Hopper & Anor v State of Victoria

[2025] HCATrans 48

[2025] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M10 of 2025

B e t w e e n -

PAUL HOPPER

First Plaintiff

MELISSA LOWE

Second Plaintiff

and

STATE OF VICTORIA

Defendant

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 18 JUNE 2025, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   I note the appearances as in the Court list.

MR B.K. LIM appears with MS K.E.W. BONES for the plaintiffs.  (instructed by Ripple Legal Pty Ltd)

MR T.M. WOOD appears with MS J.A. VOGAN for the defendant.  (instructed by Victorian Government Solicitor)

HIS HONOUR:   Mr Lim, this is your application that has brought the matter on for directions.  I can see the forensic purpose of the subpoenas you seek on the face of the pleading.  My concern is with whether subpoenas of this magnitude are really required in this case.  Could you explain why you cannot get the requisite information from publicly available sources, or perhaps from Mr Wood’s client?

MR LIM:   Yes, I can.  So, on the second point, as to whether it can be got from Mr Wood’s client, we waited for the filing of the State’s defence before issuing the subpoenas.  On the relevant matters, as your Honour appreciates, the State pleads ignorance, which is why we have turned to the nominated entities to seek the information.

As to the breadth of the subpoenas, they look longer than they really are, and I can explain.  There are really two categories of information sought.  If I can take the subpoena to the Cormack Foundation as an example, because the other two are in the same form, categories 1 to 3 merely concern the relationship between the nominated entity and the relevant registered political party.  There is a limited number of documents sought by those three categories.  We do not know if there are any shareholder agreements or, in some cases, whether there are any trust deeds, but if there are, we want them.

Category 4 is then the principal other category, which your Honour appreciates are readily identifiable financial records.  They are relevant to the fact concerning the magnitude of the nominated entity’s resources that can be deployed within the impugned exception to capped political donations.  So, that is why we cannot get that information from public records.  We can ascertain, in some cases, donations that these entities have made, but our point in the case is more that they have a capacity to make donations that far exceeds the size of the capped donations market.

HIS HONOUR:   Mr Lim, if we just take category 4, are annual financial statements publicly available?  Are they filed in some register?

MR LIM:   No, and because, as we understand it, these corporations are small companies, it is not necessarily the case that they are required to have financial statements, which is why we have also included the alternative paragraph 5.  We hope that paragraph 5 is not necessary, because we would expect the company to have financial statements, but if for some reason they do not, then we seek one or more documents that gives us the underlying information that we seek from financial statements.

HIS HONOUR:   Well, management accounts are different from financial statements.  Do you need to go to that level?

MR LIM:   No, I do not.

HIS HONOUR:   So, paragraph 4 could be cut back.

MR LIM:   It could.  We do want the three forms of financial statement:  the profit and loss, the balance sheets, and the cash flow.

HIS HONOUR:   Yes.

MR LIM:   But I can live without the management accounts.

HIS HONOUR:   And paragraph 5, you say, is in the alternative to 4.

MR LIM:   Yes.  Expressly, if the financial statements do not exist for any of those years, then we seek one or more documents that gives us the information that would be in financial statements if they did exist.

HIS HONOUR:   I see.

MR LIM:   Your Honour, category 6 is slightly different.  It may be information that is captured by paragraph 4, but it may not be, and so we do seek financial records that would disclose the donations in fact made to the party and, while on this version of our case, the nominated entity’s capacity to make donations is sufficient.  The fact of actual donations, we apprehended, might also be relevant to the Court’s impression of the practical effect of the law.

HIS HONOUR:   Yes.  Mr Lim, all of this is to feed into a – what, an amended pleading, initially, is it, and then a special case?  Where is it all heading?

MR LIM:   We apprehend, into the special case.  The pleadings could be amended but, in my submission, it is not necessary to do so.  The existing statement of claim alleges, at paragraphs 33 to 35, that each nominated entity has:

assets and funds available that greatly exceed the funds that could realistically be lawfully raised by any entity through –

capped donations.  That is the fact that we set to prove.  The State has not admitted that fact.  We would incorporate the detail that flows from the subpoena returns into the special case to make good that fact, but we do not think we need to amend the pleading – we do not apprehend that we will need to amend the pleading.

HIS HONOUR:   Is this special case in the process of being prepared in consultation with the defendant, or?

MR LIM:   Yes.  So, in compliance with the orders your Honour made on the last occasion, we provided a draft of the special case to Victoria on 23 May, and we received comments from Victoria overnight, which we are considering.  There are certain placeholders that are subject to what might be returned on any subpoenas for which leave is given, but the special case is advanced as between the parties.  We apprehend, or we would propose, that if leave to issue the subpoenas were granted, and given the relatively narrow scope of them, the ease with which returns should be able to be provided, they were returnable in mid‑July.  My estimate is that the parties could then finalise an agreed special case by early August, and we would file our submissions in August as well.  Application of the Part 44 timetable thereafter would have the plaintiffs’ reply and the joint bundle of authorities being filed in mid‑October, so the matter could be ready for hearing in November or December, if the Court could accommodate it.

HIS HONOUR:   Thank you, Mr Lim.  I should hear from Mr Wood.

MR WOOD:   Your Honour, the State’s position is that it does not oppose the applications made by the plaintiffs, including in the minor amendment that Mr Lim foreshadowed just now.  I can explain more why some of this information is not in the State’s possession, if that would assist your Honour, but otherwise, those are the things . . . . . this morning, including about the creation of the special case or the anticipated timing.  The only potential quirk is if something unexpected arose from the material returned on the subpoenas, but at the moment that does not seem a likely prospect.

HIS HONOUR:   All right.  Thank you, Mr Wood.  Mr Lim, what date do you suggest be the return date?

MR LIM:   At 18 July, if your Honour pleases.  May I also note, in reviewing these, I noticed that the addressee of each subpoena does not include the magic words “by its proper officer”.  If we need to supply a revised version of that to the Registry, we can do that immediately.

HIS HONOUR:   Well, subject to the deletion of the words “and any management accounts” in paragraph 4, I grant leave to the plaintiffs to issue the three proposed subpoenas, substantially in the form that have been filed to date, making the return date – so, it was 18 July, Mr Lim?

MR LIM:   Yes, your Honour.

HIS HONOUR:   Making the return date 18 July.  Is there anything further, Mr Lim?

MR LIM:   No.  Thank you, your Honour.

HIS HONOUR:   Mr Wood?

MR WOOD:   Your Honour, I think the current orders have the parties filing a draft agreed special case by 4 July.

HIS HONOUR:   That should be amended?

MR WOOD:   I think it should either be amended or perhaps vacated.

HIS HONOUR:   Vacate – yes.

MR WOOD:   I suggest perhaps vacated, and then the parties could liaise after the return of the subpoenas and propose a date for it to be filed.

HIS HONOUR:   Yes.  Well, I vacate that existing order.  Thank you, Mr Wood.

MR WOOD:   Thank you, your Honour.

HIS HONOUR:   That is it.  The Court will adjourn.

AT 9.41 AM THE MATTER WAS ADJOURNED