A thread on choice quotes from Gordon J in last Thursday's directions hearing in the s44 challenge arising from last election, Staindl v Frydenberg. The big issue is potential remittal to the Federal Court. https://twitter.com/jeremy_gans/status/1199523730478624768

Gordon's reasoning for a remittal is straightforward: the parties can't seem to agree on the facts and have been very slow about it, so this is becoming a fact management case and the Federal Court is better at handling that. (I'm not sure why that is - the HCA's Jan holiday?)

The problem (for Frydenberg anyway) is that Gordon J thinks (sensibly) that both the facts and the law need to be remitted together, as they are intertwined. And that means that some Federal Court judge will be interpreting s44 of the Constitution and deciding Frydenberg's fate.

The A-G absolutely does not want that to happen, in particular because (on current law) there is no appeal from the Federal Court's decision. The A-G (rightly I think) thinks the s44 issues are High Court level ones (and, I suspect, full court ones.)

So, Gordon's threat (indeed, intent) to remit is something the A-G has to overcome, by somehow convincing the parties (Staindl and Frydenberg) to pull their fingers out and come to an agreement on experts and facts. Staindl doesn't care about remittal, so good luck with all that.

The experts themselves are another bottleneck. There's a time difference and Staindl's Hungarian expert can't readily be told to rush. And Staindl doesn't even know who Frydenberg's expert is. And there're all these lay facts (Frydenberg family history) to manage as well.

Effectively, Gordon has told the A-G to get involved in all of that, presumably by putting the government's money and legal resources into the expert and lay evidence management and generation. Otherwise, the Federal Treasurer's job is in the hands of some Federal Court judge.

Gordon basically thinks it's too late already, but has - against her better judgment, she says - given the parties until 12 December to sort EVERYTHING out. Any problems, any delays, anything and it's off to... Bromberg J? Mortimer J? Heh, Vasta FCJ?... for a solution.

(No, I don't think it will - or, most likely, even can - end up in the Federal Circuit Court or whatever it'll be called by then.)

What isn't explained is why Gordon J didn't act on all of this much earlier and why she is intervening now. A possible answer is the A-G's intervention a few days before this hearing. May be regretting that now...