Federal Court of Australia

Hamilton v Meta Platforms, Inc. [2023] FCA 1148

ORDERS

THE COURT ORDERS THAT:

1.    This proceeding (NSD899/2020) is permanently stayed.

2.    For the avoidance of doubt, the permanent stay of this proceeding does not prevent the claims the subject of this proceeding from being brought by the applicant or group members in another proceeding.

3.    The applicant pay the respondents’ costs of the interlocutory applications as agreed, or failing agreement as assessed by a Registrar of the Court on a lump sum basis.

4.    The parties be granted leave to apply to vary order 3 by filing and serving submissions (of no more than 3 pages) in support of any variation they contend for within 5 business days of these orders.

5.    In the event that a party applies to vary order 3 by filing and serving submissions under order 4:

(a)    The opposing party or parties is/are to file and serve any submissions in response (of no more than 3 pages) within 5 business days of service on them of the submissions under order 4;

(b)    The party or parties served with submissions under paragraph (a) is/are to file and serve any submissions in reply (of no more than 2 pages) within 3 business days of service on them of the first mentioned submissions.

6.    The submissions referred to in Orders 4 and 5 should be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures.

7.    The applicant is to give notice to Group Members and SUFB Token Holders of the orders which I have made in determining the present applications and provide a link to the reasons for judgment when published on the Court’s website.

8.    The form in, and means by, which the notice in Order 7 is to be given are to be agreed by the parties and a proposed short minute of order in relation thereto is to be provided to my Associate within 5 business days of these orders, with any areas of disagreement to be indicated in mark up.

.Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHEESEMAN J

INTRODUCTION

1    These reasons concern interlocutory applications brought by the respondents, Meta Platforms, Inc. formerly Facebook, Inc. and Google LLC, as first and second respondents respectively, seeking identical relief, namely, that the substantive proceeding be permanently stayed, or alternatively, an order that the proceeding not continue as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth).

2    The substantive proceeding is a representative proceeding commenced by Mr Hamilton, as representative applicant, under Part IVA of the Act against Meta and Google. Mr Hamilton refers to the proceeding, and promotes the proceeding, using the description “the Crypto Ad Ban Case”. Mr Hamilton is self-represented. He qualified as a lawyer but is not the solicitor on the record in this proceeding. There is no solicitor on the applicant’s side of the record.

3    Mr Hamilton was successful in obtaining leave to serve out of the jurisdiction following an ex parte application: Hamilton v Meta Platforms, Inc (Service out of Jurisdiction) [2022] FCA 681 (Hamilton (Service Out)). Familiarity with the reasons in the Hamilton (Service Out) decision is assumed for the purpose of these reasons.

4    In obtaining leave to serve out of the jurisdiction, Mr Hamilton was required under the then requirements of r 10.43(4)(c) of the Federal Court Rules 2011 (Cth) to establish that he has a prima facie case in relation to at least one cause of action or remedy claimed in the proceedings. Although Mr Hamilton brought the application in respect of representative proceedings, he did not need to establish a prima facie case in respect of all potential categories of group members. For the purpose of that application, it was sufficient for Mr Hamilton to establish that he, as a group member, had a prima facie case in respect of one of his pleaded claims. That requirement is “not particularly onerous”: Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 at [23] (Gordon J, when her Honour then was on this Court). A prima facie case is made out where, upon a broad examination rather than an intense scrutiny of the material before the Court, inferences are shown to be open which, if translated into findings of fact, would support the relief claimed: Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 6) [2010] FCA 704; 270 ALR 504, 507 at [8] (Bennett J) and the cases cited therein. A detailed analysis of the evidence is not called for: NPP Australia Limited v Ripple Labs, Inc [2020] FCA 1237 at [27] (Burley J). Mr Hamilton succeeded on the ex parte application in establishing that findings of fact were available and inferences were open to be drawn that established a prima facie case for the relief claimed in respect of one of the claims pleaded. The decision did not require or extend to a substantive assessment of the merits of the claims pleaded.

5    The claims against Meta and Google can be traced to the period between 29 January 2018 and about July 2018 during which it is alleged that Facebook and Google each introduced measures which prohibited, or substantially restricted, advertising related to cryptocurrency and, more broadly, the cryptocurrency industry. Mr Hamilton alleges that the restriction on advertising applied not only on the Facebook and Google platforms but also affected advertising on other platforms that sourced their advertising content from Facebook and/or Google. The restrictions on advertising about which Mr Hamilton complains were progressively modified by each of Facebook and Google, with the most recent modifications alleged to have taken effect in May 2019 (Facebook) and sometime between October 2018 and September 2019 (Google). Mr Hamilton seeks relief in respect of alleged contraventions of the Competition and Consumer Act 2010 (Cth) (the CCA) (including in respect of restrictive trade practices, misleading and deceptive conduct and accessorial liability) and tortious conduct (including deceit, malicious falsehood and conspiracy): Hamilton (Service Out) at [3]. Mr Hamilton alleges that the respondents’ conduct substantially reduced the advertising opportunities available to the cryptocurrency industry, including those persons engaged in the supply of cryptocurrency related goods and services.

6    The proceeding is funded by JPB Liberty Pty Ltd (or the Funder). Mr Hamilton is the sole shareholder, one of the two directors and Chief Executive Officer of the Funder. The other director, Maree Carmel Hamilton, is a non-executive director and is Mr Hamilton’s mother. Mr Hamilton says that JPB Liberty has entered into a formal written litigation funding agreement (LFA) with approximately 650 Group Members, defined in the LFA as Funded Class Members. JPB Liberty has a right to partake in the Funded Class Members’ share of any proceeds of the litigation. One of the means by which JPB Liberty is funding the litigation is by issuing crypto tokens known as “Sue Facebook Tokens” (SUFB Tokens). SUFB Tokens are issued as a reward for financial and non-financial contributions to the litigation. The holders of SUFB Tokens have a right to participate in any proceeds of the proceeding. The participation rights of both JPB Liberty and SUFB Token Holders are defined in the LFA.

7    Mr Hamilton brings the proceeding on his own behalf and on behalf of Group Members as defined in the further amended originating application. The definition of Group Members is very broad – it includes persons who “owned, controlled, or had legal entitlements whose value was based on the price of” specified cryptocurrencies during the period from 29 January 2018 to the present (the relevant period). The list of specified cryptocurrencies numbers 33 in total and includes Bitcoin, Ethereum, and ZCash. The definition of Group Members extends to seven other categories of person having a connection of some sort with the supply of goods or services relating to cryptocurrency. The class is not limited to persons who have signed funding agreements with JPB Liberty. Group Members are defined as an “open class” – persons who did not know about the proceeding or consent to becoming a Group Member when the proceeding was commenced will be included in the class: Clurname Pty Ltd v Commonwealth Bank of Australia [No 1] [2015] FCA 153 at [4] (Foster J).

8    For purposes of the present applications, it is not necessary to recount the detail of each category captured by the Group Members definition other than to observe that the definition’s reach is extensive – it will cover a large and geographically diverse group of persons. For example, the subcategory of Group Members who owned or controlled one or more of the 33 specified cryptocurrencies is not geographically limited and will include any person in the world that owned any of the specified currencies in the relevant period. The Group Members definition also includes “Persons who provided specialised cryptocurrency related professional advice” and “Persons who published media websites or video channels on websites such as YouTube or organised conferences or events specialising in cryptocurrency related content during the Relevant Period”. In bringing this proceeding as representative applicant, Mr Hamilton submits that he is acting on behalf of Group Members numbering in the “millions in Australia and tens of millions spread all over the world”. Many, if not the vast majority, of the Group Members will have no knowledge of the proceeding.

9    In applying for a permanent stay, the respondents contend that to permit the proceeding to continue in its current form would bring the administration of justice into disrepute for two principal reasons. First, Mr Hamilton is in an intractable position of conflict vis-à-vis Group Members such that continuation of the proceeding with him as representative applicant, sole shareholder and Chief Executive Officer and director of the Funder, and without the benefit of legal representation, will bring the administration of justice into disrepute. Secondly, the manner in which Mr Hamilton’s interest in the proceeding has been structured involves him in, in substance, obtaining prohibited contingency fees through the issuance of SUFB Tokens to him by JPB Liberty as a reward for his non-financial contributions to the litigation.

10    It bears emphasis at the outset that the respondents acknowledge that if a permanent stay is granted it would not preclude the underlying claims against the respondents being pursued in other proceedings, including a different representative proceeding, if such proceedings were otherwise properly constituted and were conducted in a way that did not bring the administration of justice into disrepute. When a class action is commenced, the running of any limitation period is suspended and does not begin to run again until either the group member opts out of the proceedings or the proceedings are finally determined: s 33ZE of the Act.

11    As an alternative form of relief, the respondents seek a de-classing order under s 33N of the Act on the basis that Mr Hamilton is not capable of adequately protecting Group Members’ interests. The respondents submit that there are two reasons why Mr Hamilton cannot adequately protect Group Members’ interests. First, he is prevented from doing so because of his pervasive conflicts of interest. Secondly, because he is not equipped to do so having regard to the way in which the claims advanced in this proceeding are framed, coupled with the complexities inherent in representative proceedings generally, and the specific complexity of the present proceeding. Mr Hamilton resists the de-classing order, contending that s 33N does not provide a general power to de-class due to alleged conflicts of interests arising from litigation funding arrangements. He further submits that it would not otherwise be in the interests of justice to de-class the proceeding.

CONCLUSION IN SUMMARY FORM

12    For the reasons which follow, I am satisfied that this proceeding should be permanently stayed for the first reason advanced by the respondents. To permit the proceeding to continue in the current form would bring the administration of justice into disrepute. Although Mr Hamilton sought to advance a number of ways in which the proceeding may be managed so as to mitigate the issues identified by the respondents, I am not satisfied that the conflicts inherent in Mr Hamilton’s multi-faceted interests in the proceeding are capable of being appropriately managed, including by the means he has put forward in his submissions on this application.

13    Having reached this conclusion, it is not necessary to consider the respondents’ applications in the alternative for a de-classing order pursuant to s 33N of the Act.

EVIDENCE

14    In support of its application, Meta relies on two affidavits of Mark Anthony Wilks, solicitor for Meta, affirmed on 8 November 2022 and 6 December 2022. Meta also tendered two exhibits to those affidavits. Google relies on an affidavit of Leon Chung, solicitor for Google, affirmed on 12 October 2022, and one exhibit thereto. Google and Meta’s evidence was admitted without objection. Evidence in one application is evidence in the other.

15    Mr Hamilton relies on two affidavits. First, his own affidavit sworn 20 November 2022 and an exhibit thereto. Secondly, an affidavit of David Hans Lange sworn 20 November 2022 and the annexure thereto. Mr Hamilton also relies on an amended conflicts of interest policy dated 3 February 2023 for JPB Liberty and tendered on 3 February 2023. Mr Hamilton’s evidence was admitted without objection. Mr Hamilton’s evidence is an amalgam of evidence and submission and I will treat it as such. In the course of the hearing, Mr Hamilton also read in the whole of tab 20 of the court book, being the Applicant’s Concise Court Book for service application dated 14 July 2021, which included his affidavits sworn on 27 August 2020, 6 September 2020, 10 December 2020, 1 March 2021 and 12 July 2021. Google objected to various portions of the material seeking limitations for those portions to be treated as submission. Mr Hamilton agreed to those limitations and I will treat those portions as submissions.

FACTUAL BACKGROUND

Overview of Mr Hamilton’s involvement and interest in the proceeding

16    At the heart of this application is the respondents’ attack on Mr Hamilton’s pervasive conflicts arising from his numerous duties and interests. To elucidate the nature and extent of the conflicts it is useful to begin by enumerating the various roles Mr Hamilton has in, or in connection with, the proceeding.

17    First, Mr Hamilton is the representative applicant, he is referred to as the Representative in the LFA. He resides in Israel. It is convenient to extract the broad description of Mr Hamilton’s claims from Hamilton (Service Out) at [22]:

22    Mr Hamilton’s overarching contention is that the Ad Ban Provisions caused a substantial reduction in advertising opportunities for cryptocurrency-related goods and services which resulted in a substantial reduction in demand for those goods and services. Mr Hamilton contends that the operation of the Ad Ban Provisions has resulted in the loss of a “substantial economic benefit” from the cryptocurrency industry, which has in turn caused group members to suffer loss or damage, of which his personal claim is an example. Broadly, and without being exhaustive, Mr Hamilton claims he suffered loss occasioned by: (1) a reduction in the profitability of cryptocurrency mining, which was the primary business of Green Freedom Limited (Israel), a company wholly owned by Mr Hamilton; (2) diminution in the value of his investment in STEEM, a cryptocurrency, which Mr Hamilton contends experienced severe decline following the introduction of the Ad Ban Provisions; (3) loss of the business opportunity to operate a successful cryptocurrency consulting practice specialising in investment in the cryptocurrency industry which Mr Hamilton says he established with his wife under the name, Grant Hamilton Crypto Advisory, before introduction of the Ad Ban Provisions; and (4) a reduction in the value of his unsold cryptocurrency holdings.

18    Mr Hamilton frames his claim as a claim for damages, including aggravated damages and exemplary damages, under s 82(1) of the CCA and s 22 of the Act respectively, declaratory relief under s 163A of the CCA and/or s 21 of the Act, a permanent injunction under s 80 of the CCA requiring the respondents to cease the alleged contravening conduct and other relief under s 87(1) of the CCA including a public apology and the provision of certain services to group members at no cost, and without restriction, for a period of time equal to the period of the alleged contravening conduct. An asserted source of loss included in the [FASOC] is a claim for “loss of amenity for users of blockchain based social media platforms”. Mr Hamilton submits that his cryptocurrency holdings were relatively small (under A$10,000) compared to other Funded Class Member who had holdings in the US$1 to 10 million range in the early 2018 period for which the majority of market based causation damages are claimed. This submission is advanced by Mr Hamilton in the context of seeking to justify his various interest in any litigation proceeding derived from the funding arrangements in place.

19    Secondly, Mr Hamilton appears as a litigant in person, that is, a self-represented litigant. Although Mr Hamilton was admitted as a solicitor of the Supreme Court of New South Wales in 1996 and entered the register of legal practitioners of the High Court of Australia in 2005, Mr Hamilton is not the solicitor on the record in this proceeding. He describes himself as a litigant in person who happens to have legal experience and is adamant that he is not acting as a solicitor or barrister for anyone in this proceeding. As mentioned, there is no solicitor on the record. Despite the fact that the LFA and the JPB Liberty Conflicts of Interest Policy (CMP) both refer to the role that “Lawyers” are intended to play in relation to the arrangements between Mr Hamilton, JPB Liberty, and others interested in the litigation on the applicant’s side of the record, no lawyers are presently retained to perform the role(s) allocated to the “Lawyers” under the LFA and CMP. Mr Hamilton is controlling and directing the way in which the proceeding is conducted on the applicant’s side of the record.

20    Thirdly, as mentioned, Mr Hamilton is the sole shareholder of the Funder and as such has a financial interest in the Funder and through the Funder in the Funder’s interest in any litigation proceeds.

21    Fourthly, in addition to being the sole shareholder of the Funder, Mr Hamilton is one of two directors of the Funder. He is also the Funder’s Chief Executive Officer. As mentioned, the other director is a non-executive director and is his mother. The Funder is under Mr Hamilton’s control.

22    Fifthly, Mr Hamilton controls JPB Liberty’s Hive accounts “@jpbliberty” and “@jpbliberty1”. Mr Hamilton describes Hive as a decentralised, blockchain based content sharing platform, akin to a social media network. The Hive platform is the one of the main ways in which Mr Hamilton communicates with Group Members and others about this proceeding, amongst other things. Mr Hamilton thus controls communication in relation to the proceeding with Group Members through his control of JPB Liberty and his operation of the relevant Hive accounts.

23    Sixthly, Mr Hamilton is the “Representative” under the LFA. “Representative” is defined as a Funded Class Member who is a representative applicant or plaintiff in the Class Action. In addition to the control he has over the conduct of the proceeding by virtue of his status as representative applicant, as the Representative under the LFA, Mr Hamilton is given express authority to control the conduct and direction of the proceeding in a number of ways including authority to determine which claims will be pursued in the proceeding at any stage.

24    As the Representative, he is responsible in consultation with JPB Liberty, the Lawyers and Counsel, to determine whether an application for a Common Fund Order will be made: cl 4.1, LFA. As mentioned, this proceeding is brought on behalf of Group Members who are part of an “open class” as defined in the further amended originating application dated 26 November 2021. Clause 4.3.1 of the LFA provides a mechanism for automatically amending the LFA to avoid conflict with any Common Fund Order made. Common Fund Order is defined to mean where the Class Action is pursued on an “open class” basis, and in the course of those proceedings the Court makes orders requiring all Class Members (whether Funded Class Members or not) to pay to JPB Liberty a percentage of a common fund comprising any amounts they may receive in any settlement or judgment in the proceeding (including any Litigation Proceeds) or any other amount, as approved by the Court.

25    Seventhly, Mr Hamilton is the sole arbiter in relation to the issue of SUFB Tokens. The number of SUFB Tokens to which a person is entitled by reason of their financial or non-financial contribution to the litigation is at Mr Hamilton’s “sole discretion as sole shareholder of JPB Liberty”. In response to questions posed by the respondents, Mr Hamilton confirmed that where the relevant contribution is financial, SUFB Tokens are “issued or sold at a price determined by [Mr Hamilton] reflecting the stage of preparation for proceedings and progress of proceedings.” Mr Hamilton has further confirmed that where the relevant contribution is not financial, SUFB Tokens “issued or transferred for non-financial contributions were assessed by [Mr Hamilton] on a discretionary basis according to [his] determination of value of each contribution and sometimes with input from the recipient.” Mr Hamilton is frank in acknowledging that to date, his decisions to issue SUFB Tokens for financial or non-financial contributions have been “made on a purely discretionary basis, without documenting the basis or the policies and procedures”. He says that as sole shareholder and director of JPB Liberty he made these decisions “on a discretionary basis to advance the proceedings.” Mr Hamilton’s control over the terms on which the proceeding is funded is both through his control over JPB Liberty and his oversight of the issuance of SUFB Tokens.

26    Relatedly, Mr Hamilton, or persons associated with him, hold a substantial number of the SUFB Tokens currently on issue. In correspondence Mr Hamilton asserts that as at 23 October 2022, approximately 48% of the SUFB Tokens on issue were held by him or persons associated with him. There was some debate about the accuracy of this figure. It was common ground that Mr Hamilton, or persons associated with him, hold a substantial number of the SUFB Tokens currently on issue. I have approached my consideration of the present applications on that basis. As a consequence of his control over the issuance of SUFB Tokens, Mr Hamilton has caused JPB Liberty to issue a substantial number of SUFB Tokens to himself for what he describes as the financial and non-financial contributions he has made to the litigation.

27    Based on the above analysis, it is plain that Mr Hamilton, has a financial interest in the litigation that significantly exceeds his own claim for relief in the proceeding. It is also plain that Mr Hamilton is able to exert control over the way in which the claims pursued in the proceeding are framed and resourced, and whether individual categories of claims are pursued or continued in the proceeding. Finally, Mr Hamilton also has significant control over the ultimate distribution of a substantial proportion of any litigation proceeds because he has complete control over the issuance of SUFB Tokens and the terms on which the tokens are issued for financial and non-financial contributions.

The funding arrangements

28    It is next necessary to address the funding arrangements in more detail.

Litigation Proceeds

29    The LFA defines “Litigation Proceeds” as:

…any money, benefits, services and/or, if JPB Liberty so accepts pursuant to clause 7.8, any Specified Property, for which any Claim and/or Proceeding is Settled, or for which Judgment is given, in favour, or otherwise for the benefit (directly or indirectly), of You or an External Controller of You, and includes:

(a)    any interest (including any interest earned on money while held in the Trust Account);

(b)    any costs recovered pursuant to a Costs Order or by agreement;

(c)    any ex gratia payments or any compensation (whether statutory or otherwise) directly or indirectly in relation to the Claims; and

(d)    if a Respondent (or any property, assets or liabilities of any Respondent) is, or comes, under the control of an External Controller, any amounts or property distributed or paid by the External Controller of such Respondent in relation to the Claims or any Settlement or Judgment in respect thereof.

30    Clause 7.8 of the LFA provides:

7.8.    The parties agree that their preference is for the Claims to be resolved for an amount of money and agree that JPB Liberty is, so far as possible, to receive its share of any Litigation Proceeds by way of cash payment out of any monetary component of any Litigation Proceeds. However:

7.8.1.    JPB Liberty may decide, in consultation with You (or, if the Claims are to be Resolved as part of a Class Action, the Representative) and the Lawyers but in JPB Liberty’s sole discretion, to accept that a Litigation Proceeds may consist, in whole or in part, of specified property other than money (Specified Property); and, if so,

7.8.2.    JPB Liberty must notify You (or the Representative, where applicable) and the Lawyers, in writing, of its decision and identify the Specified Property.

31    Pursuant to cl 7.8, JPB Liberty is authorised to determine in its sole discretion whether a settlement may be by way of, or include, a non-monetary component. If a settlement includes a monetary and non-monetary component, JPB Liberty is entitled “so far as possible” to receive its share of the Litigation Proceeds by cash payment out of the monetary component. Clause 7.11 provides that:

7.11    In the event the monetary component of any Litigation Proceeds is insufficient to pay JPB Liberty and the Token Holders their full entitlements under this Agreement despite the Lawyers selling as much of the Specified Property for cash as possible, JPB Liberty and You shall use their best endeavours to agree on the way in which the non-monetary component of the Litigation Proceeds is to be fairly valued and shared between them (and, if applicable, the Lawyers in relation to any Remaining Costs) so as to ensure that JPB Liberty and the Token Holders receive, in total, from the Litigation Proceeds their full entitlements under this Agreement and, once having reached agreement, instruct the Lawyers to give effect to it accordingly. JPB Liberty will pay the Lawyers’ reasonable costs and expenses incurred in assisting the parties under this clause 7.11 as part of the Litigation Costs.

32    The LFA provides that the Litigation Proceeds will be paid into the “Lawyers” (as defined) trust account. Lawyers is defined as (as written):

Lawyers means the firm of Australian solicitors selected by JPB Liberty to either be the solicitor on the record for the Proceedings or to advise and assist the Representative, where the Representative chooses to be self-represented via an director who is an experienced Australian legal practitioner, or any other solicitors appointed in their place in accordance with this Agreement…

33    The statement that “where the Representative chooses to be self-represented via an director who is an experienced Australian legal practitioner” does not make sense. The present circumstances are that Mr Hamilton is “self-represented”. There is no solicitor on the record. There is no suggestion that “Lawyers” have been appointed to advise or assist Mr Hamilton. Mr Hamilton is not “self-represented via an director who is an experienced Australian legal practitioner”. He is each of these things — “self-represented”, a “director” of the Funder and by his own account “an experienced Australian legal practitioner”. To the extent that the clause suggests that there is some independent person Mr Hamilton is operating “via” this is not the case. Mr Hamilton has not engaged legal advisers. In conducting the proceeding, he is not aided, or in receipt of advice or assistance by independent legal representatives with a primary duty to the Court.

34    In Mr Hamilton’s submissions on this application, he did not suggest that as a litigant in person who is also admitted as a legal practitioner that he regarded himself as owing a primary duty to the Court. To be clear he was silent on this issue. He did recognise that legal representatives appearing for the parties in representative proceedings owed what he described as a derivative obligation as officers of the court to protect group members’ interests. He was however clear that he did not regard himself as acting as a legal representative in the proceeding. Even if he does regard himself as an admitted practitioner as owing a primary duty to the Court, he eschews that he is acting as a legal practitioner for the applicant or group members.

35    The LFA provides that, after reimbursement of “Litigation Costs” and GST, any Litigation Proceeds are next to be applied to payment of a “Funding Commission”.

Funding Commission

36    The Funding Commission is comprised of two components.

37    The first component is a commission payable to JPB Liberty of 5% of the Litigation Proceeds (save where the balance of the Litigation Proceeds after the payment of Litigation Costs is insufficient to pay all of the Funding Commission payable under the LFA, in which case the Funding Commission is reduced to 16.667% of the balance). The second component of the Funding Commission is a commission of 25% of the Litigation Proceeds which is payable in aggregate to SUFB Token Holders (save where the balance of the Litigation Proceeds after the payment of Litigation Costs is insufficient to pay all of the Funding Commission payable under the LFA, in which case the Funding Commission is reduced to 83.333% of the balance).

38    The SUFB Tokens are described on JPB Liberty’s website as follows:

Web 3.0 Litigation Funding

In Web 3.0 Litigation Funding, each Class Action is funded by a Crypto Token sale. 25% of damages awarded in the Class Action (after costs) will be paid out to Token holders and 5% to JBP [sic] Liberty. The Tokens will be listed on Crypto exchange(s) providing liquidity for token owners during the lengthy litigation process.

A New Asset Class

JPB Liberty has created a new asset class, enabled by Web 3.0 technology:

•    direct investment in individual high value class actions

•    via a publicly tradable, liquid crypto token

•    providing a share in the proceeds of successful claims

•    with payout in A$, US$ or cryptocurrency at successful case conclusion.

Traditional litigation funding only allows investment on a portfolio basis with conservative case selection via private equity or the few publicly listed litigation funders.

A Tradable Token

The “Sue Facebook” Token (SUFB) is currently listed on the Hive-Engine decentralised exchange. A Hive cryptocurrency account is required to use this exchange so all SUFB token holders are eligible class members under the Crypto Class Action. This will provide investors the ability to trade in and out of the token during the years it may take to bring the case to conclusion.

…

How it Works

The first token for the Crypto Ad Ban Case is the “Sue Facebook” Token (SUFB). It is a Hive Engine token on the Hive blockchain.

These tokens will collectively have the right to 20% - 30% (depending on the case) of the total damages pool of all class members who have signed the Funding Agreement with JPB Liberty. The precise entitlement of each token will depend on the total number of tokens issued (fixed for each case) and the percentage of damages allocated to token holders in the Funding Agreement.

Investors will purchase these tokens from JPB Liberty with cryptocurrencies such as Bitcoin & Ethereum and will receive tokens which sit in their Hive wallet. These cryptocurrency funds will be used by JPB Liberty to fund the running of the class action. JPB Liberty will generally retain a percentage of the tokens itself and the total amount raised will be capped to the needs of the case (generally less than $10 million).

During the case, investors may trade their tokens on crypto exchanges where they are listed. It is expected that the market value of each token will reflect the market’s assessment of the likely payout on the token at the conclusion of the litigation. JPB Liberty will provide updates for class members and token holders on significant developments as the litigation proceeds.

On successful conclusion of the case (Court ordered damages or settlement) investors will be paid out their share of the damages pool according to their token holdings and paid out tokens will be destroyed. The form of payment will likely be A$ or US$, but an investor may request payment in cryptocurrency. Exact details will depend on the terms of settlement and Court orders at the conclusion of the case.

On unsuccessful conclusion of the case (final adverse Court decision or discontinuance of proceedings) any remaining funds from the token sale after payment of all costs, including the other side’s costs, will be returned to token holders on pro rata basis in proportion to their holding…

39    The terms on which SUFB Token Holders are entitled to participate in the “Litigation Proceeds” in the Crypto Ad Ban Case are set out in the LFA as described above. Through these arrangements persons who stand to benefit from the payment of any Funding Commission include those persons who hold SUFB Tokens at the relevant time.

40    At present, Mr Hamilton’s evidence is that a total approaching 3 million SUFB Tokens have been issued. As mentioned, Mr Hamilton is one of the largest holders, if not the largest holder, of SUFB Tokens through his direct and related holdings. According to documents produced by Mr Hamilton, he presently holds about 297,000 SUFB Tokens personally, his family’s superannuation fund owns about a further 20,000 SUFB Tokens, and his family members hold about a further 67,000 SUFB Tokens. The largest holder of SUFB Tokens is JPB Liberty. It appears to own slightly more than about 2 million SUFB Tokens. JPB Liberty holds over two thirds of all the SUFB Tokens on issue.

41    JPB Liberty has resolved that any SUFB Tokens retained by it in its @jpbliberty1 Hive account will be “burnt” prior to any “Resolution” (which is defined in the LFA as the time at which any Litigation Proceeds are received). JPB Liberty has confirmed that resolution in what is described as public internet posts. The LFA and CMP do not refer to JPB Liberty having any obligation to burn any SUFB Tokens retained by it prior to any “Resolution”. Leaving aside the question of whether that resolution (or its publication) creates any binding obligation on JPB Liberty to act consistently with it, the apparent intended effect is that all SUFB Tokens remaining with JPB Liberty at the time of any Resolution will be destroyed, with the result that the total body of SUFB Tokens will be reduced to only those SUFB Tokens issued by JPB Liberty to persons or entities other than JPB Liberty. In that event, the 25% Funding Commission payable to Token Holders would be shared by Token Holders other than JPB Liberty (whose tokens will be “burnt”).

42    Funds raised by initial issuance are to be used to fund the proceeding and any residual issuance funds held by JPB Liberty at the conclusion of the proceeding after payment of all costs are to be returned to Token Holders on a pro rata basis in proportion to their holdings. Prior to any Resolution, JPB Liberty is able to trade in or finance against its holding of SUFB Tokens as an alternative to, or in addition to, issuing SUFB Tokens at Mr Hamilton’s direction in his capacity as the Representative. I was not taken to any part of the arrangements that suggested that when Token Holders, including JPB Liberty, sell SUFB Tokens in secondary trading that they are obliged to apply the proceeds of such sales to funding the present proceeding. On JPB Liberty’s website it is acknowledged that during the case, investors may trade their tokens on crypto exchanges where they are listed and that it is expected that the market value of each token will reflect the market’s assessment of the likely payout on the token at the conclusion of the litigation. In this context, JPB Liberty acknowledges on its website that it will issue “updates for class members and token holders on significant developments as the litigation proceeds”.

43    JPB Liberty has an interest in controlling the timing of new issuance with a view to the price of SUFB Tokens in any secondary trading. In the CMP, (at cl 3.2), it is recognised that because JPB Liberty’s funding model relies upon the sale of a share in the Litigation Proceeds to Token Holders, conflicts of interest involving the Token Holders must be taken into account. It is then asserted that the Token Holders’ interests are generally the same as those of JPB Liberty. Depending on the circumstances, that may or may not be correct — it may be in JPB Liberty’s interests at a particular time for tokens to be trading at a premium, and at other times, for tokens to be trading at a discount. As the major token holder, there is potential for JPB Liberty’s interests in relation to the trading and issuance of SUFB Tokens to diverge and conflict with those of minority holders. Because of the confluence in the position of JPB Liberty as the issuer of SUFB Tokens and Mr Hamilton’s authority as Representative under the LFA to determine the terms of issuance and to whom tokens are issued, Mr Hamilton has at his disposal an ability to take steps to avoid his and his associates holding in SUFB Tokens being diluted. This is a potential source of conflict between Mr Hamilton and minority Token Holders. It has the potential to impact the funding of the proceeding to the extent that the funding is derived from Token issuance and in this way potentially impact Group Members’ interests even though the majority of Group Members are not Token Holders.

44    For present purposes, on the assumption that JPB Liberty’s holdings of SUFB Tokens are to be burnt, Mr Hamilton submits that it is appropriate to disregard JPB Liberty’s Tokens when assessing the likely share of the 25% component of the Funding Commission that will enure to any individual SUFB Token Holder. That ignores the potential for JPB Liberty to profit from offloading its holding of SUFB Tokens in any secondary market at a time when a favourable resolution is looking likely, or has been agreed, but before the obligation to burn its tokens is triggered, namely at the time when any Litigation Proceeds are received.

45    If JPB Liberty’s holding of SUFB Tokens is excluded, the total body of SUFB Tokens presently on issue will reduce to about 813,000. A total of about 297,000 SUFB Tokens are held by Mr Hamilton in his personal capacity, representing approximately 36.5% of the issued SUFB Tokens, of which about 132,000 were issued for financial contributions and about 165,000 were issued for non-financial contributions Mr Hamilton’s superannuation fund holds approximately 2.5% of issued SUFB Tokens. His family holds approximately 8.3% of issued SUFB Tokens. Based on these figures, Mr Hamilton and those associated with him hold approximately 47.3% of SUFB Tokens currently on issue (excluding those held by JPB Liberty). If there was a Resolution within the meaning of the LFA and the spread of SUFB Tokens remained unchanged, Mr Hamilton would be personally entitled to approximately a third of the 25% component of the Funding Commission personally, and over 40% of the 25% component of the Funding Commission would be paid to him, his family and his related entities. Payment of that part of the Funding Commission (pursuant to entitlements under the SUFB Tokens held by Mr Hamilton and interests associated with him) would be in addition to the 5% commission that JPB Liberty is entitled to receive independently of the commission payable to Token Holders. That additional 5% commission would ultimately be to Mr Hamilton’s benefit through his sole ownership of JPB Liberty.

46    In this way, even on the assumption that Mr Hamilton urges, namely that it is appropriate to exclude JPB Liberty’s directly held SUFB Tokens because they will be “burnt” upon Resolution, the returns that Mr Hamilton and JPB Liberty expect to recover as a result of the 5% commission and Mr Hamilton’s share of the 25% commission are significant. In May 2020, JPB Liberty represented in a public internet post that the total claim value for persons who had “signed up” to the action exceeded $1 billion Australian dollars. In Mr Hamilton’s estimation, the value of JPB Liberty’s 5% funding commission may exceed AUD$50 million and the commission payable to Token Holders may exceed AUD$250 million, with Mr Hamilton and those associated with him being entitled to receive approximately 47.3% of that amount, that is approximately $118 million.

Distribution Priorities for Litigation Proceeds

47    Clause 7 addresses the procedure in respect of any receipt of Litigation Proceeds. The clause is framed as an irrevocable instruction. All payments in each priority level are to be made pari passu and pro rata. The first priority is to apply the Litigation Proceeds to the reimbursement of all Litigation Costs, as defined by cl 10.1.1, incurred by JPB Liberty, which includes all of JPB Liberty’s out of pocket costs and expenses in relation to the litigation (plus GST). The second priority is to pay to JPB Liberty an additional amount “on account of GST” being equal to the sum of the GST payable by JPB Liberty in respect of the consideration received by it for any taxable supply made to Funded Class Members under or in connection with the LFA. The third priority is to: (1) pay to JPB Liberty an amount equal to 5% of the Litigation Proceeds; (2) pay into the Token Holders Pool an amount equal to 25% of the Litigation Proceeds; and (3) pay to the Lawyers each Funded Group Member’s share of any Remaining Costs (as defined).

48    Where the balance of the Litigation Proceeds following the payment of the first two priorities, namely Litigation Costs and GST Reimbursement, is less than 30% of the Litigation Proceeds, the balance is to be shared 16.667% to JPL Liberty and 83.333% to the Token Holders. The fourth priority, assuming there is a surplus after the first to third priorities are met, and subject to any equalisation order, is to pay the balance of the Litigation Proceeds to or as directed by the Funded Class Members.

49    Litigation Costs are defined expansively and include the pre-proceedings costs; pre-litigation investigation and litigation management costs; any costs involved in the provision by JPB Liberty of any security for costs; any adverse costs order payable by JPB Liberty in accordance with the terms of the LFA; the costs of quantifying any adverse costs order; the reasonable legal fees and disbursements of the Lawyers; any other costs or expenses which are expressly stated to form part of the “Litigation Costs” payable by JPB Liberty under the terms of the LFA and all of JPB Liberty’s out of pocket costs and expenses paid or incurred in relation to the Litigation, including in relation to any consultants engaged by JPB Liberty and any GST payable thereon. Adverse costs orders are to be paid first from any Litigation Proceeds in the relevant trust account with JPB Liberty to pay any balance outstanding after any payment from trust.

50    As apparent from the reimbursement process outlined above, JPB Liberty has taken on certain exposures in connection with the proceeding including committing to pay: all “Litigation Costs”, JPB Liberty’s costs and expenses associated with managing the litigation, the reasonable legal fees and disbursements of any Lawyers retained by or advising Mr Hamilton, any security for costs ordered to be provided by the applicant; and any adverse costs order made against the applicant. In the context of this last exposure, it is relevant that Mr Hamilton lodged an application for no adverse costs order under s 82(4) of the CCA which is pending, subject to outcome of the present application. He has indicated that if he is successful in obtaining such an order he intends to continue the proceeding, the inference being that if he does not, he will not.

51    Mr Hamilton acknowledges that JPB Liberty aims to make a profit on the proceeding. He submits that his financial interest in the proceeding, directly and through JPB Liberty, is “no different from any other class action where the [representative] applicant and/or funder takes the risk of their own legal costs and adverse costs orders, and group members are not liable for any legal costs”. Mr Hamilton submits that the only conflict of interest arising out of the arrangements in place in respect of this proceeding “is the risk of an applicant accepting a low settlement offer that does not properly reflect the value of the group members’s [sic] claims or otherwise seeking to discontinue or abandon proceedings because a [representative] applicant / funder may determine that risk outweighs potential reward”. He says his own interest in the proceeding is such that the balance between risk and reward is appropriately struck.

Conflict Management Policy

52    The CMP is directed to providing information about JPB Liberty, disclosing potential conflicts of interest and methods to manage such conflicts if they manifest and providing information about dispute and complaint resolution procedures: cl 1.2 CMP.

53    The LFA provides in cl 5.4 that during the term of the LFA, JPB Liberty will:

5.4.1.    comply with the requirements of the Regulations by implementing the Conflicts Management Policy; and

5.4.2.     provide clear and timely disclosure to You of any material breach of the Regulations by JPB Liberty in relation to the subject matter of this Agreement.

54    On the first day of the hearing, Mr Hamilton tendered an updated version of the CMP as at 3 February 2023. The CMP was amended in two respects, each of which are outlined below.

55    The CMP includes the following information:

2.1    JPB Liberty provides litigation management services and possibly financial services for funded litigation schemes involving class actions.

2.2    In providing financial services, JPB Liberty is exempt from the requirements that would otherwise apply under Chapter 7 (Financial Services and Markets) of the Corporations Act 2001 (Cth) (“Corporations Act”) provided JPB Liberty complies with the Regulations and maintains adequate practices for managing any conflicts of interest that may arise in relation to any funded litigation.

2.3    JPB Liberty has this conflicts management policy which stipulates the principles, practice and procedures to be followed by JPB Liberty in relation to identifying and managing any conflicts of interest that may arise in relation to, and as a result of, JPB Liberty’s funding of litigation (“Policy”). This policy is available by request to compliance@jpbliberty.com.

56    The relationship between JPB Liberty and Mr Hamilton is described as follows (cl 2.6 CMP)

2.6    The legally experienced self-represented applicant currently bringing the Crypto Class Action proceedings is Andrew Hamilton who is also the sole shareholder of JPB Liberty Pty Ltd. Andrew Hamilton is bringing proceedings on the basis that that the Court grants him an order under s 82 (4) of the Competition and Consumer Act 2010 (Cth) that he not be liable for any legal costs of the respondents in the proceedings. If this order is not granted, proceedings will be discontinued and may be refiled later on another basis.

57    Clause 3 is a lengthy clause which is headed “Conflicts of Interest”. The following potential conflicts are identified:

(1)    A divergence of interest between JPB Liberty, individual Group Members and “the lawyers” in relation to the funded litigation: cl 3.1, CMP.

(2)    A divergence of interest between Mr Hamilton as representative applicant, JPB Liberty and individual Group Members: cl 3.1, CMP.

(3)    A divergence of interest between Token Holders and other stakeholders on the applicant’s side of the record: cl 3.2, CMP.

58    A basic illustration of the potential conflicts of interests is provided in cl 3.3, CMP:

3.3    ASIC considers that a divergence of interests may arise because:

3.3.1.     JPB Liberty wishes to keep the legal and administrative costs of the funded litigation low to maximise its return;

3.3.2.    the lawyers have an interest in maximising their fees; and

3.3.3.     you have an interest in minimising the returns of both JPB Liberty and the lawyers.

59    A representation qualifying the likelihood of such conflicts manifesting is made in cl 3.4, CMP:

3.4    In many instances your interests, our interests, the applicant’s interests and those of the Token Holders will be aligned. This is because the applicant, JPB Liberty and the Token Holders do not receive any payment unless you recover damages or a settlement and our & the Token Holders’ return is normally a percentage of any Litigation Proceeds. It is not in our interests for your claim to be resolved for an amount that does not reflect a reasonable settlement or to be pursued in a way which does not maximise the chances of successfully resolving it.

60    A statement acknowledging that even so, a conflict may still arise is included in cl 3.5, CMP:

3.5    Nevertheless, in some cases a conflict may arise. We have set out below a description of the main circumstances in which conflicts may occur and the way in which we deal with them. If we identify a conflict which arises during the course of your funded litigation which has not been disclosed to you, we will bring it to your attention.

61    The conflicts arising as a result of the “conflicting loyalties” the lawyers owe to JPB Liberty and Group Members are explained as follows (as written):

3.6.1.     the lawyers are appointed by JPB Liberty;

3.6.2.     the lawyers have a retainer agreement with you and you are their client;

3.6.3.     JPB Liberty is paying the lawyers’ fees and expenses;

3.6.4.     JPB Liberty is providing day-to-day instructions to the lawyers;

3.6.5.     the lawyers may have a pre-existing relationship with JPB Liberty or with you or another client in the litigation; or

3.6.6.     the lawyers may see JPB Liberty as a future source of work.

62    Immediately after this explanation of potential conflicts arising from the lawyers’ involvement, the CMP then moves to making representations about the absence of conflicts of interest in the period during which Mr Hamilton is acting as a litigant in person. The CMP represents that the absence of legal representation at the liability phase of the proceeding is a positive attribute of the arrangement and that Mr Hamilton conducting the proceeding as a self-represented applicant reduces the risk of conflicts manifesting. The relevant clauses of the CMP are cll 3.7 to 3.8. Clause 3.8 was amended during the hearing. As amended to clauses are as follows:

3.7     While the proceedings are conducted by Andrew Hamilton as self represented applicant there are no conflicts of interest between the applicant and JPB Liberty because their interests are the same. There are also no conflicts of interest involving the lawyers and their fees, because there are presently no lawyers.

3.8    In these circumstances, the only potential area of conflict of interest is between those of Andrew Hamilton/ JPB Liberty and the class members. Andrew Hamilton as applicant, owes a fiduciary duty to the class members and any settlement must be approved by the Court. Andrew Hamilton’s remuneration for his time and skills commitment (via shareholding in JPB Liberty and being a Token Holder) is dependent upon success in the proceedings, the same as the class members.

(strikethrough added to show amendment)

63    The amendment to clause 3.8 was limited to striking out the reference to “fiduciary” in the description of the duty owed by Mr Hamilton to Group Members. The amendment of cl 3.8 reflects the fact that on this application Mr Hamilton contends that as representative applicant he does not owe a fiduciary duty to Group Members, whereas before the amendment, contrary to Mr Hamilton’s argument on this application, the CMP expressly acknowledged not only that a duty was owed, but that the duty was fiduciary in character.

64    In the CMP it is further represented that there is no potential for conflict between the interests of Mr Hamilton and sub-groups of Group Members arising at the liability phase of the proceeding because “the potential liability of the respondents arises from broad circumstances affecting all class members, not the specific circumstances of a particular class member or sub-group of class members”: cl 3.9, CMP. On this basis it is said that “conflicts between [Mr Hamilton] and the class members over which claims to pursue do not arise at the liability stage”: cl 3.9, CMP. It is then acknowledged that such conflicts may arise at or during any damages phase in which case “[s]eparate lawyers for each sub-group may be appointed at that time”: cl 3.9, CMP. In cl 3.10, CMP it is then represented that:

3.10     JPB Liberty plans to appoint lawyers (and cease Andrew Hamilton’s self representation) prior to the assessment of damages, in which case the potential conflicts in 3.6 above may arise, but to a lesser extent because the class members will not have had to pay for the costs of Andrew Hamilton’s self representation and where s 82 (4) order is made and liability of the respondents is established, the respondents will have to pay most of the costs of the lawyers.

65    It is acknowledged that the interests of “JPB Liberty/Andrew Hamilton” and Group Members may differ in relation to issues such as litigation strategy; decisions as to which claims should be pursued; and how funding is to be applied: cl 3.11, CMP.

66    The balance of cl 3, which is lengthy comprising cl 3.12 to 3.35, sets out how the potential conflicts are to be managed in the LFA, the CMP and via notices to Group Members. For the purpose of this application the following clauses are relevant (as written):

3.13     JPB Liberty may want your claim to settle and you may not, or vice versa. This may happen because:

3.13.1.     JPB Liberty and you have different views about the prospects of success of your claim;

3.13.2.    JPB Liberty may be financially exposed if your claim is lost (because JPB Liberty has paid the legal costs (which are minimal while the applicant is self represented) and has agreed to pay any adverse costs order (which will not apply if a s 82 (4) order is not granted)) but you are not so exposed;

3.13.3. JPB Liberty wants to make a return on the money it has invested in the litigation;

3.13.4.     you may have other motives for settling your claim that are non-monetary, such as preserving a relationship with the defendant;

3.13.5.     you may consider the return to you (after paying JPB Liberty’s fee and the legal costs) to be inadequate; or

3.13.6.     the fee provisions in the LFA may provide for a higher return to JPB Liberty if the litigation resolves at a later point in time.

3.14.     These potential conflicts are relevantly addressed in this Policy and the LFA which provides:

3.14.1.     for the independent and conclusive resolution of any disputes in relation to settlement by referring the dispute to the most senior counsel (barrister) retained in the litigation or to advise the self represented applicant to decide whether the proposed settlement is fair and reasonable or not; and

3.14.2.     in the case of a funded class action where proceedings have not yet started, that a settlement cannot occur unless at least 50% of funded claimants by value who are affected by the settlement vote in favour of it and counsel gives an opinion that the settlement is fair and reasonable in all of the circumstances.

3.15.     In addition, in funded class actions where proceedings have commenced, settlement cannot occur without the Court’s approval.

3.16.     Because the LFA requires any Litigation Proceeds to be paid into a lawyer’s trust account, and lawyers to sign settlement documents, JPB Liberty will ensure that lawyers are appointed to advise the applicant on any non-derisory settlement offer received by the applicant and, if the decision is made to send a settlement offer for Court approval, to appear in relation to that aspect of proceedings.

3.17.     Moreover, unless prevented by confidentiality obligations (which will not be voluntarily agreed to by JPB Liberty) all settlement offers will be published by the @jpbliberty account on the Hive blockchain and notified to Other Funded Persons made to the applicant or proposed to be made by the applicant by their preferred contact method. Where at least 30 Other Funded Persons indicate they want external legal advice on whether the settlement offer should be be accepted, JPB Liberty will appoint lawyers to advise the applicant on this.

3.18.    The Court will be assessing potential and actual conflicts of interest at a very early stage of proceedings and the applicant and/or JPB Liberty may make undertakings to the Court or put in place additional procedures to manage any actual or potential conflicts of interest that are identified.

3.19.     The lawyers (which will be appointed prior to any settlement) are authorised by the LFA to sign any document and take any step on your behalf that is necessary to give effect to a settlement which is reached in accordance with the LFA (and approved by the Court, if applicable).

67    Clause 3.17 was amended in the version of the CMP dated 3 February 2023. The amendment is illustrated by the following marked up version of the clause:

3.17.     Moreover, unless prevented by confidentiality obligations (which will not be agreed by the applicant or voluntarily agreed to by JPB Liberty) all settlement offers* made to the applicant or proposed to be made by the applicant will be published by the @jpbliberty account on the Hive blockchain and notified to Other Funded Persons made to the applicant or proposed to be made by the applicant by their preferred contact method. Where at least 30 Other Funded Persons indicate they want external legal advice on whether the settlement offer should be made or be accepted, JPB Liberty will appoint lawyers to advise the applicant on this.

68    Clause 3.20 of the CMP identifies that a conflict may arise where JPB Liberty does not want to continue to fund a Group Member’s claim and the Group Member seeks to continue the funding in respect of their claim, or conversely a Group Member may want to terminate funding when JPB Liberty does not. Clause 3.21 purports to address this potential conflict as follows:

3.21.1.     the LFA specifies the rights which JPB Liberty and you have to terminate the LFA and the consequences of any of those rights being exercised;

3.21.2.     the LFA provides dispute resolution procedures in the event a dispute arises between JPB Liberty and you; and

3.21.3.     the LFA may include the cost of any appeals as part of the funding or may state that JPB Liberty is not obliged to fund any appeal unless JPB Liberty decides, in its absolute discretion, to do so.

However, cl 6.9 of the LFA provides that JPB Liberty has absolute discretion as to whether to cease funding any claim on 14 days’ written notice, and cl 15.1 of the LFA provides that JPB Liberty may terminate the LFA entirely with 14 days’ written notice.

69    The LFA provides two dispute resolution mechanisms concerning conflicts of interests and settlement decisions at cll 11.3 and 11.6 respectively.

70    Clause 11.3 provides that where the Lawyers believe that they may be in a position of conflict, except in relation to Settlement, with respect to obligations owed to JPB Liberty and the group member the Lawyers may seek and prefer the advice of the group member. The CMP envisages there being two stages to the class action: (1) determination of the respondents’ liability; and (2) assessment of damages. It is notable however that JPB Liberty does not intend to appoint lawyers (and cease Mr Hamilton’s self-representation) prior to the assessment of damages: cll 3.9 and 3.10. Thus, for the duration of which Mr Hamilton remains self-represented, the protective effect of cl 11.3 is rendered nugatory. This position is made all the more stark by Mr Hamilton’s submission that he considers the primary obligation on the representative applicant is to pursue their own claim and that the group members’ interests are secondary.

71    Similarly, the CMP at cl 3.12.3 notes that the LFA states that lawyers may enter into retainer agreements with the group members directly. Clause 11.2 of the LFA provides that the group member may override any instruction by JPB Liberty by giving their own instructions to the Lawyers.

72    Clause 11.6 of the LFA provides that where there is a dispute between JPB Liberty and the Representative, as to whether or the terms on which the class action should be settled it is to be resolved by seeking advice of counsel. The same dispute resolution mechanism applies in respect of settlement of claims not yet the subject of proceedings with the additional requirement that more than 50% of Funded Class members whose claims are the subject of the proposed settlement vote in favour of it: cl 11.11. There are two points of note:

(1)    Clause 11.6 requires a dispute between JPB Liberty, the funder and the Representative, who notionally represents the group members interests. The protective power of clause 11.6 is much diminished where the clause requires as a trigger a dispute as between Mr Hamilton in his capacity as a Representative and JPB Liberty of which Mr Hamilton is the executive director and the sole shareholder.

(2)    If counsel’s opinion is that the settlement is fair and reasonable then the group member and JPB Liberty agree that the lawyers are instructed to do all things necessary to settle the class action: cl 11.8. If counsel’s advice is otherwise however, there is not corresponding clause requiring settlement not to proceed.

Additional undertakings offered by Mr Hamilton

73    During the hearing, Mr Hamilton sought to supplement the arrangements in respect of conflict management in a number of ways. First, Mr Hamilton proffered a series of undertakings:

Firstly, … that JPB Liberty will not issue any further SFUB tokens to myself, the applicant, for non-financial contributions without court approval, as I noted yesterday none have been issued since the start of the proceedings, and that would continue to be the case.

Secondly, I offer to amend the litigation funding agreement conflicts of dispute resolution provisions and the conflicts policy as directed by the court to better protect group members from time to time, as and when required. I note that there is a provision that allows the litigation funding agreement to be amended unilaterally on 14 days’ notice… that provision is provision 17.4.3 of the litigation funding agreement.

…

The third offered undertaking, … is to seek court approval for any issues or sales by JPB Liberty of more than $180,000 tokens. That’s 1 per cent of total, either singularly or in any 365 day period, and taking into account the concerns that seem to be expressed by the respondents that I might go to the court for every one of 18 million tokens, … I would limit that, that I wouldn’t seek that approval more than twice in any 365 day period. That would limit any … impact on the court’s time.

74    Upon being asked how it would be appropriate for the docket judge allocated to hear the substantive proceeding to be involved in that level of management of the arrangements in place on the applicant’s side in circumstances where such applications may be contested, Mr Hamilton acknowledged his proposal may result in the docket judge being precluded from hearing the substantive proceeding. His suggested solution was to offer to limit any such applications to once in every 365 day period, with such applications to be heard by a judge other than the docket judge. Mr Hamilton said that his expectation is that an application of this type would probably only happen once in the entire life of the proceeding, if at all, because “it would only really happen if a large potential investor sought to come in to support the class action” and Mr Hamilton does not envisage that happening. Smaller issues of tokens would be at Mr Hamilton’s discretion without any need to involve the Court. Only token issues that would result in an issue more than one per cent in the total available issuance would require Court approval.

75    Mr Hamilton noted that the LFA (on 14 days’ notice) and the CMP can effectively be amended at will by JPB Liberty and accordingly, offered to undertake to maintain in substance the protections in cl 3.17 of the CMP as amended.

CONSIDERATION

76    Mr Hamilton and the respondents did not agree as to the legal basis for relief sought by the respondents. The parties were also in dispute as to the nature and extent of any obligation owed by a representative applicant to group members in representative proceeding. I will first address the applicable principles and then the application of the principles to the proceeding at hand.

Nature of relationship between representative applicant and Group Members

77    At the heart of this application is the issue of conflict of interests between Mr Hamilton and Group Members. The respondents’ principal argument is that Mr Hamilton’s multiple roles — as a litigant in person; representative applicant; Chief Executive Officer, director and sole shareholder of the Funder; the largest holder of SUFB Tokens; and the person who controls the issue of SUFB Tokens — create, at the least, a real potential for Mr Hamilton’s personal interests and his duties to the Funder to conflict with his duties to, and the interests of, Group Members.

78    Mr Hamilton’s submissions oscillated on the seminal issue of the representative applicant’s duty to group members, at times denying any such duty was owed, but ultimately contending that the duty was of limited scope and secondary to the representative applicant’s own interests in successfully prosecuting their own claim. As the argument developed, a central point of contention between the parties was the ambit of the duties Mr Hamilton owes to Group Members in conducting the proceeding and whether such duties are secondary to his own interests in the proceeding.

79    A substantial portion of Mr Hamilton’s written and oral submissions were devoted to demonstrating that a representative applicant was not a fiduciary of Group Members, in the sense of being legally bound to put the interests of Group Members ahead of his own. The contrary position was expressly recognised by the CMP prior to the CMP being amended during the hearing to delete the adjective “fiduciary” from the statement about the duty owed by Mr Hamilton to the Group Members. In his supplementary submissions, Mr Hamilton submits that a representative applicant in a representative proceeding does not owe fiduciary duties to group members. Mr Hamilton submits that for this reason the starting point for the respondents’ “entire conflict of interest argument” is flawed. Mr Hamilton submits that his primary obligation as representative applicant is to pursue his own claim. He says that Group Members gain the benefit of the litigation without taking on the risks. Mr Hamilton contends that as representative applicant he owes no fiduciary obligation to Group Members because Group Members could have no reasonable expectation that he would act in the interests of Group Members to the exclusion of his own interests. He submits that it is the primary obligation of the Court to protect group members and that any legal representatives acting as such in the proceeding, including the respondent’s legal representatives, have an obligation to protect group members which in his submission is derivative of the legal representatives’ duty to the court.

80    As the argument developed, the point about nomenclature faded in significance. Both Mr Hamilton and the respondents accepted that the structure and content of Part IVA of the Act imposes statutory duties on a representative applicant. The respondents’ position was that it mattered not how the duty was described, whether as fiduciary or as an implied statutory duty, what is important is the content of the duty owed by a representative applicant to group members in the conduct of common claims. The difference between the parties thus reduced as the argument developed to a contest as to the content and scope of the statutory duty.

81    The respondents submit that there is a duty on the representative applicant not to act contrary to the interests of group members in conducting the representative proceeding: Parkin v Boral [2022] FCAFC 47; 291 FCR 116 at [126] (Murphy, Beach and Lee JJ). The respondents submit that the duty is not limited to particular aspects of the conduct of the litigation, such as settlement approval or class closure, but extends to the conduct of the proceeding generally. They rely by way of analogy on the duties of a representative applicant’s lawyers to non-client class members which extend to the preparation and prosecution of the proceeding generally, and submit that the duty of a representative applicant to group members must be co-extensive, particularly, where, as here, the representative applicant is acting in person: Kelly v Willmott Forests (No. 4) [2016] FCA 323; 335 ALR 439 at [308] to [309] (Murphy J).

82    Mr Hamilton submits that the duty is not so wide and is rather a duty not to deprive group members of their substantive rights. Mr Hamilton submits that the duty does not extend to the day-to-day management of the case including the making of forensic decisions, decisions about how and where to spend money and decisions where it cannot be ascertained prospectively whether those decisions will make any difference in the end result of the case. Mr Hamilton submits that where it is not possible prospectively to determine how a forensic decision might affect the outcome of a case then it is not appropriate to suggest that a conflict of interest can arise in respect of such decisions. Mr Hamilton contends that there is a meaningful distinction between decisions that affect substantive rights and mere forensic decisions. Further and crucially, Mr Hamilton submits that a representative applicant is justified in pursuing their interests “primarily” and in treating the group members’ interests as “secondary”. Mr Hamilton reasons as follows:

(1)    Part IVA of the Act is procedural and not substantive, citing BHP Group Limited v Impiombatao [2022] HCA 33 at [54] (Gordon, Edelman and Stewart JJ) in that it extends the representative applicant’s claim as the vehicle for determining the claims of other group members;

(2)    The representative applicant’s claim remains the basis of the claim and “always has to come first” and the group members’ claim “tails on from that, as a procedural matter, not as a substantive” matter; and

(3)    It follows that the scheme of Part IVA tends against the imposition of typical fiduciary relationships where the fiduciary undertakes to prefer the interests of the beneficiary over their own interests because the scheme requires the representative applicant to pursue their own claim “primarily” and to “then secondarily protect the interests of group members” in a limited way by not depriving group members of their substantive rights.

83    I am not persuaded by Mr Hamilton’s submissions. They are contrary to authority and mischaracterise the scheme of Part IVA. For the reasons that follow, I am satisfied that as the representative applicant in the present proceeding, Mr Hamilton owes a duty to Group Members not to act in a way that is contrary to their interests in conducting the proceeding.

84    In Parkin v Boral the Full Court recognised that a representative applicant owed a duty to group members not to act contrary to the interests of group members: at [126]. The Full Court did not limit the ambit of that duty to particular aspects of, or stages in, the conduct of the litigation, such as settlement approval or class closing. In the circumstances of this case, where Mr Hamilton is acting in person and by his conduct of the proceeding and also by exercising rights conferred on him under the LFA, he can bind Group Members, the duty he owes to Group Members must be at least co-extensive with the duties of lawyers to non-client group members.

85    I do not accept that a limitation on the ambit of the duty can be drawn by reference to the distinction that Mr Hamilton seeks to draw between decisions which affect substantive rights of Group Members and those which are merely forensic or procedural in nature. That distinction is not sensibly maintainable when considered in context. For example, a forensic decision not to call evidence on a particular issue or a procedural decision not to pursue one or more of the common claims may readily be seen as potentially impacting the substantive rights of Group Members. Both decisions, even though not in relation to settlement per se or class closure, have the real potential to impact Group Members’ interests. Mr Hamilton’s submission that it is difficult to determine prospectively whether Group Members’ interests will be adversely affected by a particular decision may be accepted, but it serves to demonstrate why it is all the more important to the operation of Part IVA for the representative applicant’s interests to be substantially aligned with those of Group Members, as opposed to the interests of the Funder, and to recognise that the representative applicant owes a duty not to act in a way that is contrary to the interests of Group Members. Conflicts may manifest in ways that are subtle and the interests of group members may be negatively impacted in a way that is unintentional. Recognising that a representative applicant owes a duty to group members not to act contrary to the interests of group members requires the representative applicant to be vigilant in keeping group members’ interests front of mind.

86    Mr Hamilton submits that the authorities cited by the respondents do not support the contention that a representative applicant owes a fiduciary duty to group members in a representative proceeding. Further, that statements to that effect in the authorities relied upon by the respondents are obiter dicta which is not seriously considered. He says that the line of obiter dicta can be traced to Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [40] (French CJ, Bell, Gageler and Keane JJ) which Mr Hamilton submits does not actually state that representative applicants owe fiduciary duties to group members. Mr Hamilton submits that I am bound by a line of authority which he describes as being to contrary effect, namely, that representative applicants do not owe fiduciary duties to group members. The line of authority relied on by Mr Hamilton in this respect comprises the decision in Timbercorp Finance Ltd (in liq) v Collins and Tomes [2015] VSC 461 (Timbercorp PJ), the intermediate appeal in Timbercorp Finance Ltd (In Liq) v Collins and Tomes [2016] VSCA 128 (Timbercorp VCA) and the ultimate appeal in Timbercorp Finance Ltd (In Liq) v Collins and Tomes [2016] HCA 44; 259 CLR 212 (Timbercorp HCA).

87    Mr Hamilton submits that to recognise a duty that is fiduciary in character as owing by a representative applicant to group members would disturb “a finely balanced statutory scheme” and would be inconsistent with the analysis of Part IVA in the High Court’s decision in Timbercorp HCA and Impiombato.

88    Meta accepts, correctly, that the plurality’s statement in Tomlinson at [40] that representative parties in class actions typically owe fiduciary duties to group members was obiter dicta. However, Meta contends that it was seriously considered obiter dicta and that since Tomlinson there has been a line of binding authorities which affirm this proposition.

89    It is convenient to extract the relevant passage from Tomlinson at [40] in full:

40     Traditional forms of representation which bind those represented to estoppels include representation by an agent, representation by a trustee, representation by a tutor or a guardian, and representation by another person under rules of court which permit representation of numerous persons who have the same interest in a proceeding. To those traditional forms of representation can be added representation by a representative party in a modern class action. Each of those forms of representation is typically the subject of fiduciary duties imposed on the representing party or of procedures overseen by the court (of which opt-in or opt-out procedures and approval of settlements in representative or class actions are examples), or of both, which guard against collateral risks of representation, including the risk to a represented person of the detriment of an estoppel operating in a subsequent proceeding outweighing the benefit to that person of participating in the current proceeding.

(emphasis added)

90    That passage is directed to forms of representation which bind those represented to estoppels by the representative. An additional example to the traditional forms of that type of relationship is identified as “representation by a representative party in a modern class action”. A point being that in a representative proceeding, the representative has the capacity to take action that is binding on the represented parties.

91    In that context, the plurality observed that each of the forms of representation identified, including class actions, are “typically” the subject of various safeguards, namely, “fiduciary duties imposed on the representing party or of procedures overseen by the court (of which opt-in or opt-out procedures and approval of settlements in representative or class actions are examples), or of “both”. Such safeguards protect against the risk inherent in the potential collision between binding representation and errant representation. The plurality, in obiter, recognised the complimentary roles that the twin safeguards of fiduciary obligation (or an analogue arising from statute) and court oversight play in protecting the interests of represented parties in representative actions. In some contexts, one or other of the safeguards will apply, but in others, the circumstances may dictate that both safeguards are required to protect the interests of the represented parties.

92    In the setting of a representative class action, it may readily be seen that the ambit of the two types of safeguards overlap, but not entirely. Recognising that the representative applicant owes a duty not to act contrary to the interests of group members serves the purpose of protecting group members from the representative proceeding being conducted in a way that is motivated by preferring the self-interest of the representative applicant to the interests of group members when there is not complete alignment between the relevant interests. The protection afforded by the court’s supervisory role in relation to settlement approval, for example, may overlap to some extent with the protection given by imposing a duty on the representative applicant but only to the extent that the conduct of the proceeding has culminated in a settlement which is before the court for approval. Where the representative applicant conducts the proceeding in such a way as to act to the detriment of group members in a way that falls short of putting forward a settlement for approval, the safeguard of imposing a duty to not act in a manner contrary to the interests of group members serves an important purpose. Contrary to Mr Hamilton’s submission that to recognise a duty of this type would disturb the statutory scheme and be inconsistent with the analysis of Part IVA in Timbercorp HCA and Impiombato, imposing a duty of this type facilitates the operation of the statutory scheme.

93    In Dyczynski v Gibson [2020] FCAFC 120; 280 FCR 583, the Full Court was concerned with concessions made by the representative applicant in the representative proceeding which had the effect of excluding the appellants from the class definition. The appellants were not informed of those concessions and upon discovering that the class proceeding had been settled sought to be substituted as the applicants. Murphy and Colvin JJ held that the appellants were not bound by those concessions primarily because neither the representative applicant nor the respondent to the class proceeding had sought to give legal effect to the concession by means of an order or declaration: at [198]. Murphy and Colvin JJ also concluded that a range of other matters demonstrated that the concession could not provide a proper foundation for a conclusion that the appellants had ceased to be class members: at [199]. One reason for reaching this conclusion was that the appellants had not been given notice of the procedure for the determination of a preliminary question in which the concession had been made: at [204]. Murphy and Colvin JJ held that the solicitors acting for the representative applicant and the appellants were obliged to inform the appellants about the procedure and had failed to obtain the appellants’ instructions in respect of the concession and had not informed them of the concession until after the appeal commenced: at [208]. In this context, their Honours observed (at [209]):

209.     Even if [the solicitors] had not entered into a retainer with the appellants [the solicitors] would have had an obligation to give them notice of the procedure for determination of the Preliminary Questions. The scheme of Part IVA is that the applicant has the conduct of proceedings on behalf of the class members and has fiduciary obligations to them: [Tomlinson] at [40] (French CJ, Bell, Gageler and Keane JJ). The applicant’s lawyers also owe obligations to class members but how far those obligations extend is not settled…

210.     In acting for the representative applicant [the firm] was obliged to act consistently with the representative applicant’s fiduciary obligations to class members. Thus it was necessary for [the solicitors] to notify affected class members of the procedure for determination of the Preliminary Questions so that affected class members could decide whether and if so how to best protect their interests, including by deciding to instruct [the solicitors] to represent their individual interests if they considered that appropriate.

(emphasis added)

94    Meta submits that the better view is that the paragraphs extracted above form part of the ratio of Dyczynski. I agree. In addition, paragraph [40] of Tomlinson and paragraph [209] of Dyczynski have been cited by the High Court as support for the proposition that in exercising the power to stay a representative proceeding the court recognises that the representative applicant typically undertakes the fiduciary obligations of a representative party to members of the group: Wigmans v AMP Limited [2021] HCA 7; 270 CLR 623 at [117] (Gageler, Gordon and Edelman JJ). Similarly, the minority in Wigmans did not see difficulty in ascribing to a representative applicant obligations of a fiduciary character: [44] (Kiefel CJ and Keane J). That critical proposition was reiterated in the same terms as in Dyczynski more recently in Paschke v Secretary, Department of Social Services [2023] FCAFC 143 at [20] (Anderson, McEvoy and Hespe JJ).

95    For completeness I note that the statements in Dyczynski have been approved or applied in multiple single judge decisions in this Court including: Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355 at [24] (Gleeson J); Kayler-Thomson v Colonial First State Investments Limited (No 2) [2021] FCA 854 at [82] (Colvin J); and Brady v NULIS Nominees (Australia) Limited atf the MLC Super Fund [2021] FCA 999 at [28] (Markovic J).

96    For present purposes, it is sufficient to recognise that a representative applicant typically undertakes obligations akin to the fiduciary obligations owed by a representative party to represented parties. Mr Hamilton’s unusually extensive interests in this proceeding and the total alignment of his interests with those of the Funder provide a compelling basis to conclude that, even more so than in a typical representative action, he is subject to a duty not to act contrary to the interests of Group Members.

97    Dyczynski is a stark example of how even experienced legal practitioners, including senior counsel, junior counsel and solicitors, who owe duties to the court and the appellants by reason of their retainer can through mere inadvertence, or otherwise, breach those strict duties. Unlike the independent legal representatives retained by the representative applicants in Dyczynski, Mr Hamilton is appearing as a litigant in person. In Wilkinson v Wilson Security Pty Ltd [2022] FCA 756, Colvin J made the following observation in respect of a litigant in person who was not legally qualified and who had commenced representative proceeding as the representative applicant:

12.     … The Court is unable to look to the lawyers for the representative applicant as independent officers with duties to the court to perform their obligation to act in the interests of the group members when dealing with the determination of the common questions by proceedings or settlement: as to which obligation, see Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323 at [220], [308] (Murphy J)

98    Notwithstanding that Mr Hamilton is legally qualified, he has been at pains to make clear that he does not act as a solicitor for the Group Members and is not the solicitor on record. He eschews owing any professional obligations to Group Members. The Court is not able to rely on him as it would on an independent solicitor on the record with duties to the court and to Group Members. The risk that manifested in Dyczynski is more pronounced in this proceeding — there is no independent solicitor who owes obligations to the court, whether as solicitor on the record or as legal advisor to the representative applicant. Any reliance which the Court may otherwise place on Mr Hamilton, either in his capacity as an admitted solicitor or by reason of the duty that he owes as the representative applicant to Group Members, is undermined by the numerous conflicts of interests arising from his extensive additional interests in the proceeding and his alignment with the Funder. For these reasons, notwithstanding that Mr Hamilton sought to distinguish Wilkinson on the basis that unlike Mr Wilkinson, he is legally qualified, I consider Colvin J’s analysis of the importance of independent legal representation in representative proceedings to be compelling, and apt to the circumstances of this proceeding.

99    For completeness I note that the respondents submit that Mr Hamilton’s conduct of past case management hearings demonstrates his inexperience in conducting representative proceedings. It is not necessary for me to decide that issue. Even if one assumes, without deciding, that Mr Hamilton is competent by reason of his qualifications and experience to act as a solicitor in proceedings of this type, that is not what he is purporting to do in this proceeding. The fact that he is legally qualified does not ameliorate the risk attendant on enabling him to conduct a representative proceeding without engaging an independent legal practitioner who owes, and acknowledges, a duty to the Court and to Group Members. It is not just that Mr Hamilton is not independent – it is that he is adamant that he is not acting as a lawyer for anyone. Were the proceedings not representative proceedings, then Mr Hamilton would be free to take that course, even though in doing so, he may suffer the oft recognised risks attendant on a lawyer acting for themselves. In a representative proceeding, that risk is not confined to the individual applicant, but is amplified across the whole of the group members.

100    This proceeding has been shorn of an important measure of protective oversight of the manner in which Mr Hamilton conducts the representative proceeding in circumstances where he has power to affect the rights of all Group Members. The scheme of Part IVA is that the applicant has the conduct of proceedings on behalf of the class members and as a result typically owes fiduciary obligations to them. The Court relies on lawyers’ adherence to their duties as officers of the Court when acting for a representative applicant, without which the Court would itself have to supervise the representative applicant’s performance of their fiduciary obligations: Wilkinson at [12]. To recognise that Mr Hamilton owes a duty to Group Members not to act contrary to their interests is consistent with the statutory scheme and facilitates the operation of the scheme in a way that balances the advantages inherent in prosecuting common claims as representative proceedings and the potential disadvantage visited upon group members as a consequence of being bound by the representative applicant’s conduct of the proceeding.

101    Mr Hamilton’s submissions to the effect that characterising the representative applicant’s relationship with group members as fiduciary is a step too far because that would be to require the representative applicant to act in the interest of the beneficiaries to the exclusion of all others, particularly the representative applicant’s own, interests, proved to be a straw man argument. The duty for which the respondents contend, and which I accept, is more limited. It is a duty not to act contrary to the interests of the Group Members.

102    Mr Hamilton’s reliance on what may be called in shorthand the Timbercorp line of authority can be addressed in short order:

(1)    in the primary judgment Timbercorp PJ, Robson J states at paragraphs [573] to [574] that the representative plaintiff is not the subject of fiduciary duties owed to group members and is not required to consider the wider interests of group members. No authority is cited for either proposition. I respectfully decline to follow these statements in light of the authorities that I have traversed above;

(2)    in Timbercorp VCA the Court stated as follows:

213.     The analysis of pt 4A set out above shows also that the group members in the group proceeding were not privies of the plaintiff in respect of unpleaded claims and defences, and that Tomlinson does not hold otherwise. The plaintiff was not the agent of the group members; nor was he their fiduciary. The group members had no control over the conduct by the plaintiff of the group proceeding. They have no enforceable rights against him in the event that they consider that he has not advanced, or not properly advanced, their unpleaded claims. In advancing their amended defences, the group members are not claiming ‘under or through’ the plaintiff in the group proceeding. It is true that, by reason of the provisions of pt 4A, the plaintiff represented group members in that proceeding. And, to the extent of that representation, group members, in so far as they take its benefit, must also share in its burden. Nevertheless, the plaintiff did not represent group members in respect of their unpleaded defences and claims.

(footnotes omitted, emphasis added)

103    Read in context, the Victorian Court of Appeal’s statement that the representative plaintiff was not the fiduciary of the group members is confined to the unpleaded claims of the group members because the representative plaintiff did not represent the group members in respect of those defences and claims. The Court of Appeal’s statements in respect of unpleaded claim and defences does not assist Mr Hamilton in respect of his obligations to Group Members in relation to pleaded claims and defences which are the subject of this stay application. There was no explicit consideration by the High Court of the lower courts’ statements with respect to the fiduciary nature of the representative plaintiff’s role. Further, the majority referred to Tomlinson at [40] with apparent approval: at [45] to [46]. Accordingly, the Timbercorp line of authority does not stand for the proposition that Mr Hamilton urges, namely, that representative plaintiffs do not owe fiduciary duties to group members. It is also contrary to the express statements of the High Court in Wigmans, which I have referred to above.

104    Accordingly, in determining the present applications, I will proceed on the basis that Mr Hamilton owes a duty to Group Members not to act contrary to the interests of Group Members in conducting the representative proceeding and that duty is not limited to conduct that relates directly to settlement or class closure in the way in which Mr Hamilton contended.

Stay of Proceeding

105    The Federal Court has the power to stay proceedings arising from a variety of sources including the Court’s inherent power to control its own proceedings, the implied jurisdiction under ss 22 and 23 of the Act, and r 1.32 of the Rules: Perera v Getswift Ltd [2018] FCAFC 202; 263 FCR 92 at [121] to [125], [135] (Middleton, Murphy and Beach JJ); Chen v Monash University [2016] FCAFC 66; 244 FCR 424 at [40] to [41] (Barker, Davies and Markovic JJ).

106    The first point of divergence between Mr Hamilton and the respondents is as to the bases on which the Court may exercise the power to grant a stay of the proceeding.

107    Mr Hamilton’s submissions were largely directed to the nature of the power of the Court to grant a stay, rather than identifying the source of the power to grant a stay. In particular, Mr Hamilton emphasised the reasoning of Kirby J in Campbells Cash and Carry Pty Limited v Fostif Pty Limited [2006] HCA 41; 229 CLR 386, 450 to 451 especially paragraphs [143] to [144] extracted below:

143.     …it is important to recognise how exceptional it is for a court to bring otherwise lawful proceedings to a stop, as effectively the primary judge did in this case. It is very unusual to do so by ordering the permanent stay of such proceedings …

144.     The reason why it is difficult to secure relief of such a kind is explained by a mixture of historical factors concerning the role of the courts; constitutional considerations concerning the duty of courts to decide the cases people bring to them; and reasons grounded in what we would now recognise as the fundamental human right to have equal access to independent courts and tribunals. These institutions should be enabled to uphold legal rights without undue impediment and without rejecting those who make such access a reality where otherwise it would be a mere pipe dream or purely theoretical.

108    Mr Hamilton submits that granting a stay is “an extreme measure done in exceptional circumstances with the greatest of caution”.

109    Mr Hamilton submits that a permanent stay should be used as a tool of “absolute last resort”. Google submits that the statements to that effect relied on by Mr Hamilton are readily distinguished from the present proceeding because whereas in the context of inter partes litigation the effect of a stay would be to prevent a determination of the merits of the claim, in a representative proceeding a stay does not prevent the prosecution of the underlying claims of the representative applicant or any of the Group Members in other proceedings: Perera at [122].

110    Mr Hamilton contends that the test for “staying in relation to any issues regarding litigation funding agreements” was stated by the majority of the High Court in Fostif at [63]:

63.    …The Court concluded that whether proceedings funded by a litigation funder are an abuse of process depends on whether the role of that funder “has corrupted or is likely to corrupt the processes of the court to a degree that attracts the extraordinary jurisdiction to dismiss or stay permanently for abuse of process”…

111    The gravamen of Mr Hamilton’s submission is that the only circumstance in which the Court can stay proceedings “in relation to any issues regarding litigation funding agreements” is where the Court is satisfied that to allow the proceeding to continue would be an abuse of process that would result in a “corruption of the processes of the Court”. I reject that submission.

112    Even in circumstances falling short of an abuse of process, the Court has power to stay proceedings where to do so is in the broader interests of justice. That is demonstrated by the decision of the Full Court in Perera where the Full Court dismissed an appeal from the primary judge’s decision to grant a permanent stay in respect of two of three competing representative proceedings against the same respondent. The Full Court rejected the primary judge’s conclusion that the stayed proceedings could be characterised as an “abuse”, but nevertheless found that there was power to grant the stay because, having regard to all the circumstances (including the respective positions of the parties and the broader interest of ensuring that class actions are run expeditiously and in a cost efficient manner), the stay was in the interests of justice: Perera at [157], [164] to [165]. At [121], the Full Court said:

121.     Faced as the Court is with such risks to the proper administration of justice we consider it to be plain that the Court has power to order a permanent stay of one or more competing class actions whether in the exercise of its inherent power, or its express and implied powers to manage the cases before it in the interests of justice and the parties and consonant with the requirement under s 37M, or in its equitable jurisdiction.

(emphasis added)

113    The Full Court observed at [126], that the Court’s powers to stay proceedings “are not constrained by any necessity to fit them into a specified category such as ‘abuse of process’.” At [138], the Full Court said:

138.     In determining whether either condition is satisfied, a consideration of all the relevant circumstances is required, which necessitates “a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case”: Johnson v Gore Wood & Co [2002] 2 AC 1 at 31; per Lord Bingham of Cornhill cited with approval in UBS AG at [7].

114    Although Perera involved three competing open class actions of which two were stayed the Full Court’s observations were made in respect of the Court’s power generally and not confined to the particular circumstances of that case. Abuse of process is but one circumstance in which it may be appropriate to stay proceedings in the interests of justice.

115    The High Court has repeatedly emphasised that it is not possible to describe exhaustively what will constitute an abuse of process, and that the categories of abuse are not closed: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at [47] to [48] per Brennan J; Rogers v The Queen [1994] HCA 42; 181 CLR 251 at [255] per Mason CJ, [287] per McHugh J; Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 at [74] per Gaudron J and the cases there cited; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [9] to [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ and the cases there cited; PNJ v The Queen [2009] HCA 6; 83 ALJR 384 at [3] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. In UBS AG v Tyne as trustee of the Argot Trust [2018] HCA 45; 265 CLR 77, Kiefel CJ, Bell and Keane JJ said (at [1]):

1.    … The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute...

See, similarly, Tomlinson at [25] (French CJ, Bell, Gageler and Keane JJ).

116    In Jago, Gaudron J observed (at [9]) that “in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand.”

117    A stay may be justified where there may be the real potential for an abuse of the Courts’ processes: Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd [1997] FCA 9; 72 FCR 261, at [268] to [269]. The Court need not be satisfied that an abuse has in fact occurred in order to stay the proceeding. That there is “real potential” for an abuse of process is sufficient.

118    In modern litigation, the public interests that must be considered include ensuring the efficient conduct of litigation consistently with contemporary case management principles. Thus, in UBS AG, Kiefel CJ, Bell and Keane JJ said (at [38]):

38.     The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the FCA. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University [(2009) 239 CLR 175 at 213 at [98]] explain, the “just resolution” of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the FCA. Integral to a “just resolution” is the minimisation of delay and expense. …

119    Similarly, Gordon J (dissenting in the result, but not as to principle) said (at 151):

151.     The administration of justice may be brought into disrepute, in such a way as to amount to an abuse of process, if the public perception is that the legal system is unfair, inefficient, ineffective, expensive (both for the parties and in terms of the use of public moneys) or contrary to the rule of law. Permitting a proceeding to continue in such circumstances might suggest tolerance of behaviour that is contrary to the just, efficient and timely resolution of disputes, including attempts to re-litigate questions already resolved.

120    A proceeding commenced or carried on consistently with the ordinary procedures of the Court may nevertheless constitute an abuse of process where it involves unfairness, inefficiency and undue expense or otherwise is apt to bring the administration of justice into disrepute. A proceeding may be stayed even if the applicant has a prima facie case. To bring the administration of justice into disrepute is an expression which is not, in any real sense, concerned with the public reputation of the court, or public confidence in the court but is directed to the integrity of the court, including its processes: Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; 271 CLR 132 at [37] (Edelman J).

121    In the present context, the consideration of the integrity of the Court’s processes is focussed on Part IVA and the procedures in relation to representative actions. That context includes the fact that there is no involvement of a solicitor on the record for the applicant. The significance of the role of a solicitor on the record is that a solicitor’s duty to the Court is paramount: Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 at [555] to [556] (Mason CJ) and [572] (Wilson J). A solicitor, as an officer of the Court, is responsible to the Court for the proper conduct of the litigation before the Court and is answerable to the Court should anything untoward occur in the litigation: Myers v Elman [1940] AC 282. The solicitor on the record therefore represents an essential component of the Court’s ability to maintain control over the litigation before it: QGC Pty Ltd v Bygrave [2010] FCA 659; 186 FCR 376, at [52] to [53] (Reeve J). These considerations have particular operation in the context of representative actions, where the involvement of a solicitor who acts for the applicant, rather than a litigation funder, is one way in which the risk of abuse or conflict is usually mitigated: Clairs Keeley (a Firm) v Treacy (2004) 29 WAR 479 at [75].

122    Drawing all these principles together, in context of the present application, the essential question is whether the proceeding ought to be stayed in all of the circumstances in the broader interests of justice which I have identified. If that question is answered in the affirmative, the proceeding should be stayed regardless of whether I am satisfied that the proceeding rises to the level of an abuse of process. If I am satisfied that the proceeding is, or if continued has the real potential to be, an abuse of process, then I may more readily be satisfied that the interests of justice demand that the proceeding be stayed. However, if I am satisfied that to allow the proceeding to continue as a representative proceeding has the real potential to bring the administration of justice into disrepute, then a stay may also be granted.

123    Before turning to apply the principles I have identified to the circumstances of this application, there are two further related arguments raised by Mr Hamilton that I will address. They relate to what he says is the significance of the finding in Hamilton (Service Out) that the criteria of a prima facie case in r 10.43(1)(c) has been met. To the extent that I followed the first part of his submission, Mr Hamilton contends that the Court by reason of its decision on the ex parte application for leave to serve out is estopped from granting a stay of the proceeding. Mr Hamilton submits that:

(1)    the Court in Hamilton (Service Out) has actively asserted its jurisdiction to hear the proceeding on a prima facie case and public interest basis;

(2)    a permanent stay of a proceeding is a refusal to exercise jurisdiction citing Jago at 41, [13] (Brennan J); 76, [14] (Gaudron J);

(3)    where a litigant has a prima facie case, a predominant improper purpose in bringing and maintaining proceeds is not enough to justify a stay — it must also be shown that the litigant does not intend to pursue the cause of action to a conclusion citing Williams v Spautz [1992] HCA 34; 174 CLR 509 at [23] to [24] (Mason CJ, Dawson, Toohey and McHugh JJ);

(4)    as the Court has “actively” asserted its jurisdiction in this matter, it is estopped from renouncing its jurisdiction by staying the proceeding permanently unless it was convinced that a prima facie case and public interest no longer existed.

124    Mr Hamilton’s submissions are misconceived for many reasons and are rejected. It suffices to dispense with the submission by noting that it is premised on the assertion that once the Court has exercised its jurisdiction in a proceeding, it is estopped from refusing to continue to exercise its jurisdiction by way of a permanent stay. No authority is cited in support of the proposition and it is contrary to principle. The Court has inherent power to control its proceedings, including ordering that a proceeding be permanently stayed, to prevent, amongst other things, an abuse of its process or where to allow the proceeding to continue would bring the administration of justice into disrepute. If a permanent stay is required to prevent an abuse of the court’s processes or prevent the administration from being brought into disrepute, it is no answer to say that the plaintiff has a prima facie or even a stronger case. While the strength of a case may weigh as a relevant factor in determining whether a permanent stay is granted, the mere existence of a prima facie case does not fetter the Court’s power to stay proceedings: see for example, Jago at 74, [7] and [9] (Gaudron J).

125    Mr Hamilton appeared in his oral submissions to accept that the finding of a prima facie case for the purpose of r 10.43(4)(c) in Hamilton (Service Out) cannot ground an estoppel. He then pivoted and sought to reframe his submissions in respect of the strength of his case and the underlying public interest as factors weighing against the grant of a stay. To the extent that Mr Hamilton seeks to rely upon those features of his case as factors weighing against the grant of the permanent stay, I have given them due consideration noting that the finding in Hamilton (Service Out) was ex parte for a particular purpose, did not require a detailed consideration of the evidence in the context of the requirement in r 10.43(4)(c) which is “not particularly onerous”. I note for completeness that the respondents dispute Mr Hamilton’s characterisation of the strength of his prima facie case.

126    Relatedly, Mr Hamilton submits that Spautz is authority for the proposition that once a prima facie case is demonstrated and there is intention by the applicant to pursue the matter to conclusion, the proceedings cannot be stayed. This submission misapprehends the finding in Spautz. In Spautz, proceedings commenced by Dr Spautz were stayed by the trial judge. The trial judge’s decision was overturned in the intermediate appellate court and reinstated by the High Court. The stay was made where there had been a finding of fact by the trial judge, upheld by the intermediate appellate court, that Dr Spautz’s purpose in commencing the stayed proceedings was to exert pressure on the respondents for an ulterior purpose. It is in this context that the Court made the observations on which Mr Hamilton relies:

23     What the appellants assert here is that the court will with the statement of Lord Hodson in Connelly.

“To exclude a litigant with a prima facie case, whether prosecutor or civil claimant, from the courts seems to be ... not justifiable unless an Act of Parliament so provides”.

However, in that case, a majority of the House of Lords considered that a superior court has power to prevent an abuse of process, certainly when it amounts to oppression. The same view was taken by all three members of the English Court of Appeal in Goldsmith v. Sperrings Ltd. Lord Denning M.R., who dissented on the application of the relevant principles to the particular facts, stated that the court would prevent an abuse of process where, though the process might appear to be entirely proper and correct, it was used for an improper purpose. Scarman L.J. was of a like opinion, as was Bridge L.J. Bridge L.J. identified one difficulty when he said:

“What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.” (Emphasis added)

So would we. But his Lordship, by implication, evidently sees no difficulty with the case in which the plaintiff does not wish to pursue his or her cause of action to a conclusion because he or she intends to use the proceedings for a collateral and improper purpose.

24     In our view, the power must extend to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case. Take, for example, a situation in which the moving party commences criminal proceedings. He or she can establish a prima facie case against the defendant but has no intention of prosecuting the proceedings to a conclusion because he or she wishes to use them only as a means of extorting a pecuniary benefit from the defendant. It would be extraordinary if the court lacked power to prevent the abuse of process in these circumstances.

(footnotes omitted)

127    Thus, properly understood the question before their Honours in Spautz was whether the power to stay a proceeding for an abuse of process resulting in oppression applied even where a prima facie case could be made out. Their Honours held that it did. In dealing with that specific question their Honours did not find the inverse proposition, as urged by Mr Hamilton, that where there is a prima facie case, the power to stay for abuse of process is not enlivened unless there was no intention to prosecute the proceeding to a conclusion.

128    Applying the principles I have identified, I turn now to consider whether taking into account all the circumstances of the present application, the proceeding ought to be stayed in the broader interests of the administration of justice.

129    As mentioned, the respondents contend that to permit the proceeding to continue in its current form would bring the administration of justice into disrepute for two principal reasons: first, Mr Hamilton’s intractable position of conflict vis-à-vis Group Members; and second, Mr Hamilton’s interest in the proceeding has been structured in such a way that, in substance, he is obtaining prohibited contingency fees as a reward for his non-financial contributions to the litigation. I will address each issue in turn.

Conflict of Interests

130    It bears emphasis at the outset that the potential for the inadequate management of conflict of interests arising between Mr Hamilton and Group Members is particularly acute in circumstances where Mr Hamilton denied in his written submissions that he owed any fiduciary duties to Group Members, denied that was any “single real conflict of interest arising out of the litigation funding arrangement in these proceedings” and submitted during the hearing that to the extent that he owed a statutory duty to Group Members it was limited to decisions affecting substantive decisions only and was secondary to the pursuit of his own primary claim as the representative applicant.

Potential for conflict in relation to which claims are pursued and how those claims are resourced

131    There is potential for Mr Hamilton’s interests and those of Group Members to diverge in relation to which claims are pursued and how those claims are resourced. Under the arrangements in place in this litigation, including by virtue of, but not limited to, his conduct of the proceeding as a litigant in person, Mr Hamilton has control over which claims are pursued in the proceeding and how the prosecution of those claims is resourced. His own claim for relief in the proceeding is not co-extensive with the claims of other categories of Group Members. That gives rise to a real potential for Mr Hamilton’s own interests to conflict with those of Group Members.

132    Mr Hamilton points to his entitlement under the funding arrangements to, in effect, take a cut of any settlement amounts received in respect of all claims, including those in which he does not have a personal claim, as demonstrating that his interests are in fact aligned with those of all Group Members. I do not accept that this is so. The potential for Mr Hamilton to discriminate in relation to which claims are pursued and how those which are pursued are resourced by reference to his personal interests as the owner and executive director of the Funder and a substantial holder of SUFB Tokens is readily apparent.

133    It is uncontroversial that conflicts of interest may arise between a funder and group members in a funded representative proceeding. The potential divergence in interests between funders and group members and the consequential conflicts between the interests of the funder, lawyers and group members is recognised by ASIC’s Regulatory Guide 248: Litigation schemes and proof of debt schemes: Managing conflicts of interest (RG 248). These conflicts of interest can be actual or potential, and present or future. JPB Liberty’s own CMP recognises the potential for conflicts of interest to arise between JPB Liberty and Group Members.

134    Ordinarily, the potential for the interests of a funder to conflict with those of group members is mitigated through the appointment of a representative applicant, whose interests are aligned with the interests of group members. A representative applicant therefore instructs their legal representatives to conduct the proceeding consistently with their interests and those of group members, including where those interests are in conflict with those of the funder. The extent to which a funder’s interests are to be taken into account in the conduct of proceedings is ordinarily regulated by a litigation funding agreement, which itself provides conflict resolution mechanisms, including by providing, for example, for the resolution of disagreements between the funder and the representative applicant by counsel.

135    The circumstances in the present proceeding are wholly different because Mr Hamilton is not only the representative applicant, he is also the owner and executive director of the Funder. Mr Hamilton’s financial interests are entirely aligned with those of the Funder. As a director of JPB Liberty, Mr Hamilton’s general law and statutory duties to JPB Liberty could come into conflict with his duty as representative applicant to Group Members, to the extent that JPB Liberty’s interests conflict with those of Group Members.

136    For reasons of cashflow and risk, Mr Hamilton as owner and executive director of JPB Liberty has an interest in minimising the costs incurred in conducting the proceeding, because JPB Liberty is liable to cover those costs on an ongoing basis and in the event of an unsuccessful outcome, will ultimately be liable for those costs. That is not to suggest that Mr Hamilton is motivated to minimise the costs incurred in conducting the proceeding to the point that he would intentionally compromise the prospects of the proceeding being successful. To the extent that Mr Hamilton’s submissions were premised on the proposition that the respondents were wrong to suggest that he would intentionally conduct the proceeding in such a way as to jeopardise a successful outcome of the proceeding that is to miss the point. The point is that Mr Hamilton’s assessment of the risk/reward calculus on this issue is necessarily subjective and informed by his own interests, which are aligned with the Funder, and are more extensive than and different in nature to those of other Group Members.

137    Group Members, who are not liable to service such costs, or if the proceeding is unsuccessful, bear such costs, have an interest in incurring all costs reasonably necessary to give the proceeding the greatest prospect of success. From the perspective of Group Members, the risk/reward calculus on the issue of resourcing the litigation is different to that of Mr Hamilton. Notwithstanding that Mr Hamilton may at a future time share in any Litigation Proceeds in respect of the claims in which he is not personally a claimant, his interest in that contingent reward may be tempered by the fact that JPB Liberty is ultimately responsible for the funding of the proceeding and meeting any Adverse Cost Orders. Mr Hamilton is uniquely at risk in this regard because of his concentrated exposure through his ownership of the Funder. There is a real potential for a conflict to arise between the interests of Mr Hamilton and Group Members in relation to how the proceeding should be conducted and resourced.

138    That potential for conflict is exemplified by Mr Hamilton’s approach to expert evidence. The respondents submit that JPB Liberty may be motivated not to engage certain expert witnesses where JPB Liberty wants to cut costs, whereas Funded Group Members’ interests may be served by retaining those expert witnesses. Mr Hamilton’s response on this issue serves to underscore the fact that there is a real potential for his interests to conflict with those of Group Members.

139    Mr Hamilton first contends that the core cartel claims in the proceeding do not require expert economic evidence and that he has the capacity to prepare economic and market causation-based evidence without recourse to experts. That conclusion is based on both a forensic and subjective assessment on which reasonable minds may differ. In the circumstances of this case, there is no independent legal adviser undertaking the assessment. Mr Hamilton’s own assessment of this issue is not objective in circumstances where he promotes himself as the person capable of preparing the evidence in lieu of an expert. Further, the fact that his approach may reduce the need for JPB Liberty to cover the cost of such evidence may be another factor in respect of which Mr Hamilton’s and Group Members’ interests diverge and conflict. A further complication and potential conflict may arise if Mr Hamilton approves the issue of SUFB Tokens to himself, or at his direction, in recognition of his non-financial contribution in preparing such evidence. Mr Hamilton’s interests would then be doubly served: the cost of having this evidence prepared as the proceeding progress would be avoided by the Funder; and, he would increase his potential reward if the proceeding is successful by increasing his SUFB Token holding through making a non-financial contribution in respect of which he approves the issue of further tokens to himself.

140    He further contends that he “may be able to obtain economic expert evidence without paying any or large amounts of money for it”. That may be so, but it is entirely speculative. If an expert was to be remunerated by the issue of SUFB Tokens then that may undermine the expert’s status as independent, and that in turn may not be in the interests of Group Members if it negatively impacts the prospects of success of the proceeding. Mr Hamilton’s submission that the Court might order the respondents to pay for the costs of both set of experts or the appointment of a joint expert is similarly speculative.

141    Mr Hamilton next says that if expert evidence is required in relation to cryptocurrency, then he “himself is an expert in this area and is able to cite a wide range of external evidence to support his positions”. Again, Mr Hamilton’s view as to his suitability to perform this role is entirely subjective. Mr Hamilton would not be capable of giving independent expert evidence. For Mr Hamilton to commit the Group Members to a course in which he assumes the role of expert witness as well as being the representative litigant in person, controller of the Funder, major holder and controller of SUFB Tokens and the “Representative” under the LFA gives rise to yet a further potential conflict between his interests and theirs.

142    Finally, Mr Hamilton says that if all of these measures do not adequately address the issue and “it becomes apparent to the Applicant that it is necessary to obtain expert evidence or otherwise incur costs in order to not impair the Applicant’s prospects of success, then such costs can be paid for out of existing JPB Liberty funds, sales of additional SUFB Tokens to raise additional funds or by seeking Court orders that the Respondents pay the costs of both set of experts or the appointment of a joint expert”.

143    Mr Hamilton’s focus on his own position and his subjective assessment of what is necessary “in order not to impair [his] prospects of success” is constant. Once Mr Hamilton’s contention that his interests are completely aligned with Group Members’ interests is rejected, as it must be, and it is recognised that Mr Hamilton’s risk/reward calculus and that of the Group Members is materially different, it is clear that to conduct the proceeding by reference to the touchstone of not impairing Mr Hamilton’s prospects of success on his own claim gives rise to a real prospect of conflict between his interests and the interests of Group Members. To allow this representative proceeding to be conducted on this basis creates a real risk of bringing the administration of justice into disrepute and undermining the integrity of the Court’s processes.

Potential for conflict in relation to settlement of the proceeding

144    The real potential for Mr Hamilton’s interests to conflict with those of Group Members is further illustrated in relation to settlement. JPB Liberty will be financially exposed if the proceeding is lost, whereas Group Members will not be so exposed. This difference results in the potential for JPB Liberty to be motivated to settle the proceeding for a lower sum to avoid its potential exposure whereas Group Members’ interests may be served by continuing the proceeding in the hope of achieving a larger return. As Mr Hamilton’s submissions developed on the application, he ultimately recognised this potential conflict. It was one of the limited conflicts he recognised as having the potential to impact what he described as Group Members’ substantive rights. It was this potential conflict that Mr Hamilton sought to accommodate by the amendment to cl 3.17 of the CMP during the hearing.

145    The effect of that amendment included introducing a mechanism by which Mr Hamilton and the Funder would not agree to keep confidential any settlement offers made to Mr Hamilton or proposed to be made by him and would publish such offers to the JPB Liberty Hive blockchain and notify “Other Funded Persons”. If at least 30 Other Funded Persons indicate that they want external legal advice on whether a settlement offer should be made or accepted, then JPB Liberty is to appoint lawyers to advise Mr Hamilton on this issue. There are a number of difficulties with cl 3.17 of the CMP, even as amended, in remediating the potential for real conflict between Mr Hamilton and Group Members. An immediate consequence of restricting the parties’ ability to make settlement offers capable of being treated as confidential is that it is likely to stifle offers being freely made, which is not in the interests of Mr Hamilton, Group Members or the respondents. Requiring the Funder to retain a lawyer to advise Mr Hamilton on whether a settlement offer should be made or accepted falls short of protecting Group Members in the event of Mr Hamilton considering but not following any legal advice given. Issues may also arise in relation to the manner in which such lawyers are instructed and whether Group Members’ interests are adequately addressed in the process. An issue may also arise in relation to how the lawyer addresses and weighs the competing interests of Mr Hamilton and the Funder on the one hand, and the interests of Group Members on the other.

146    The other mechanisms in the LFA directed to resolving conflicts arising in relation to a proposed settlement are similarly flawed. Clauses 11.6 to 11.8 of the LFA provide a conflict resolution mechanism which applies when Mr Hamilton and JPB Liberty disagree on whether to settle the proceeding. In circumstances where Mr Hamilton’s interests are wholly aligned with JPB Liberty’s, it is difficult to conceive of a scenario in which Mr Hamilton and JPB Liberty would disagree on a question connected with settlement, so as to engage the conflict resolution mechanism provided for in the LFA. Although the definition of “Representative” under the LFA is broad enough to accommodate a scenario where Mr Hamilton is replaced as the Representative there is no suggestion on the present application that it is contemplated that Mr Hamilton will be so replaced. Further, even assuming that clause 11.6 is triggered, there is no requirement that the Representative act in accordance with Counsel’s opinion.

147    Clause 11.10 provides that subject to clause 11.11, the procedure set out in clauses 11.6 to 11.8 of the LFA applies to where the Funded Class Member and JPB Liberty disagree on whether to settle a Claim not yet the subject of Proceedings. There are three points of note. First, although clause 11.10 is triggered by a dispute as between the Funded Class Member (as opposed to Mr Hamilton in clause 11.6), it only applies in respect of Claims which are not yet the subject of Proceedings. Critically, clause 11.10 does not apply to the claims and allegations that are the subject of this proceeding and therefore affords no protections in respect of them. Secondly, adopting a generous interpretation in Mr Hamilton’s favour and assuming that the references to Representative are to be read as a reference to the Funded Class Member when triggered via clause 11.10, again, there is no requirement that the Representative act in accordance with counsel’s opinion. Thirdly, and for completeness, I note that clause 11.11 provides that where there is a proposed settlement of Claims not yet the subject of proceedings and which also involve the Settlement of Other Claims, the Funded Class Member agrees to be bound by the proposed settlement provided that more than 50% by value of Funded Class Members whose claims that are the subject of the proposed settlement vote in favour of it and advice is received from counsel that the proposed settlement is fair and reasonable. Other Claim is defined as any claims other persons have or may have against one or more Respondent for loss and damage caused to them by the Crypto Ad Ban which claims are the same or similar to the Claims.

148    The CMP highlights, rather than cures, the conflict between Mr Hamilton’s interests as the owner of JPB Liberty, and those of Group Members, in relation to settlement. It reveals that the mechanisms for resolving conflicts of interest between the Funder and Group Members rely upon Mr Hamilton adequately representing Group Members’ interests in the face of those of the Funder.

149    For example, the CMP identifies that a conflict may arise because JPB Liberty may want to settle a Funded Class Member’s claim, and the Funded Class Member may not, or vice versa (per cl 3.13). The CMP provides that where proceedings have been commenced, such a conflict is to be resolved conclusively by counsel (cl 3.14.1) and is subject to Court approval (cl 3.15). However, as noted above, that conflict resolution mechanism is triggered by Mr Hamilton taking a different view on settlement to the Funder. As set out above, the conflict resolution mechanism triggered by at least 50% by value of the Funded Class Members whose claims are the subject of the proposed settlement taking a different view on settlement to the Funder only applies in respect of a Claim that is not yet the subject of the proceeding. Given that Mr Hamilton’s financial interests are aligned with the Funder’s, it is not apparent that this conflict resolution procedure would be triggered, even if JPB Liberty wants to settle the proceeding where it is not in Group Members’ interests to do so.

150    I have not overlooked the fact that Mr Hamilton maintained that if his amendment to the CMP and the undertakings he offered were inadequate to address the potential conflict it was then a matter for the Court to consider and draft the terms of the CMP and LFA and any accompanying undertakings to its own satisfaction. This was an aspect of Mr Hamilton’s submissions to the effect that it was the Court’s primary duty to protect Group Members and that the grant of a stay must be an “absolute last resort”. In making the proposal that the Court itself redraft the LFA and CMP and craft such undertakings as are considered appropriate, Mr Hamilton denies he is seeking an advisory opinion from the Court. He maintains that he is “basically providing the Court additional tools to help manage conflicts of interest”. He further submits that what he was proposing was in reality requiring the Court to undertake “a small supervisory or additional tools function” so as to avoid a stay which must be an absolute last resort. I do not agree.

151    In my view it is no part of the Court’s function to accede to Mr Hamilton’s invitation to redraft the commercial arrangements between him, his company and Group Members. Similarly, I do not accept that in circumstances where Mr Hamilton has not retained lawyers to conduct the proceeding or to advise, it is appropriate for the Court to step in to fill the void to advise and supervise the terms and the manner in which the proceeding is conducted by Mr Hamilton. That would be to impose an onerous burden on the Court to exercise considerable control and scrutiny over the proceedings in order to ensure that Mr Hamilton was fulfilling his duties as representative applicant. There are sound reasons of policy why the Court should not perform that supervisory role. To do so would be antithetical to the Court’s obligation of independence in discharging its function to hear and determine the dispute between the parties.

Potential for conflict arising from Mr Hamilton’s interests as owner and controller of JPB Liberty

152    Two aspects of this source of potential conflict have already been addressed, namely, in relation to the conduct and resourcing of the proceeding; and the settlement of the proceeding, and need not be repeated. There are however other potential conflicts that may arise in the context of Mr Hamilton’s ownership and control of JPB Liberty. It is sufficient for present purposes to illustrate the issue by reference to the conflict that may arise consequential on JPB Liberty ceasing to fund the proceeding.

153    JPB Liberty may decide, in accordance with cl 6.9 of the LFA, in its sole discretion, to cease funding. This may be contrary to the interests of Group Members who may not otherwise be in a position to continue the “Ceased Claim” and depending on the terms on which the Ceased Claim is abandoned, may preclude the Ceased Claim being otherwise pursued.

154    Clause 3.20 of the CMP, addresses the scenario where “JPB Liberty may not want to continue funding your claim even though you want us to”, or vice versa. That may occur because JPB Liberty takes the view that a claim is not commercially viable for it to continue to fund or that the prospects of success or chances of recovery of any judgment sum are not sufficient to warrant continued funding. The CMP states in cl 3.21 that this “potential conflict” is addressed by the termination rights and dispute resolution procedures under the LFA.

155    Clause 6.9 of the Litigation Funding Agreement provides:

JPB Liberty may decide, in its sole discretion following consultation with the Lawyers and the Representative, to cease to fund any Claim, either completely or as against any particular Respondent (Ceased Claim), by giving You 14 days’ written notice. For the avoidance of doubt, any such decision by JPB Liberty does not by itself result in a termination of this Agreement.

156    As mentioned, there are presently no “Lawyers” appointed and so the obligation for JPB Liberty to consult with the Lawyers is hollow. In the present circumstances, JPB Liberty’s decision to cease funding is in its sole discretion but must follow consultation with the “Representative”, being Mr Hamilton. Mr Hamilton is thus required to engage in this consultation in his role as Representative as defined under the LFA, that is as the representative applicant in the proceeding. However, he is necessarily in a position of conflict between his interests as the representative applicant and his interests as the owner of the Funder and his duties as a director of the Funder. For so long as Mr Hamilton is the Representative, the Representative’s interests will be aligned with those of JPB Liberty, rather than Group Members with the result that Group Members’ interests are wholly unprotected in circumstances where JPB Liberty is considering ceasing funding the proceeding. Even accepting, as I have found, that Mr Hamilton, as the representative applicant, owes a duty to Group Members, separate to any obligations arising under the LFA to Funded Class Members, Group Members’ interests are inadequately protected by that duty in the setting of the pervasive conflicts of interest attendant on Mr Hamilton’s various roles. While it may be correct that in the event that Mr Hamilton abuses his position, it would be open to Group Members to protect their interests by seeking to replace Mr Hamilton as the representative applicant, the utility of that avenue of relief is dependent on the Group Members being in a position to exercise effective and timely supervision of Mr Hamilton’s conduct of the proceeding and any collateral decision-making under the LFA.

Potential for conflict arising from Mr Hamilton’s interest as a substantial holder of SUFB Tokens

157    Mr Hamilton’s status as the holder of a substantial proportion of the SUFB Tokens on issue which are likely to participate in any Litigation Proceeds also has the potential to give rise to a conflict of interest with Group Members.

158    Mr Hamilton’s interest in the Litigation Proceeds via his holding of SUFB Tokens, over and above his interest in the recovery of damages for his own claim, means that his interest in the proceeding differs to, and may conflict with, that of Group Members who do not hold SUFB Tokens. For example, Mr Hamilton may consider it commercially preferable to crystallise his interest in the proceeding through a settlement at an early stage, when a smaller number of SUFB Tokens have been issued. This would give him an entitlement to a greater pro rata portion of the 25% of the Litigation Proceeds allocated to SUFB Token Holders than would be the case if the proceeding settled at a later stage, when more SUFB Tokens may have been issued, and Litigation Costs may exceed 70% of the Litigation Proceeds. Conversely, for Group Members, it may be preferable to continue the litigation to achieve a larger overall settlement at a later stage, or to obtain a judgment in the proceeding, given the allocation of 25% of the Litigation Proceeds is constant — it is not tethered to the stage at which the proceeding is resolved. There is a real potential for Mr Hamilton’s interests as a SUFB Token Holder to conflict with the interests of Group Members.

Potential for conflict arising from Mr Hamilton’s discretionary power to issue SUFB Tokens coupled with his direct and indirect SUFB Token holdings

159    Some aspects of the potential conflict arising from Mr Hamilton’s direct and indirect interests in SUFB Tokens, including through JPB Liberty, is addressed at paragraph [43] above and need not be repeated here. That is not the only conflict of interest that arises in this context.

160    Mr Hamilton has complete control over the number of SUFB Tokens that are issued in exchange for financial and non-financial contributions, and the terms on which such Tokens are issued. Mr Hamilton thus has a discretionary power to confer an interest in the Litigation Proceeds on persons, including himself, as he sees fit. As he has acknowledged, he has not been constrained by any articulated or documented policy in his exercise of this power. Mr Hamilton’s power to issue SUFB Tokers has the potential to give rise to a significant conflict between Mr Hamilton’s personal financial interests and those of his associates on the one hand, and the interests of Group Members on the other hand.

161    As a result of the way in which the arrangements have been structured, SUFB Tokens are an important source of funding the litigation and therefore are important to the prospects of success of the litigation. Mr Hamilton’s interests in relation to the issue of SUFB Tokens are multi-faceted. As already mentioned, Mr Hamilton, being aligned with the Funder and as a substantial holder of SUFB Tokens (directly and indirectly), is interested in the proceeding achieving a successful outcome utilising the lowest funding reasonably possible, whether that funding is provided by JPB Liberty or via issue of SUFB Tokens.

162    Relatedly, Mr Hamilton has an incentive not to cause JPB Liberty to issue any more tokens in circumstances where he and his associates hold the majority of tokens on issue and the right to participation is pegged at 25% of the Litigation Proceeds regardless of the stage at which a resolution is achieved. The continued issuance of SUFB Tokens to persons other than Mr Hamilton (or persons associated with him) has the potential to dilute Mr Hamilton’s interests in the Litigation Proceeds. He has an interest in issuing SUFB Tokens to himself, and his associates, for minimal financial or non-financial contributions, provided that in his subjective assessment, the proceeding is adequately funded such that he is satisfied that the prospects of success are reasonable.

163    The position of Group Members is different. It is in Group Members’ interests for as many of the maximum available number of SUFB Tokens (being 18 million) to be issued as is necessary for JPB Liberty to build a “war chest” to use in the conduct of the litigation, and to receive such non-financial contributions from prospective token holders as is necessary to give the litigation the greatest prospect of success. I accept Mr Hamilton’s submission that an excessive outlay will not necessarily result in enhanced prospects of success but that is not the issue. Unlike Mr Hamilton who is aligned with JPB Liberty, Group Members do not have to meet the cost of funding the proceeding as those costs are incurred, they are not exposed to the potential for adverse costs orders, and they will only be required to contribute to reimbursing Litigation Costs under the LFA in the event Litigation Proceeds are generated. In these circumstances, Group Members’ interests are served by resourcing the preparation and prosecution of the proceeding at a level that permits top tier legal representation to be retained and comprehensive, experienced legal services, including in relation to expert evidence, to be supplied, that are appropriate to the complexity and scale of the proceeding. For completeness I note that the point in relation to the potential exposure to adverse costs orders may prove to be moot if Mr Hamilton either obtains an order protecting him against an adverse costs order or discontinues the proceeding if he is not successful in obtaining such an order.

164    Given that Funded Class Members have agreed under the LFA to allocate 25% of the Litigation Proceeds to SUFB Token Holders collectively, the issuance of further SUFB Tokens does not dilute Funded Class Members’ interests in the Litigation Proceeds whereas it may reduce the prorated return on individual SUFB Tokens, which collectively share in 25% of the Litigation Proceeds. In this way the divergence in the interests of Mr Hamilton and Group Members with respect to the issuance of SUFB Tokens gives rise to a real potential for further conflict of interest to arise between Mr Hamilton and Group Members.

165    The potential for Mr Hamilton to issue tokens to himself and his associates at an undervalue is real. He is the sole arbiter in relation to the terms on which any SUFB Tokens are issued and the terms on which the Tokens can be issued are not dictated by documented transparent policies or otherwise recorded. The interests of Group Members, whose right of participation in the Litigation Proceeds is of a lesser order of priority than the rights of SUFB Token Holders, demand that the 25% of the Litigation Proceeds that is reserved for SUFB Token holders is reserved to reward those who have made contributions that objectively and demonstrably add value and enhance the prospects of success of the proceeding, regardless of whether the contribution is financial or non-financial. It is in Group Members’ interests that the issue of SUFB Tokens is based on an independent and objective value based assessment so as to give rise to the greatest influx of contributions in return for the 25% participation rights reserved for SUFB Token Holders. There is a risk with the present arrangements of there being effectively two markets for the issue of SUFB Tokens, one of which is for persons not associated with Mr Hamilton and the other is for Mr Hamilton and persons associated with him, with the latter being subject to a risk of issuance at undervalue or not on arms’ length terms. If this occurred, and became public, it could undermine the utility of the SUFB Tokens as a source of funding the proceeding and that could be to the detriment of Group Members generally or in respect of some claims.

166    Mr Hamilton’s proposed undertaking in relation to involving the Court in approving issuance which exceeds one percent of the total amount of SUFB Tokens that can be issued in a 365 day period does not ameliorate this source of conflict. It would be inappropriate to allocate judicial resources additional to those engaged in the determination of the substantive proceeding to take on the role that Mr Hamilton proposes. Mr Hamilton submits that he would not seek approval more than once in any 365 day period but has not justified how it would be an appropriate application of public resources for this role to be effectively outsourced to the Court. The potential for the process to be controversial and mire the Court in what is essentially unbounded commercial decision-making collateral to the proceeding before the Court is plain. Contrary to Mr Hamilton’s submission, the Court is ill placed to oversee the management of these conflicts, when they arise outside of a settlement context. In any event, the undertaking as framed would leave Mr Hamilton with ongoing unfettered issuance powers in relation to all issuance that is less than designated percentage triggering referral to the Court.

167    Mr Hamilton’s prosecution of the proceeding against the respondents in these circumstances, with the consequence that Group Members are bound by his conduct and their claims are extinguished by the resolution of this proceeding if allowed to continue, brings – or, at least, has the “real potential” to bring – the administration of justice into disrepute.

Mr Hamilton’s receipt of prohibited contingency fees

168    The second argument in support of the grant of a permanent stay is that by reason of his receipt of SUFB Tokens for non-financial contributions, Mr Hamilton is in effect receiving fees in the nature of prohibited contingency fees. The respondents submit that given Mr Hamilton is legally qualified and having regard to the nature of Mr Hamilton’s involvement in the proceeding, the absence of independent lawyers, the extent and timing of the issuance of SUFB Tokens to Mr Hamilton for non-financial contributions, the Court should infer that Mr Hamilton is receiving SUFB Tokens in reward for legal work he has done in connection with the proceeding, including in the lead up to the proceeding being filed. The respondents submit that if that be correct then Mr Hamilton is receiving in effect prohibited contingency fees. The respondents submit that this aspect of the arrangements constitutes an additional basis to stay the proceedings on the basis that it is a separate abuse of process or otherwise undermines the proper administration of justice.

169    Mr Hamilton expressly denied when addressing the Court that he was provided for SUFB Tokens in respect of legal work that he performed. Mr Hamilton submits that the SUFB Tokens awarded to him were for work done prior to filing the proceedings, which work he described as non-legal work, including in establishing a litigation funding company, creating websites, signing up class members, and seeking investments. Mr Hamilton was not cross-examined on his assertions made during his submissions.

170    Meta submits that the Court should infer that Mr Hamilton is receiving SUFB Tokens for legal work. Meta illustrates the point by reference to the timing of the original statement of claim, which was dated 13 August 2020. Meta submits that it can be inferred that the statement of claim was prepared by Mr Hamilton in the period from June to August 2020. Mr Hamilton received 15,000 tokens for work done in that period.

171    Mr Hamilton submits that the 15,000 SUFB Tokens that he received were for work he performed for JPB Liberty and for which he caused JPB Liberty to pay him in SUFB Tokens. Meta submits that if this be correct then it would be contrary to the terms of the LFA for three reasons. First, the LFA defines SUFB Tokens as tokens issued in order to fund the proceeding. Secondly, the purpose of the issuance on Mr Hamilton’s account is not aptly described as a non-financial contribution to the conduct of the proceeding but rather for work done for the Funder’s book build. Finally, the issuance appears to be contrary to cl 6.2 of the LFA which provides that the Funder will not seek reimbursement from any Funded Class Member for any internal overheads incurred as part of the litigation.

172    Given the manner in which the applications were conducted, and having regard to the seriousness of making a finding that Mr Hamilton as an admitted solicitor has engaged in conduct of the type alleged, I am not satisfied that it is appropriate to infer that Mr Hamilton is being rewarded for legal services by the issue of SUFB Tokens. It is equally possible that Mr Hamilton is being rewarded for non-legal services in the manner in which he asserts even though arguably that may be inconsistent with the LFA. Given that I have concluded that it is appropriate to permanently stay the proceeding because of the real potential for the continuance of the proceeding to bring the administration of justice into disrepute, it is not necessary to determine this alternative basis on which the respondents rely.

173    For completeness, although Mr Hamilton attacked the precedential value of the authorities on which the respondents relied in relation to the prohibition on the receipt of contingency fees, I accept that the proposition established in Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 at 203, remains good authority:

…[A solicitor] must not in any case bargain with his client for an interest in the subject-matter of litigation, or (what is in substance the same thing) for remuneration proportionate to the amount which may be recovered by his client in a proceeding…

It is consistent with the continuing legislative prohibition on contingency fees in all Australian jurisdictions other than Victoria: Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582 (Bolitho (No 4)) at [50] per Ferguson JA. The decision in Bolitho (No 4) predated the insertion of s 33ZDA of the Supreme Court Act 1986 (Vic) in 2020 which created an exception to the legislative prohibition in Victoria.

174    Although, I have concluded that I cannot infer on the material before me that, to date, Mr Hamilton has been issued SUFB Tokens as a reward for legal services, given the way in which the proceeding is being resourced and the manner in which Mr Hamilton is approaching his own risk/reward calculus through the issue of SUFB Tokens to himself and at his direction, the risk of that occurring in the future cannot be excluded.

Public interest considerations relevant to the grant of relief

175    Mr Hamilton submits that there is a public interest dimension to this proceeding arising from the private enforcement of Part IV of the CCA, “enhanced” by the proceeding being a representative proceeding and the private, civil enforcement of Division 1 of Part IV of the CCA being a preliminary step in the public enforcement of the criminal prohibitions on cartel conduct. Mr Hamilton submits that there is also public interest in the first judicial consideration of various provisions of the CCA and that for the proceeding to be stayed where the respondents have wielded “power, wealth and influence” in an “arbitrary and capricious” manners as alleged would bring “bring the system of justice into disrepute and undermine the rule of law”. Mr Hamilton cites Epic Games, Inc v Apple [2021] FCAFC 122: 286 FCR 105 (Middleton, Jagot and Moshinsky JJ) as an analogous case.

176    At paragraph [40] of Hamilton (Service Out) I noted that the Full Court in Epic held that Part IV claims necessarily have a public dimension and I accept that there is accordingly a degree of public interest in the claims the subject of this proceeding. I note for completeness that the stay the subject of consideration in Epic is distinguishable to the stay sought in this proceeding in two respects. First, the stay in Epic was a stay of the underlying substantive claim. That is not the case here where the stay applies to the representative proceeding and group members may continue to pursue their claims either individually or through a differently constituted representative proceeding. Secondly, the stay was granted by the trial judge in Epic because of an exclusive jurisdiction clause which covered the dispute. The relevance of the public interest consideration was that a stay may be refused where the foreign jurisdiction clause offends the public policy of the forum, whether that policy is evinced by statute or declared by judicial decision: Akai Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39; 188 CLR 418 at 445 (Toohey, Gaudron and Gummow JJ). In this proceeding, a stay is sought not because of an exclusive jurisdiction clause but rather because the proceeding itself may bring the administration of justice into disrepute.

177    I am satisfied that insofar as there is a public interest component to this proceeding, consideration of that factor does not outweigh the other factors I have identified that weigh in favour of a stay. Without being exhaustive, those factors include the following. First, that the grant of a permanent stay of the proceeding does not operate to preclude the prosecution of the underlying claims in separate proceedings, whether by way of a representative proceeding or as individual claims. Secondly, notwithstanding the public interest dimension to the proceeding, it remains the case that due to the potential for conflicts of interests between Mr Hamilton and Group Members, the continuation of the proceeding as constituted is likely to bring the administration of justice into disrepute. Thirdly, that risk is heightened in circumstances where Mr Hamilton is a litigant in person. Finally, the means by which Mr Hamilton has proposed that these conflicts be managed by dedicated and active judicial oversight, extending well beyond settlement approval and class closure determinations, are not consistent with the independence of the Court in fulfilling its judicial function.

178    Mr Hamilton also relies on the evidence of Mr Lange in resisting the relief sought in the applications on the basis of public interest considerations.

179    Mr Lange deposes to holding 30,000 SUFB Tokens in a Hive account called @israellycoolblog. Mr Lange is also the executive director of an Israeli registered not-for-profit (amuta) called Israellycool Israel Advocacy. Mr Lange deposes that on 16 November 2022 his personal and Israellycool’s Facebook pages were suspended without warning. Mr Lange selected an option which allowed him to disagree with the suspension. On 17 November 2022 the Israellycool Facebook page was published. On 19 November 2022 Mr Lange’s personal Facebook account became available again. Mr Lange deposes that as at the date of his affidavit, 20 November 2022, he remains unable to post to the Israellycool Facebook page.

180    Mr Hamilton submits that the suspension of Mr Lange’s personal account and the Israellycool Facebook page was not coincidental and was in effect retribution for Mr Lange’s support of this proceeding. Mr Hamilton submits that the suspension is relevant to the public interest which must be considered in determining whether the proceeding ought to be stayed.

181    I have considered Mr Lange’s affidavit and Mr Hamilton’s affidavit dated 20 November 2022. I am not satisfied on the evidence before me that the suspension of Mr Lange’s personal Facebook account and the Israellycool Facebook page was in response to Mr Lange’s support of this proceeding. To the contrary, in Mr Lange’s blog post annexed to his affidavit, Mr Lange states that he “highly suspects one of the antisemites I have exposed on the website reported the Israellycool Facebook page. This has happened to me a few times before…”.

182    In any event, for the reasons given at paragraph [177] above, I am not satisfied that the evidence relied on by Mr Hamilton in this respect weighs against my conclusion that the proceeding should be permanently stayed.

Conclusion - Stay of proceedings

183    I am satisfied that this proceeding should be stayed because it would otherwise bring the administration of justice into disrepute and undermine the integrity of the Court’s processes in relation to representative proceedings. In a representative proceeding, the administration of justice may be brought into disrepute where the manner in which it is conducted principally serves the interests of the representative applicant and the litigation funder and leaves the interests of group members inadequately protected. Such an arrangement is contrary to the scheme of Part IVA of the Act.

184    In Bolitho (No 4), the issue was whether senior counsel and the solicitor for the applicants should be restrained from acting in the proceeding in order to ensure the due administration of justice and protect the integrity of the judicial process in circumstances where the solicitor (through an indirect shareholding) and the senior counsel (though his spouse’s shareholding) had substantial interests in the litigation funder and therefore had a financial interest in the proceeding. Ferguson JA found that the solicitor’s multiple roles (as solicitor for the applicant and as director, secretary and shareholder of the litigation funder) increased the likelihood of conflicts and gave the appearance that his role as a solicitor and as an officer of the court was compromised: at [53]. While Bolitho (No 4) is not directly on point, the observations of Ferguson JA are apposite. In the present context, her Honour’s observations highlight the potential in a particular case for conflicted representation, where the representative has a substantial financial interest in the proceeds of the litigation, to tarnish the appearance of the due administration of justice.

185    As I have set out above, there is the very real potential for conflicts of interests to arise and influence Mr Hamilton’ conduct of the proceedings in ways that are to the detriment of Group Members. The conflicts set out above arise from the many and varied roles Mr Hamilton undertakes in and in relation to this proceeding and are not adequately addressed by the LFA, CMP or the undertakings Mr Hamilton has proffered to the Court. Were the conflicts to arise, there are real concerns about how Mr Hamilton would address them in circumstances where he frames his claim as being primary and those of Group Members as being secondary. Even with the best of intentions, the way in which the myriad of conflicts can manifest may be subtle and insidious. The protection of Group Members is not appropriately addressed by Court oversight, particularly in this proceeding where the Court is bereft of an independent solicitor, that is an officer of the Court, acting on record for the representative applicant. I accept that a permanent stay is regarded as a tool of last resort, however, I am satisfied that it is required in this proceeding.

186    I note that in Wilkinson, Colvin J required notice to be given of a declassing application sought by the respondent in circumstances where the applicant did not oppose the application but sought for group members to be notified that the proceedings would inter alia, not continue as a representative action. The purpose of the notice was to afford group members the opportunity to consider whether they wished to secure legal representation or appoint another representative applicant. The orders provided that if there were no objections from the group members who received the notice, the representative proceedings would be de-classed. Similarly, in Paschke v Secretary, Department of Social Services [2023] FCA 6 (Paschke PJ) (Colvin J) the representative applicant submitted that group members should be notified “before any decision was made to discontinue the case as a class action” citing Wilkinson. Colvin J found that notice was not appropriate where the representative applicant had not demonstrated a proper basis for his commencement of proceeding and where there was no other person proposed as a representative applicant and no indication that any other person wished to maintain the proceedings: Paschke PJ at paragraph [23]

187    In these applications, Mr Hamilton as the representative applicant did not agitate the issue of notice. Mr Hamilton in his submissions has made clear that he considers the absence of legal representation to be of benefit for Group Members, at least until after the determination of liability. Similarly, Mr Hamilton has not undertaken that he be replaced as a representative applicant or even indicated that there might be a willing alternative representative applicant who is acceptable to the Funder. In these circumstances, I do not consider there to be utility in directing that the stay be suspended to allow a notice to be given to Group Members. I will, however, order that Mr Hamilton give notice to Group Members and SUFB Token Holders of the orders which I have made in determining the present applications and provide a link to the reasons for judgment when they are published on the Court’s website.

De-classing order

188    As an alternative to a stay, the respondents submit that the Court should exercise its power under s 33N(1) of the Act to de-class the proceeding. As I am satisfied that it is appropriate to grant a permanent stay of the proceedings, it is not necessary to consider the alternative claim for relief.

Costs

189    The respondents seek the costs of their applications. The respondents have been successful in their applications and costs ordinarily follow the event. I do not see a basis for departing from this course. I will order accordingly. In doing so, I will reserve to the parties a window of opportunity to apply to vary the cost order if they wish to do so.

Conclusion

190    I am satisfied that to permit the proceedings to continue would bring the administration of justice into disrepute. Accordingly, I will order that the proceeding be permanently stayed.

Associate:

Dated:    29 September 2023