of a task it would be, but I imagine from the descriptions that are given that the websites would contain a very large amount of data which, from the point of view of counsel seeking to analyse the report, would be a time-consuming and difficult task.

Had we been told in December, on the 12th or on the 16th, that an expert report was being obtained, it would have been open to the Attorney-General to, at that point, when everyone was still around in December, seek to identify an expert, engage the expert, identify the questions which had been asked, provide the basic material and then ask the expert to begin preparation so as to be ready to prepare and file a contradictory report.

HER HONOUR: It is more basic than that. It may very well have been that the task could have been narrowed by agreement – I do not know. You could have identified and looked at the materials and said they were either complete or incomplete and they should be complete so that everyone was working off the same set. There are practical reasons why notification and disclosure is required. It is to ensure that this process, especially in a process which is being truncated – the work is minimised.

MR WILLIAMS: Indeed, and especially here where on the prevailing law evidence of this kind is plainly irrelevant and that circumstance points against any kind of assumption that we might have, of our own initiative, enquired about an expert to go into these matters. So when one goes to the thrust of the report it is that the – or the thrust of the conclusions of the report, it is that the roughly 25,000 voters who voted for Family First above the line and the roughly 5,000 who voted below the line for Family First should have that preference disregarded.

It is so radical a proposition that the Court would not embark on an enquiry into it without a robust factual basis, including a proper opportunity for all parties to consider the factual basis and retain appropriate experts. I am not putting the submission that we should have a week or two weeks to seek to obtain an expert because it is in high measure impractical to think that that could occur.

Ms McEwen’s expert had a month for this, and when one looks at the density of the report and the diffuse nature of the matters that are called in aid of the ultimate conclusion, it would take us a similar period of time, assuming we could identify an expert promptly at this time of year, and that is no easy matter in January when many scholars are away. It would take something like a month to put on such a report so we do not seek that.

The proposition that is put is that a report which is both partisan - or evidence which is both partisan and partial should supply the basis of the Court’s determination of what Ms McEwen describes and undoubtedly this is correct, is an important matter. The evidence is partisan in the electoral outcome it seeks. It is partial in the basis upon which it is put forward in circumstances where neither of the other parties has had any proper opportunity to engage and consult with experts to contradict some of the propositions that underlie the key part of the conclusion.

The point that Mr Hume makes about cross-examination over the video link is a point of real substance. I cannot say to your Honour that I have prepared the cross-examination at this point because we only received

the report on Friday and I do not yet have the materials on which it is based, but I expect that the cross-examination would be significantly documentary and possibly quite heavily documentary and it is quite difficult to undertake such a cross-examination over a video link. So the prejudice to the proper conduct of the proceeding in that sense is very real as well.

So for those reasons, your Honour, the evidence being presently legally irrelevant, it having been brought before the Court in a quite irregular way with a conscious decision apparently having been made not to share with the other parties the enquiries that were ongoing with a view to putting on an expert after the 16 December notification of witnesses had been given, and a real prejudice to the proper conduct of the proceeding if the matter is determined upon evidence which is both partisan and partial, for those reasons your Honour should not permit the evidence to be relied upon.

HER HONOUR: Thank you. Mr Hume.

MR HUME: Your Honour, I only wish to make two points, both on the issue of delay and prejudice. The first point is that at the directions hearing on 12 December your Honour established a timetable that we say was calculated to crystallise the issues and the facts as early as possible in the matter. Dr Kirk said to your Honour that there would be no more than three witnesses and your Honour directed that all Ms McEwen’s outlines of evidence be served by 16 December and also directed that Mr Day serve any outlines of evidence by 22 December.

On 16 December we received three outlines of evidence as promised by Dr Kirk and it was on the basis of the evidence as it then was that my client decided not to file and serve any evidence on 22 December. So we say we just cannot recapture that moment in time.

Secondly, Ms McEwen refers to the public interest in the resolution of the matter. We say also that there is a significant public interest in the matter being properly argued and that involves the issues being crystallised early, the evidence being properly tested and submissions, including the parties’ written submissions, being based on the facts and the issues as they have previously been crystallised. The introduction of significant further evidence at this point is apt only to prejudice those interests. Those are the only submissions I wish to make.

HER HONOUR: Thank you. Ms Gory, do you wish to say anything in reply.

MS GORY: Yes, thank you, just briefly. Your Honour, the Attorney-General’s submissions, in one sense, seek to have it both ways. On the one hand they argue that the evidence is irrelevant and on the other hand they argue that they are prejudiced in that they have not had a chance to properly address it.

The submission as to Wood governing the question and that therefore this type of evidence is not relevant to the Full Court just completely ignores our submissions to the Full Court which I will not take your Honour to but they are developed in our outline of submissions at paragraphs 73 to 79. It ignores our submission about why, in the event that a finding is made that the AEC’s decision to print the above the line box was procured by fraud, the ordinary consequence should obtain, i.e. the invalid square should be treated as invalid.

In making that argument, which is not an argument that was dealt with or was addressed by Wood, our argument is that one of the reasons that the ordinary administrative law consequence should obtain is that because that would, in addition to other matters, overcome the effect that the distorting effect of Mr Day’s presence on the ballot has had on the voters.

Finally, the Attorney-General’s submissions ignore our submissions which are developed at paragraphs 87 to 91 of our Full Court submissions that the approach for which we contend is consistent with the statutory scheme and does give effect to the true legal intent, having regard to the structure of that scheme in the statute and also having regard to section 362 of the Act which deals with the Court’s power to void elections or declare a person not duly returned on a petition on the grounds of illegal practice.

In developing that argument we also refer to the test under 362 which is whether the illegal practice meant that the election was likely to – the result was likely to be affected and the evidence of Mr Jackman obviously goes to that question as well.

As to prejudice, the Attorney-General did not respond to my submission that there is no evidence before the Court of any steps taken to identify an expert or to seek to verify or contend with the matters in the report. I would say that means there is no evidence of prejudice before this Court and your Honour should take that into account.

The Attorney-General said it is not possible that his client could of his own initiative identify this issue because it only became live on 11 January. Your Honour, we disagree with that. This issue has been live since Ms McEwen submitted her notice of facts and legal contentions that she sought to rely on in that document. Ms McEwen referred to the fact that the vote had been distorted.

Then, in the findings of fact document that we were required to file before Christmas, we set out a number of facts that related to this very issue, the distortion of the vote in Issue 3. That was on 21 December and those findings of facts have subsequently been refined and revised in the document that we provided last week.

Finally, your Honour, the matters that the Attorney-General said were the type of things that in the ordinary course would be done early on in the piece when an expert is sought to be proffered, for example, looking at the type of data that is being relied on, looking at the qualifications of the expert, seeing if - your Honour suggested seeing if any agreement might be reached, we say there is no reason why that cannot be done now.

We say that the Attorney-General has the resources to determine whether it can agree or disagree with the propositions in the report. I think it is fair to say the complexity of the report and the underlying data has been overstated. The analysis is actually quite straightforward and relies on data, again, that is publicly available, easy to obtain from the link and, as I understand it, with the right software, very easy to manipulate.

We are more than happy to today – I know Professor Jackman might already be overseas, but to as soon as possible provide all of the literature and all of the data files and tables and so forth to Mr Day and the Attorney-General as soon as possible. But I would note that that material has not been asked for. It was raised for the first time by your Honour today.

HER HONOUR: No, no, there is a requirement under the Rules – usual litigation, so if you go to the Federal Court practice note, for example, which I unfortunately have some experience with; there is an obligation when you serve the report to serve the materials.

MS GORY: I understand. My submission is that most – I accept not all - - -

HER HONOUR: You did not do it.

MS GORY: Most was served - - -

HER HONOUR: You did not do it, you did not do it.

MS GORY: Your Honour, it was in the sense that it was linked and embedded in the report that was provided.

HER HONOUR: Well, no one would know whether or not you are both working off the same materials.

MS GORY: Well, if you click the link and download the data you know you are working on the same - - -

HER HONOUR: I assume it is an active website.

MS GORY: I believe it is a data file.

HER HONOUR: Anything else?

MS GORY: No, your Honour, that is all on that point.

HER HONOUR: All right. I propose to reserve my decision until I have dealt with the other seven matters and then I will come back to it. Does anyone have any objection to that process?

MR HUME: No.

MR WILLIAMS: Not for our part, your Honour.

HER HONOUR: Right. Can I deal with the next matters, please? In relation to the document summons which is sought - I received an email of it. It has not been issued. Is that still a live issue?

MS GORY: Yes, it is, your Honour.

HER HONOUR: I went through what is in paragraphs 1 to 7 and there are two number 4s I notice on the list which was attached in an email which has been sent by your instructor, I think, Ms Gory, to Mr Day.

MS GORY: Yes.

HER HONOUR: I understand 3 is agreed. When I went through it seemed to me that what I will call 1, second number 4, 5 and 6 were the subject of agreement by way of agreed facts. I can give you the agreed fact paragraph numbers because I have done the exercise.

MS GORY: Yes, your Honour.

HER HONOUR: Is this application opposed, Mr Hume?

MR HUME: It is, your Honour.

HER HONOUR: Thank you. I will take one example. The second number 4 is addressed in paragraphs 50 to 52 and 65(5) of the agreed facts. Why are we having another go at it?

MS GORY: Sorry, your Honour; if your Honour will just bear with me. Sorry, did your Honour direct my attention to 50 to 55 of the agreed facts?

HER HONOUR: I am doing the second number 4.

MS GORY: The second number 4:

Fullarton Investments Pty Ltd did not pay the $2.1 million consideration - - -

HER HONOUR: Correct. Is that not already addressed by agreed facts numbers 50 to 52 and what is set out in 65(5)?

MS GORY: Your Honour, I would say that those paragraphs maybe raise an inference that there was no purchase price paid, but they do not in their terms state that there was no – no $2.1 million consideration actually changed hands. I do not see that fact. In any event, your Honour, the documents that we seek do not go to that issue, they go to only two confined issues.

HER HONOUR: Which numbers on that list of 1 to 7?

MS GORY: They go to issue number 7.

HER HONOUR: Right.

MS GORY: All of the outgoings.

HER HONOUR: Yes.

MS GORY: And they go to a second issue that is not on that list.

HER HONOUR: How do I know what that is? I thought that is what - the basis upon the documents was sought.

MS GORY: Your Honour, if I could take you to the draft summons, or to the summons that we seek to have issued.

HER HONOUR: No, I want to know what the issues are.

MS GORY: Yes.

HER HONOUR: So it is only number 7, and what is the second issue?

MS GORY: The second issue is that we seek annual accounts of B&B Day.

HER HONOUR: No, that is data. I want to know what the issue is that they go to.

MS GORY: The issue that the - - -

HER HONOUR: Other than number 7, which I understand is the only one left on that list you want, what is the other issue?

MS GORY: Correct. The other issue is whether it is likely that distributions would continue to be made to Mr Day in the future irrespective of who controls B&B Day. Now, our submission is that – that is a fact that we seek at paragraph 4 of our revised findings of fact. So, paragraph 3 says:

In the years the Day Family Trust earned a profit, the profit was distributed to Mr Day and Mrs Day.

In paragraph 4 we say:

That policy was likely to continue.

Now, your Honour, our submission is that there is enough evidence by way of inference and from the available documents to support the finding of fact that we seek to be made, that that policy was likely to continue.

HER HONOUR: So why are we here asking for these documents?

MS GORY: Yes, the reason is, given that this is - will go to the finding of a constitutional fact, i.e. whether Mr Day had an indirect or a direct pecuniary interest in the lease, we think it is preferable that if there are evidently documents in the possession of Mr Day that can definitively address the Court - - -

HER HONOUR: Just one moment. Was this not the subject of the request initially when you sought production of documents and it was - - -

MS GORY: We sought copies of the annual accounts for the years – the previous three years, as in the previous three years from today. We are now seeking the accounts going back an additional three years. It is simply because those documents may obviously shed light on this question. We say it is preferable that if those documents are available that the Court should be making - - -

HER HONOUR: What do the ones show for 12, 13, 14 and 15?

MS GORY: They show that in the last two years the trust did not make a profit so there were no distributions to beneficiaries, although there were loans to Mr and Mrs Day. In 2012 and 2013 the trust did make a profit. In those years – in each of those years about $300,000 was distributed to Mrs Day and about $700,000 was distributed to Mr Day. That is why we say - we have enough by inference to say it is likely it would continue.

HER HONOUR: Yes, well, I am not going to order (b). What is the position in relation to (a)?

MS GORY: The position in relation to (a) - that is a fact that we seek at 21(b).

HER HONOUR: Yes, it is 21(b) because I have cross-referenced it to your additional facts sought.

MS GORY: Yes, we say B&B Day or Mr Day paid all outgoings in respect of the Fullarton Road property.

HER HONOUR: No, I have read it because I have cross-referenced it.

MS GORY: Yes. Again, we say there is enough evidence for your Honour to make that finding of fact based on what is before the Court presently, and they are the matters that are referred to in the previous paragraph, for example, the terms of the arrangement that B&B Day would pay all the costs associated with the transfer; that Mr Steinert, who was the director at the time, later sent the ASIC fee invoices for Fullarton to Mr Day saying “They are for you to pay”, and that the management report for Fullarton Investments does not refer to any outgoings for the Fullarton Road property.

But we say that this would be – this is powerful evidence of the trust that Ms McEwen asserts – the trust being that the Fullarton Road property is held on trust for B&B Day – if there are documents which show – which record that B&B Day or Mr Day paid the outgoings, so they paid rent – sorry, they paid land tax, insurance or council rates after the transfer, that is powerful evidence in support of the finding of facts that Ms McEwen seeks rather than relying on the inferences again, which we say are sufficient. We think it is preferable that the Court should have these common documents.

HER HONOUR: Were these documents not the subject of the earlier request?

MS GORY: Not in such a targeted way. They may have - - -

HER HONOUR: I have just asked my associate to go and get my file, but my memory was that they were included in the list.

MS GORY: They were not the subject of – they did not fall within the subpoena as issued. They did not fall within that category.

HER HONOUR: Was this a category that I considered before and rejected?

MS GORY: You considered a category about costs associated with the transfer. These documents would not fall, I do not think, directly within the terms of costs associated with the transfer. But, your Honour, in any event - - -

HER HONOUR: I will see what Mr Hume has to say in relation to category A.

MR HUME: Your Honour, it is opposed on three bases. The first is timing. On 21 November last year the Chief Justice - - -

HER HONOUR: Put aside the timing question for the moment.

MR HUME: Yes.

HER HONOUR: Is the category opposed?

MR HUME: It is, on two grounds - first, to a matter of form. The summons is addressed to Robert John Day but paragraph 1 seeks orders against both Robert John Day and B&B Day, so - - -

HER HONOUR: I know, but do not worry about that, I can deal with that, what I call the procedural question. I am talking about the substance from your client’s perspective.

MR HUME: Yes. We also say it does not pursue a legitimate forensic purpose. The documents that are sought concern outgoings payable in respect of the property. The real issue in this matter is whether Mr Day had a pecuniary interest in the lease and this category is - - -

HER HONOUR: Just one moment, please.

MS GORY: If it would assist the Court, I can hand up a copy of the summons.

HER HONOUR: No, thanks. Yes.

MR HUME: So the issue – the ultimate issue in these proceedings is whether Mr Day might receive income in connection with the lease, but this category seeks expenditures by Mr Day, and is not concerned with receipts by him. The category is also about the property as a whole, not the specific leasehold estate that is at issue in these proceedings, and there are a number of tenants on that property, not just the Commonwealth of Australia. So far as there is a contention, well - - -

HER HONOUR: That is a bit spurious, is it not? I mean, land tax would be total, would it not?

MR HUME: Yes.

HER HONOUR: The council rates would be by tenancy and insurance would – from an owner’s perspective, would have been by building.

MR HUME: Yes.

HER HONOUR: Yes.

MR HUME: Yes. We also say that the thesis put forward by Ms McEwen is that a person is more likely to be a beneficiary of a – or a person is a beneficiary of a trust if they pay outgoings in respect of trust assets, and we say that that is just not a tenable inference; there are any number of reasons why a person may pay outgoings, and many, perhaps most, beneficiaries do not pay outgoings in respect of trust assets. So, even taking their case at its highest, it does not establish the inference that Ms McEwen seeks to draw from it.

HER HONOUR: So just so I am clear, is it a fact – the fact being that Mr – I will only deal with your client at the moment – that your client did not make – sorry, is it your position your client disputes having made any payment after 11 November 2014 in respect of those things set out in the last two and a half lines? That is, are we talking about something that is in dispute? Forget about the legal effect for the moment.

MR HUME: I do not have instructions on whether it is disputed, your Honour.

HER HONOUR: Well, I think you should find out.

MS GORY: If I may, your Honour, that is a fact that we have been seeking - - -

HER HONOUR: Ms Gory, I understand that. I am having a discussion with Mr Hume and asking him whether he can get instructions to find out.

MS GORY: I apologise.

HER HONOUR: All right.

MR HUME: Yes. Your Honour, my instructing solicitor is here, I can speak to him now, if that is convenient.

HER HONOUR: All right. Does your instructor also act for B&B Day?

MR HUME: No.

HER HONOUR: All right. So can you get some instructions about whether the fact itself is in dispute otherwise we will have to deal with the production of documents?

MR HUME: Yes.

HER HONOUR: If you could get back to me. All right. Now, the tender bundle, Ms Gory, is of concern to me, and it is of concern to me for three reasons. First of all, when I analysed it, it contains duplicates. So, for example, the document numbered 12 is the same as what is in court book 503 in the main trial. Neither I nor the Full Court want duplicates. You are to go through and to remove all duplicates and provide an amended index and an amended form of the materials.

The second is the material in relation to Erickson, you will note yesterday that I understand the Court sent an email to the parties directing them to identify the relevance of each of the documents because there is not to be a document dump with the Court left to work out later on whether or not they need to consider them in reference to what issue. The Erickson material, is it the position that the parties have agreed between them that the Erickson material is to go in; that is, not the subject of dispute?

MS GORY: Yes, your Honour.

HER HONOUR: Including all of the annexures.

MS GORY: Yes, your Honour. The position in relation to the documents in the tender bundle is that there is agreement between the parties that all of those documents are to be treated as subject to Chief Justice French’s order 1.9 of 22 November 2016, which is to the effect that the documents will be evidence of the Reference and treated as evidence of the transactions or communications that they purport to record. So, in that sense the documents in that tender bundle have been agreed to be evidence on the Reference. What your Honour makes of them and what facts may be found in them is, of course, a matter for dispute.

If your Honour has the copy of the tender bundle, that is apparent from the front page of the bundle, or should be from the front page of the bundle. I can take your Honour to that order - - -

HER HONOUR: I know what the order is. I am not prepared to accept it on that basis. There are duplicates in it and there should not be, and I want to know what the relevance is of each of the documents. What went in by Chief Justice French’s order was a prescribed group of documents which were either exhibited to the letter, attached to the letter, which was the subject of the Reference, or I think three or four other things which were the subject of agreement and are clearly identifiable and identifiable by reference to why they are relevant. This is an enormous pile. I have a folder here, it goes on, and it has duplicates in it. It is to be fixed up and I want to know what the relevance is of each of the documents.

MS GORY: Yes, your Honour, we will absolutely remove all the duplicates. As to relevance, almost every document, if not every document in that bundle, is referred to in our finding of facts document.

HER HONOUR: No, it is not, that is my point; I went through it. So what I want clear is that – is this presuming or in a sense assuming what the outcome of this trial is?

MS GORY: I think there might be some confusion. The tender bundle is - - -

HER HONOUR: For me.

MS GORY: - - - for you.

HER HONOUR: For me and for this trial.

MS GORY: Correct. In that sense I am most – I had thought all, but your Honour has corrected me on that – most of the documents, close to all of the documents, are referred to by Ms McEwen in our finding of fact document and in that sense we would say they are relevant because we are going to at the hearing, if there is dispute on the facts that we seek to find, seek to take your Honour to those documents. Some of the documents - - -

HER HONOUR: So I am lost, and I know I am being slow, and I am slow, and I apologise, but what then does this mean “Documents agreed to be subject to French CJ’s order at 1.9”? This tender bundle was for my trial. It is not for the Reference.

MS GORY: Well, your Honour, your trial is part of the Reference - - -

HER HONOUR: No, it is not.

MS GORY: I see.

HER HONOUR: That is the confusion that your side just do not get, and have not got since day one. The Reference has been referred and the Full Court will deal with the Reference on the materials before them. My task, my sole task, is to make any additional findings of fact and that is all. Now, this does not go to the Full Court under Chief Justice French’s order unless - as I understand it, putting aside the duplicates – unless I make findings referable to it. Is that not the position?

MS GORY: Correct, your Honour, the position as I understand it - - -

HER HONOUR: So why does it have this thing on the front “Agreed to be subject to Chief Justice French’s order”?

MS GORY: The purpose of that was to avoid any issues about admissibility in the sense of having to, say, authenticate documents, call, for example, members of the Department of Finance to put in documents or deal with potential hearsay objections.

HER HONOUR: That does not deal with relevance.

MS GORY: That is correct. There is no agreement that the documents are relevant, that will be a matter of submission - - -

HER HONOUR: So just so I am clear, I want to make sure I understand – this is not going to the Full Court, this is only for me?

MS GORY: Correct.

HER HONOUR: Second, there is no agreement about relevance?

MS GORY: Correct.

HER HONOUR: Thirdly, that is what you are going to address, subject to the email that was forwarded to you by the Court yesterday?

MS GORY: As the Court pleases.

HER HONOUR: Thank you. That would include Mr Erickson and all his attachments. In other words, they are not being tendered – at the moment they are not before the Court. You are going to have to tender them. There may be agreement about relevance, but if they are not relevant they are not going to be in this before me as part of my evidence and part of my determination of the additional findings of fact.

MS GORY: I see, your Honour. I may have been confused. The idea of the agreement being subject to the order was to avoid a debate before your Honour and simply have the parties agree that everything in the tender bundle is evidence before your Honour - - -

HER HONOUR: No, because that assumes relevance. Is there agreement that they are all relevant between the three of you to an issue?

MS GORY: I do not believe there has been – my understanding - - -

HER HONOUR: Just stop.

MS GORY: Yes.

HER HONOUR: Admissibility has two aspects. One, do I have a document that is relevant, and, second, is it relevant and admissible. So to get a document in you have to satisfy two things. I understand that between you, you have pragmatically agreed that there is to be no dispute about hearsay evidence or source; so be it. That is a good practice. But that does not assume that it is relevant. You could put the telephone book in and assume that there is no dispute about it being hearsay. My task is you are not going to provide me with this folder and leave it with me to work it out. I want to know between you whether there is agreement about relevance and, if so, as to what issue.

MS GORY: Yes, your Honour - - -

HER HONOUR: I will ask the other - Mr Williams, is there agreement between you about relevance?

MR WILLIAMS: No, your Honour.

HER HONOUR: Right. Well, that is what I want. The email that was sent to you yesterday, you are going to have to work it out, because I will rule on it, if I am able, prior to the hearing. I want there to be no mucking around for days while we debate relevance of documents. I am trying to avoid spending time on it.

MS GORY: I understand, your Honour. My understanding was that this agreement was to avoid having that argument. I now understand that that is not the position.

HER HONOUR: You are dealing with two very different topics. You are dealing with hearsay admissibility and source. Relevance, which is the primary question for admissibility, is a different question.

MS GORY: I understand that, your Honour, but I think - - -

HER HONOUR: That is the first question. Relevance is the first question.

MS GORY: I think it would have been understood by the parties in response to French CJ’s order 1.9 in relation to the documents that are in the court book that that order precluded a party from saying, “Hold on, this document that is now in the court book and was transmitted to the Senate was relevant”.

HER HONOUR: I know, Ms Gory, but we are not dealing with Chief Justice French and the reference in the Full Court. You are dealing with a trial before me where I have to make additional findings of fact and I have to have a basis upon which I understand I am to launch, and at the moment I have a book which has a reference on the front which I do not understand which I have now clarified which should come off, I have agreement between the parties there is to be no dispute about source or what I will call exceptions to admissibility, hearsay and the like, but I have a dispute between you about relevance. What I want you to identify so I am clear is what each of these documents – whether or not there is agreement about relevance and, if so, to what issue, and if there is dispute I will rule.

MS GORY: Understood. Thank you, your Honour.

HER HONOUR: All right. Can I then deal with, please, the second candidate issue, and this is you, Mr Williams.

MR WILLIAMS: Yes, your Honour.

HER HONOUR: Just one moment, please. Sorry. I got concerned – and I just want to make sure I am clear – is it the position that that fact about the status of the second candidate is a disputed fact or not a disputed fact?

MR WILLIAMS: I think neither at this point, your Honour.

HER HONOUR: Well, we need to address it, I think.

MR WILLIAMS: We called attention to it because it did appear that in the event that Mr Day were held to be disqualified the second candidate on the Family First ticket would appear to become a likely contender for the vacancy, and before the Court made a declaration in that respect the Court would need to be satisfied that there is no outstanding question. We called attention - - -

HER HONOUR: Yes, I understand that is what you have done, but in order for the Reference in the Full Court and for me to make sure if there are other issues that I need to address they are addressed, I am going to direct counsel to confer about that issue and to let me know what the dispute is, if there is any dispute, and it may be that I will need to address it.

MR WILLIAMS: Yes, your Honour. We are endeavouring to obtain expert evidence for the Court’s assistance, but we have not at this point in - - -

HER HONOUR: On what issue?

MR WILLIAMS: On the question of the eligibility of Ms Gichuhi but at this point we have not engaged – we have not identified and engaged an expert.

HER HONOUR: When I read your paragraph 76, which is where it is raised – not 76, sorry - - -

MR WILLIAMS: Paragraph 78, I think.

HER HONOUR: Paragraph 78, I apologise. I had understood that what you are saying in 77 and following meant that she was eligible. Is that not the position?

MR WILLIAMS: That is our current understanding, your Honour, yes, and that is the submission that we put at this point.

HER HONOUR: Is that disputed by either Mr Day or Ms McEwen, or you do not know?

MR WILLIAMS: We do not know, your Honour.

HER HONOUR: Well, Ms McEwen and Mr Day’s counsel need to confer it with you and identify and let the Court know what the position is.

MR WILLIAMS: We will undertake that, your Honour, and inform your Honour on Monday.

HER HONOUR: Well, I want it done before Monday because it may be that it is going to have to be the subject of this trial. I actually want it bedded down and I want to know what the position is, so I want to know precisely if there is a dispute what the dispute is to the extent possible. It may be that you are going to need to have to disclose what it is in relation to this expert material in the usual way.

MR WILLIAMS: Yes, your Honour, we will - - -

HER HONOUR: At the moment it sits there like a red herring, and I do not know whether it is a red herring or not a red herring, and it is not very helpful. I understand why as the Attorney-General you have raised it but it would be nice to know what the position is.

MR WILLIAMS: We will consult with the parties and inform your Honour as soon as possible – inform the Registrar as soon as possible.

HER HONOUR: Thank you. While I have you can I deal with your proposal in the timetable that you would cross-examine each of these witnesses. That is not - - -

MR WILLIAMS: Your Honour, I do not propose to cross-examine. The allowance in the timetable accounts for the possibility that in the course of either the evidence-in-chief or the cross-examination some factual matter arises which my client would have an interest in clarifying or controverting, and the allowance in the timetable is made for the possibility that by leave I would seek to pursue that course, but I do not propose to cross-examine any of the witnesses at this point, apart from Professor Jackman if he is permitted.

HER HONOUR: Just let me find my – so is it the position that I have misread that? Is that the way it works?

MR WILLIAMS: Your Honour, it may be - - -

HER HONOUR: Can I have a copy? I have lost mine.

MR WILLIAMS: Yes, I am sorry, your Honour, we have not – your Honour has not misread it, we have not been clear enough. The allowance that has been made is – it is described as proposed cross-examination by in order with time estimate and five minutes in each case is allowed for - - -

HER HONOUR: That is why I got concerned. There will be no cross-examination by you. There may be by leave questions asked which will not be in a leading form.

MR WILLIAMS: That is so, your Honour – well, I had not considered the question of form.

HER HONOUR: That is why I am raising it with you, because it would seem to be that there may be an odd instance when you are not, but to this extent one would not ordinarily – as I think I set out in – the Court set out in the email that was sent you, permit parties who were of like interest to have a double dip.

MR WILLIAMS: In respect of the evidence presently foreshadowed for Mr and Mrs Smith, to the extent that we have an interest at all – and your Honour will understand that we stand to one side on these factual issues, our interest would be more aligned with Ms McEwen’s than Mr Day’s.

HER HONOUR: That is the reason why I am saying you should not be permitted to have a double dip, unless there is something peculiar to your client raised by their evidence.

MR WILLIAMS: The five minute allowance is for the possibility that something emerges which my client wishes to explore or contradict. I assume that the assumption implicit in your Honour’s question that we would be in the same interest effectively as Ms McEwen in respect of those two witnesses would mean that any such questions would be in non-leading form, but if either of those witnesses were to say something departing from the present proposed script, if I can use that term, that our client would wish to controvert then we would make an application, but I do not anticipate that any of this will arise, your Honour. It is simply noted in effect by way of a footnote that there may be such an issue in respect of which we would seek leave.

HER HONOUR: Thanks very much, I am grateful. Now, can I deal with what I will call – actually, one more thing. In relation to the findings of fact as part – are they all still sought, Ms Gory, your additional document?

MS GORY: The document filed on 12 January 2017?

HER HONOUR: Yes.

MS GORY: Yes.

HER HONOUR: Thank you. Now, in relation to general matters, can I ask these questions of each of you? In terms of accommodation in the Court, how many counsel will you have, Ms Gory?

MS GORY: Two, your Honour.

HER HONOUR: And solicitors?

MS GORY: Two, your Honour.

HER HONOUR: And, Mr Williams, you for the Attorney-General, counsel and solicitors?

MR WILLIAMS: Two and two, your Honour.

HER HONOUR: For you, Mr Hume, for Day?

MR HUME: Also two and two.

HER HONOUR: Perfect. The Court has arranged on the eighth floor of this building for each party to have an allocated work room and you are to speak to Deputy Registrar Musolino if you wish to access that room. Three, it is a trial and I expect counsel and the Court to robe. Four, for the sake of the sanity of the transcript people and for me to stay in their good books I am going to ask that you all speak from the central lectern in this court room rather than from your chairs.

In relation to transcript, I will tell you what the current arrangements are. The current arrangements are that it will hopefully be provided progressively in draft; that is, it will not be perfectly edited as you would usually get and saved up to AustLII at sort of half past six every night. The reason why I have asked that is because of the nature of the trial and the short time periods that are in place. It will be provided to the parties in that form at no cost. Once it is perfected then it will be loaded up to AustLII in the usual way that we all expect in relation to High Court transcripts.

In order for it to be provided progressively by email I ask each counsel, or at least one person from the party, to provide Deputy Registrar Musolino with one email address to which the progressive transcript is to be sent so that we can – there will be no dispute that everyone is to get it to the nominated person. Does anyone have any questions about those matters?

MR WILLIAMS: No, thank you, your Honour.

MS GORY: Thank you, your Honour.

HER HONOUR: Now, anything else practically before I adjourn to consider – I have to deal with Mr Hume on the document summons. Are there any other practical matters that I need to deal with for the purposes of Monday?

MS GORY: No, your Honour, thank you.

HER HONOUR: Mr Williams?

MR WILLIAMS: No, thank you, your Honour.

MR HUME: No, your Honour.

HER HONOUR: Mr Hume, what is the position in relation to this issue?

MR HUME: Yes, I have instructions. In respect of paragraph 7 of the proposed additional agreed facts, does your Honour have that?

HER HONOUR: I do.

MR HUME: That paragraph is in terms denied, however I have a proposition to which Mr Day can admit - - -

HER HONOUR: Yes, please.

MR HUME: - - - and it is that since the transfer of the Fullarton Road property to Fullarton Investments Proprietary Limited, all outgoings in relation to that property have been paid by the Home Australia Group, the Family First Party, B&B Day Proprietary Limited, Mr Day and the Bert Kelly Research Centre. So, the proposition is denied in terms because not all outgoings have been paid by Mr Day and B&B Day, but there is an admission in relation to those five persons and entities.

HER HONOUR: Thank you. So could you do me a favour? Could you have that typed up and emailed to both the Court and to the other parties so that everyone has it?

MR HUME: Yes.

HER HONOUR: Thank you. The Court will adjourn for a moment – and what was the time now? How about – I might give myself an hour, if that is all right, to 12 noon. Is that inconvenient to people?

MR WILLIAMS: No, your Honour.

MR HUME: That is convenient.

MS GORY: No, your Honour, thank you.

HER HONOUR: Thank you. I will adjourn to 12 noon.

AT 11.02 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.58 AM:

HER HONOUR: On 7 November 2016, the Senate resolved that certain questions about a vacancy in the representation of South Australia in the Senate, for the place for which Robert John Day was returned, should be referred to the Court of Disputed Returns pursuant to s 376 of the Commonwealth Electoral Act 1918 (Cth) (“the Electoral Act”).

The questions referred to the Court relevantly were:

“(a) whether, by reason of s 44(v) of the Constitution, ... there is a vacancy in the representation of South Australia in the Senate for the place for which Robert John Day was returned;

(b) if the answer to Question (a) is ‘yes’, by what means and in what manner that vacancy should be filled;

(c) whether, by reason of s 44(v) of the Constitution, ... Mr Day was at any time incapable of sitting as a Senator prior to the dissolution of the 44th Parliament and, if so, on what date he became so incapable;

(d) what directions and other orders, if any should the Court make in order to hear and finally dispose of this reference; ... .”

Substantial materials were attached to the letter referring the questions to the Court (“the Reference”).

The allegation is that Mr Day had a direct or indirect pecuniary interest in a lease agreement between the owner of his electorate office premises, as lessor, and the Commonwealth, represented by a Division within the Department of Finance, as lessee, and that that interest was of a kind prohibited by s 44(v) of the Constitution.

Trial of additional facts

On 21 November 2016, French CJ ordered that each of Mr Day, the Attorney-General of the Commonwealth and Ms Anne McEwen would be heard on the hearing of the Reference and be deemed to be a party to the Reference pursuant to s 378 of the Electoral Act.

On the same day, 21 November 2016, French CJ ordered that a number of documents were to be evidence on the hearing of the Reference, including a statement of facts. His Honour also ordered that, if the parties were unable to agree a statement of all the facts and documents relevant to the Reference by 22 December 2016, a hearing and determination of the facts would be heard by a single Justice with a view to a referral to the Full Court thereafter.

The parties agreed certain facts and documents. Their agreement is recorded in documents entitled “Areas of factual agreement between the parties” and “Agreed list of documents”, both filed on 23 December 2016. On the basis of the parties’ agreement of those facts and documents, the Reference was referred on 12 December 2016 to the Full Court for hearing on 7 February 2017.

Notwithstanding that agreement, Ms McEwen sought, and continues to seek, additional findings of fact. The additional facts are directed to three separate 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”).

At a directions hearing on 12 December 2016, an order was made for the trial of those additional facts to be heard on 23 and 24 January 2017. As is self-evident, that date is in advance of the hearing of the Reference by the Full Court.

The orders made on 12 December 2016 included an order that, relevantly, by no later than 12 noon on 16 December 2016, Ms McEwen file and serve a list of witnesses she intends to call to give evidence at the trial “together with an outline of the evidence she expects to adduce from that witness”. In compliance with that order, Ms McEwen filed a list of three witnesses, together with outlines of each witness’s evidence.

The summons

By summons filed on 11 January 2017, Ms McEwen now seeks leave to file and serve a report from Professor Simon Jackman, which Ms McEwen asserts is directed to Issue 3 and, in particular, to the following matters:

“(a) Does an analysis of voting data indicate whether, had Mr Day not been on the ballot paper for the 2016 election, it is likely that (that is, more probable than not) that a Family First candidate would have been elected as a Senator for South Australia?

(b) A literature review relevant to the question in (a)”.

There was no mention of Professor Jackman at the directions hearing on 12 December 2016, in the witness list filed by Ms McEwen on 16 December 2016 or in any other communication with the Court or the other parties at that time.

The questions in (a) and (b) referred to above were the questions asked of Professor Jackman. Ms McEwen also sought an order that Professor Jackman give his evidence by video link. Both the Attorney-General and Mr Day oppose Ms McEwen’s application seeking leave to file and serve the Jackman Report.

Application for leave to file and serve expert report

An affidavit sworn by one of Ms McEwen’s solicitors was filed in support of the application. It records that the first contact with Professor Jackman was no later than 12 December 2016, by email at 4.19pm. It also establishes not only that Professor Jackman had been identified by that date, but also that the email sent to him set out a “brief overview of this proceeding” and enquired “as to whether he might be able to assist with providing an expert opinion regarding voting behaviour”. The email is important for at least three further reasons. First, it records that it was a Professor Rod Tiffen who suggested that Ms McEwen’s solicitors contact Professor Jackman. There is no evidence of when Ms McEwen’s solicitors first identified the prospect of obtaining such evidence or when they first made contact with Professor Tiffen.

Second, the email identifies, with some precision, the substance of the evidence Ms McEwen was seeking to obtain from Professor Jackman. In particular, the email states:

“Assuming Mr Day is declared unqualified to be elected, Mrs McEwen intends to argue that the votes cast for Family First above the line (as well as votes cast for Mr Day below the line) should be disregarded on any recount.

To support this argument, we are interested in discussing the issue of voting behaviour with an expert such as yourself. In particular, we are interested in voting behaviours as regards a high profile, incumbent person who is at the top of a minor party ticket. We would like to explore whether there might be an association in voter’s minds between the (incumbent) person at the top of the ticket and the party, such that it might be argued that if that person was not on the ballot a voter may have cast his or her vote differently. We are also potentially interested in whether political advertising by a party that focuses on a personality such as Day is effective to influence voters to vote for his party.”

Third, and no less importantly, the email records, as was in fact the case, that if Ms McEwen was “to put on expert evidence about voting behaviour, [she] would need to provide a high level outline” by 16 December 2016 (emphasis added). Despite knowing that she was required to do so, Ms McEwen failed to inform the Court and the other parties of the prospect of this kind of expert evidence, or of her intent to call any expert at all.

The prospect of this kind of expert evidence was reinforced by no later than 15 December 2016 when, according to the affidavit filed in support of the application, junior counsel for Ms McEwen attended a teleconference with Professor Jackman and after a “preliminary discussion about the issues in the proceeding”, Professor Jackman was asked to undertake some preliminary scoping work [#6]. That preliminary scoping work was provided by email to Ms McEwen’s solicitors on 23 December 2016. In that email, Professor Jackman informed Ms McEwen’s solicitors that the analysis and report would be completed on or around 9 January 2017. The affidavit also records that, on 4 January 2017, Professor Jackman told Ms McEwen’s solicitors that he was in a position to provide the report but that he would not be able to attend the trial in Melbourne because he would be in Los Angeles, a fact Professor Jackman had foreshadowed in his email sent on 23 December 2016. It was not until 11 January 2017 that the Court or the other parties were informed of any of these matters. And a copy of the Jackman Report was not provided to the Court until 12.28pm on 13 January 2017. It was filed in the Court later that afternoon.

Those matters are significant. They are significant because, despite the Court directly asking Ms McEwen’s counsel for the names of their proposed witnesses, and then directing them to inform the Court and the parties by 16 December 2016 of their proposed witnesses, it was not until 11 January 2017 that the Court and the other parties became aware of the existence of Ms McEwen”s intention to call this witness or, at least, a witness of this kind. As the email to Professor Jackman records, Ms McEwen’s solicitors were aware that Ms McEwen was to provide a “high level outline” of Professor Jackman’s evidence by 16 December 2016. She failed to do so.

That failure to comply with Court orders has other consequences. The Attorney-General submitted that question (a) asked of Professor Jackman, to which I have referred earlier, is not within the scope of the Reference and the proposed evidence should be rejected as irrelevant. In particular, the Attorney-General submitted:

“It is the wrong question to ask whether the hypothetical absence of an ineligible candidate would likely have resulted in a different electoral outcome. The correct question is whether by a special count ‘the true legal intent of the voters so far as it is consistent with the Constitution and [the Electoral Act] can be ascertained’: In Re Wood [1988] HCA 22; (1988) 167 CLR 145 at 166 (The Court). Whether a special count ignoring only preferences for Mr Day or, as Ms McEwen contends, a special count ignoring also the preferences for the Family First group would ascertain the true legal intent of the voters is not a matter for evidence. It does not depend on expert opinion about what would have happened in a hypothetical election with a hypothetical ballot paper.

It depends, rather, on whether the actual ballot papers in fact cast can now be scrutinised in a manner that would give effect to the true legal intent of the voters so far as it is consistent with the Constitution and [the Electoral Act]”.

Although the Attorney-General accepted that the vote at the election would have been different if Mr Day had not stood, he further submitted that the question asked was speculative because many things might have been different in a “hypothetical election”, including for example that another candidate might have stood. These matters do not appear to be referred to or considered in the Jackman Report.

The Attorney-General also submitted that the “findings” purportedly made by, and the materials referred to and relied upon by, Professor Jackman are “diffuse”. That last statement requires explanation. The Jackman Report refers to, and relies upon, data and the contents of a literature review which, contrary to established practice, was not provided to the parties or the Court at the time the report was provided[1]. There are facts asserted in the Jackman Report which, although not clearly sourced, would appear to originate from one or more data sets of the Australian Electoral Commission (“the AEC”), which do not appear in the materials presently identified by Ms McEwen as relevant for the trial or referred to in the affidavit of an officer of the AEC, filed by the Attorney-General. The fact that some of the data sets were said to be able to be accessed by an internet link provided in the Jackman Report is not, in my view, a sufficient answer.

If the parties had been told of the intention to call Professor Jackman at the time that he was retained, and been provided with his qualifications as well as a draft of the questions and the materials (or at least a list of them) to be provided to Professor Jackman, then many of these issues might have been avoided.

Experience of those issues, and their consequences, has led to changes over the last few years in the way modern litigation deals with experts as witnesses. Those changes include that no expert was to be retained without notice being given to the other parties of the name and qualifications of the proposed expert, the proposed questions and the proposed list of materials. That process of notification to, and reply, by the other parties to the proceeding has avoided, or at the very least substantially reduced, complaints and cross-examination about relevant expertise, the form of the questions and the materials referred to and relied upon by the expert. Indeed, in some instances, that process of notification and reply has avoided the need for an expert to be called on some or all of the issues in dispute.

In the present matter, the Court ordered that notification was to be given by 16 December 2016, and it was not. And in any event, notification should have occurred by no later than 23 December 2016. That did not occur.

A further matter should also be noted. The Jackman Report concludes with a section headed “Conclusion”, in which Professor Jackman states “I made the following findings and conclusions”. Experts do not make findings. Courts do[2].

Relevance

There is a live issue as to whether the evidence sought to be adduced through the Jackman Report is relevant to, or goes beyond, the terms of the Reference. The Court has no jurisdiction to go beyond the terms of the reference as transmitted under s 377 of the Electoral Act[3]. As noted earlier, the argument sought to be advanced by Ms McEwen through the Jackman Report purports to espouse a view about what would have happened in a hypothetical election with a hypothetical ballot paper. In addition, Professor Jackman purports to espouse a pure personality view of politics, which is, at least arguably, contrary to Australia’s system of preferential voting; the Jackman Report arguably does not reflect the legal framework in which Senate elections take place, and in particular, the manner in which s 272 of the Electoral Act treats ballot papers marked above the line.

Conclusion

As a result not only of those matters but also the other procedural deficiencies to which reference has been made, there is insufficient time for the other parties to address the Jackman Report. Put simply, and contrary to Ms McEwen’s submissions, the other parties do not have a reasonable opportunity to test Professor Jackman’s opinion, whether or not it is relevant. And given the history of the matter, it is not appropriate to adjourn the hearing of the trial of the additional facts to a later date. It is no answer, in my view, for Ms McEwen to contend that, because of the public interest in the outcome of the hearing of the Reference, the Court should not allow “inconvenience” or “pressure” to stand in the way of the reception of the Jackman Report. Indeed, the fact that the Reference self-evidently involves a matter of public importance serves only to underscore the importance of the parties, including Ms McEwen, adhering to orders governing its conduct.

For those reasons, the application for leave to file and serve a report from Professor Jackman is refused.

Application for evidence by video link

It is unnecessary to consider the application for Professor Jackman’s evidence to be given by video link.

Orders

The application for leave to file and serve the report of Professor Simon Jackman is refused.

The summons is otherwise dismissed.

What is the position in relation to costs? Do you seek costs, Mr Williams?

MR WILLIAMS: Yes, your Honour.

HER HONOUR: Mr Hume?

MR HUME: Yes, your Honour.

HER HONOUR: Ms Gory.

MS GORY: Yes, your Honour, I will address costs and, if I may, one other issue that arises from your Honour’s decision. In relation to costs we say costs should be reserved. The reason is that in electoral matters of this kind, including References from the Senate, there are special rules that apply in relation to costs.

HER HONOUR: Yes, I understand that.

MS GORY: Therefore, it is appropriate that the costs issue be dealt with at a later date in consideration of those issues after the result.

HER HONOUR: I will hear what the others have to say about that. Is that all you want to say on costs?

MS GORY: Yes, your Honour.

HER HONOUR: Mr Williams?

MR WILLIAMS: Your Honour, whatever may be the special position, if that is an apt phrase, in relation to electoral matters generally, in relation to this aspect of the matter an order for costs should be made because the application was brought, as your Honour’s reasons reflect, in, we would say, flagrant disregard of the Court’s directions as to evidence. It has put the Court to the wastage of time involved in preparing the matter and dealing with it, and it has put the parties to the expense and distraction from the principal issues of dealing with an application that should have been made in a timely fashion. For those reasons, whatever the general rule may be, an order for costs is appropriate here.

HER HONOUR: Mr Hume, do you wish to say anything in addition?

MR HUME: I do not wish to add anything.

HER HONOUR: For the reasons given in the judgment, those reasons, in my view, provide a sufficient basis that it be ordered that the summons is otherwise dismissed with costs. Ms Gory?

MS GORY: Yes, your Honour. In light of your Honour’s decision, Ms McEwen will seek to put on, before your Honour at the hearing, the raw data that is the subject of the report, by which I mean, for example, the election results at the various elections in South Australia, the election results for Family First - - -

HER HONOUR: I am not going to deal with this in a vacuum.

MS GORY: Yes.

HER HONOUR: You will need to adduce – you will need to provide hard copies of what it is you propose to tender and you will need to deal with it in the way we have dealt with the past. So that is you will need to deal with it in the same way as the tender bundle. You will need to consult with your opposing counsel – is there any dispute about source and then relevance.

MS GORY: Yes, your Honour. We will put the underlying document in the tender bundle. What we also foreshadow doing is adding to our issue 3 findings of facts a series of facts, for example - - -

HER HONOUR: I am not doing this on the run. Do you have a piece of paper with them written out, typed up?

MS GORY: No, your Honour. I am just foreshadowing what Ms McEwen is going to do.

HER HONOUR: Well, I will not deal with that. The hearing is on Monday.

MS GORY: Yes.

HER HONOUR: The parties are obliged and required to deal with what is before the Court in a formal way at present. You will need to make application and you will need to get their – either consent or opposition to it. I will look at it and I will rule on it before Monday.

MS GORY: Understood. Thank you, your Honour.

HER HONOUR: There is a cut-off point and the cut-off point is long past, I suspect.

MS GORY: Yes, your Honour. Our submission will be that the data is uncontroversial and is relevant to - - -

HER HONOUR: I understand that, but the other side are entitled to look at it. No one has looked at it because we cannot find – we are not certain that we actually have what you are looking at so we need – there are questions just as there with the tender bundle. What is it – three questions – what is it, what does it look like, is there any dispute about its source or admissibility generally and then a question of relevance.

MS GORY: Understood, your Honour, thank you.

HER HONOUR: As I said, I want all that resolved finally so we are starting Monday on a firm foundation and a sound footing. There are no surprises on Monday.

MS GORY: Yes, your Honour. It is uncontroversial election result data that comes from the AEC website.

HER HONOUR: You assert that but no one knows that. The question is we want to look at it and deal with it in a proper way.

MS GORY: Understood, your Honour.

HER HONOUR: When will that be done by?

MS GORY: We can do it by the end of tomorrow, if that is convenient to the Court.

HER HONOUR: Well, not me so much as the parties because then they will need to address it in the same way that the Court asked you to address the tender bundle. How big is it?

MS GORY: Your Honour, it will probably be three or four pages of results and then I do not know how big the AEC election data file is.

HER HONOUR: No, that is an interesting - - -

MS GORY: I think it is actually easier electronically because you can manipulate it if you download it electronically. It is not a large file. The election results - - -

HER HONOUR: You will need to discuss this – you, counsel, will need to discuss this with Mr Williams and Mr Hume. You will need to come up to it and if you cannot agree it then you can send me what the dispute is and I will resolve it before trial. But I am not starting Monday having a fight about this. I want Monday starting with everyone clear about what the material is that is in dispute, what the factual findings are I am being asked to make by reference to what data because I have to prepare as well so that Monday and Tuesday are used efficiently.

MS GORY: As the Court pleases.

HER HONOUR: I think it would also be useful to revisit the timetable given we have dealt with the Jackman Report. It is apparent that if we start at 9.30 we are going to have finished the evidence by close to 11 o’clock. Does that mean that we are going directly into your submissions at 11 o’clock? Is that the current proposal?

MS GORY: Yes, your Honour.

HER HONOUR: Right, well that is even more reason why there is to be no surprises on the Monday. The tender bundle is settled in terms of admissibility subject to relevance and I will rule on those and anything in addition is before the Court and the parties – and I mean that – the other parties have time to look at this data and analyse it by reference to what it is you seek to make of it. So they are entitled, as is the Court, to know what the data looks like and what it is you seek to do with it. Mr Williams, anything in your perspective that arose out of that?

MR WILLIAMS: No, not for our part, your Honour.

HER HONOUR: Mr Hume?

MR HUME: Nothing, your Honour.

HER HONOUR: Thank you and thank you for your assistance. Adjourn the Court.

AT 12.23 PM THE MATTER WAS ADJOURNED

---

[1] See, eg, par 3(e) of the Harmonised Expert Witness Code of Conduct, being Annexure A to the Expert Evidence Practice Notes (GPN-EXPT) of the Federal Court of Australia.

[2] See, eg, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 729-730 [59].

[3] In re Wood [1988] HCA 22; (1988) 167 CLR 145 at 157; [1988] HCA 22.