Re Day [2017] HCATrans 85 (11 April 2017)

Last Updated: 13 April 2017

[2017] HCATrans 085

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 ADELAIDE

ON TUESDAY, 11 APRIL 2017, AT 2.15 PM

Copyright in the High Court of Australia

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

MS S. GORY: May it please the Court, I appear for Ms McEwen. (instructed by SBA Law)

MR J.L. WHITINGTON: If the Court pleases, I appear for Mr Robert Day, in Adelaide. (instructed by Griffins Lawyers)

HER HONOUR: Mr Williams.

MR WILLIAMS: Your Honour, we move on the summons filed on 6 April and read the affidavit of Timothy John Courtney, affirmed on 5 April.

HER HONOUR: I have read those materials, Mr Williams.

MR WILLIAMS: Those are the orders we seek, your Honour.

HER HONOUR: Is there any objection, Ms Gory?

MS GORY: No objection.

HER HONOUR: Mr Whitington.

MR WHITINGTON: No, they are consented to, your Honour.

HER HONOUR: I will make orders then in the terms of the summons, together with the schedule of directions. I propose to read the orders as follows:

1. The Australian Electoral Officer for the State of South Australia cause to be undertaken a special count of the ballot papers cast for candidates for election for the Senate pursuant to the writ issued by the Governor of South Australia dated 16 May 2016 for the election of 12 senators for the State of South Australia for the purpose of determining the candidate entitled to be elected to the place for which Robert Day was returned.
   
2. The special count of the ballot papers be conducted in accordance with the directions set out in the Schedule hereto.
   

3. There be liberty to apply to a Justice of the Court in respect of any further questions which may arise as to the method of counting of the ballot papers.
   
4. Upon completion of the special count, the Australian Electoral Officer for the State of South Australia report to the Court the twelve (12) candidates who, in order, would be elected upon application of the rules for counting set out in section 273 of the Commonwealth Electoral Act 1918 (Cth) and, for present purposes, a Schedule of directions will be those numbered one to eight set out in and attached to the summons filed by the Attorney-General of the Commonwealth on 6 March 2017.
   

MR WILLIAMS: May it please the Court.

HER HONOUR: Mr Williams, what is then to happen? Do we need another date or will that be the subject of further application?

MR WILLIAMS: Your Honour, the electorate – the AEC anticipate that the vote will be counted on Thursday. Whether or not an affidavit can be filed on Thursday might be another matter, it may well be Tuesday following Easter before that occurs.

HER HONOUR: Yes.

MR WILLIAMS: One would expect thereafter that there would be a summons filed together with the affidavit for final orders.

HER HONOUR: I understand. Do you want a date for that now, a date returnable for that summons?

MR WILLIAMS: Yes, your Honour, if that is convenient.

HER HONOUR: Sometime next week then would be preferable, would it not?

MR WILLIAMS: Yes, your Honour.

HER HONOUR: Do you have a preference?

MR WILLIAMS: I will not be available next week, your Honour. We would take whatever date is convenient to the Court.

HER HONOUR: On the basis that it is filed on Tuesday, then is Wednesday too early?

MR WILLIAMS: No, your Honour.

HER HONOUR: Right, well, I will list it for 9.30 on Wednesday, 19 April.

MR WILLIAMS: May it please the Court.

HER HONOUR: Ms Gory.

MS GORY: Yes, your Honour, just one matter. My learned friend referred to an application - foreshadowing an application for final orders. I just wanted to draw your Honour’s attention to the matter set out in paragraph 24 of the Attorney-General’s submission, raising the possibility in relation to an issue of the constitutional qualification of a candidate who may be the next in line to be elected, and in the event that that person is on special count the twelfth candidate to be returned then there may be issues that need to be dealt with.

HER HONOUR: Well, it is a bit Delphic for me so you will have to be a bit more direct. I understand that that issue was an issue raised when the matter was before me as a single Justice. Is it not yet resolved?

MS GORY: No, your Honour. Does your Honour have the outline of submissions filed by the Attorney-General in support of this summons?

HER HONOUR: I do.

MS GORY: If your Honour turns to paragraph 24 at the final page - - -

HER HONOUR: No, I know that. What I am saying is has it not progressed since the last time it was raised before me months ago?

MS GORY: Yes, your Honour, it has progressed.

HER HONOUR: So where are we at is what I am asking.

MS GORY: I understand the Attorney-General has obtained an expert report as to issues of Kenyan citizenship law. That report has been provided to us. We are reviewing the report and making our own inquiries. My understanding is that if this candidate is the person elected under the special count the Attorney-General will seek to tender that report before the Court. In that event, there are a number of matters that we would wish to raise with the Court.

HER HONOUR: So let us cut to it.

MS GORY: Yes.

HER HONOUR: So if that candidate is the one elected, do you say that there is a constitutional issue about her election?

MS GORY: There may be.

HER HONOUR: Well, maybe is not good enough. Do you know what the answer is yet?

MS GORY: We are seeking expert advice about the contents of the Attorney-General’s expert report.

HER HONOUR: When did you get that report?

MS GORY: I believe it was some time after the – 27 March.

HER HONOUR: Right. And when will you be in a position to tell me whether or not there is an issue?

MS GORY: Well, your Honour, in accordance with the Attorney-General’s approach, the first step would be to confirm whether or not this is the candidate that was returned.

HER HONOUR: I know, but assume for the moment it is, when will you be in a position to tell me whether or not it is an issue?

MS GORY: Your Honour, we can be in a position to tell you before the hearing scheduled for next week. We have not yet finalised our inquiries in relation to getting expert opinion – advice on the expert report provided us to the Attorney-General but - - -

HER HONOUR: That is what I am trying to work out, when it is going to happen, so I can work out whether or not Wednesday is too early.

MS GORY: If your Honour will give me a moment, may I get some instructions?

HER HONOUR: Sure. Mr Williams, what is the Commonwealth’s – sorry, Mr Whitington, just one moment. What is the Commonwealth’s position, assuming that it is that candidate?

MR WILLIAMS: Well, the Commonwealth is presently not aware of any constitutional impediment, but if one is – if a question is raised, we will be ready with evidence.

HER HONOUR: Thank you. Mr Whitington, do you wish to say anything about this matter?

MR WHITINGTON: I do, your Honour. Sorry to interrupt earlier. In fact, I should inform the Court that we act for this particular candidate, Ms Lucy Gichuhi is her name.

HER HONOUR: Yes.

MR WHITINGTON: We have recently been retained following the delivery of the Full Court’s decision. The expert report obtained by the Attorney-General is based on a number of factual assumptions. We have been in communications with the Attorney-General with respect to the procuring of an affidavit from Ms Gichuhi to, in effect, made good those factual assumptions. I have had a discussion with the solicitor for the Attorney today.

In answer to your Honour’s question as to whether Wednesday may be a bit early, to the extent that Ms Gichuhi is, as it were, the winner, it might be advisable, in my submission, to put back the further hearing date until about Friday to facilitate the filing of any expert evidence and her affidavit that might be necessary as a result of that recount outcome.

HER HONOUR: Well, I am not minded to do that unless there is an issue. I mean, I want to know first of all whether there is an issue, which is what I am trying to work out, on the assumption that your new client is the candidate. At the moment I do not have an issue.

MR WHITINGTON: I agree that it is hypothetical, your Honour, yes.

HER HONOUR: Well, then, I am not moving on hypotheticals and it will be listed for Wednesday unless someone can give me a good reason why it should not be. This matter needs to be resolved. It is not a new issue.

MR WHITINGTON: If the Court pleases.

HER HONOUR: Ms Gory.

MS GORY: Your Honour, we can advise the Court if there is an issue by Thursday, if that would be convenient.

HER HONOUR: Well done.

MS GORY: Thank you.

HER HONOUR: Well done. That is great assistance. All right, you let us know by Thursday, otherwise the matter will be listed for 9.30 on Wednesday morning.

MS GORY: Yes.

HER HONOUR: If something has arisen on Thursday then I can make directions in chambers. Is there any objection to that course?

MS GORY: No, your Honour.

HER HONOUR: Mr Williams? Mr Whitington?

MR WILLIAMS: No, your Honour.

MR WHITINGTON: No, your Honour.

MS GORY: Your Honour, may I mention in passing one more matter?

HER HONOUR: Certainly, please.

MS GORY: In the event the Attorney-General does seek to tender the report of their expert we - - -

HER HONOUR: Well, they will not need to unless there is an issue, but on the assumption that there is an issue, yes.

MS GORY: Yes, we would seek copies of drafts of the report and communications with the expert. The reason I mention it is that we – I understand we have requested that information and thus far it has not been provided, so I just want to mention that. I assume in due course it would be provided if the Attorney-General does seek to rely on the report.

HER HONOUR: Again, this is hypothetical. Mr Williams, what is the position with this?

MR WILLIAMS: Your Honour, we have informed the other parties of the factual assumptions which we have asked the expert to act on. We have consulted the other parties about the terms of the brief to the expert, including those factual assumptions.

HER HONOUR: Yes.

MR WILLIAMS: We will prove the facts if it becomes necessary, and communications between my solicitors and Ms Gichuhi or my solicitors and

the expert are privileged communications and we do not propose to produce them.

HER HONOUR: Ms Gory.

MS GORY: Our position is if they seek to rely on the report and tender it there is no privilege over those communications, but we can deal with that when it arises.

HER HONOUR: Well, we have not got to that point yet, so if it arises I will deal with it.

MR WILLIAMS: May it please the Court.

MS GORY: Thank you, your Honour.

HER HONOUR: 9.30 Wednesday morning. Thank you. Adjourn the Court.

AT 2.26 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 19 APRIL 2017