Federal Court of Australia

Riverine Grazier Pty Ltd v Google LLC [2025] FCA 895

ORDERS

THE COURT ORDERS THAT:

1. The applicants in proceeding VID164/2025 (Riverine proceeding) be granted leave to intervene in this proceeding for the purpose of the hearing and determination of their interlocutory application dated 4 April 2025 seeking orders that this proceeding be permanently stayed pursuant to ss 23 and/or 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) (the Riverine stay application).

2. Subject to order 3, this proceeding be permanently stayed pursuant to ss 23 and/or 33ZF of the FCA Act.

3. The applicants in this proceeding have liberty to apply to vary or set aside order 2 within 14 days after any amended statement of claim is filed in the Riverine proceeding in accordance with order 5 made on 6 August 2025 in the Riverine proceeding.

4. Subject to order 5, there be no order as to the costs of this proceeding.

5. By 20 August 2025, any of the parties and the Riverine applicants may apply to vary order 4 by filing and serving a written submission limited to 4 pages stating the form of order sought and the reasons why the order should be made.

6. If an application is made in accordance with order 5, by 27 August 2025 any person affected by the application may file and serve a written submission in reply limited to 4 pages.

7. Any application made in accordance with order 5 will be determined on the papers.

8. By 20 August 2025, any party seeking a suppression order in respect of evidence and submissions filed in this proceeding in connection with:

(a) the Riverine stay application; or

(b) the interlocutory application dated 4 April 2025 filed in the Riverine proceeding by the applicants in this proceeding seeking orders that the Riverine proceeding be permanently stayed pursuant to ss 23 and/or 33ZF of the FCA Act (the Q News stay application),

is to file and serve:

(c) the form of order sought identifying, in an annexure to the order, the parts of the evidence or submissions sought to be suppressed; and

(d) any further submission in support of the orders, limited to 4 pages.

9. Any application for a suppression order made in accordance with order 8 will be determined by the Court on the papers.

10. Within 14 days of the Court making a suppression order in response to an application made under order 8, the relevant party is to file a copy of the evidence or submissions, in respect of which the order has been made, redacted in accordance with the order.

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

THE COURT ORDERS THAT:

Stay applications

1. The applicants in proceeding VID1375/2024 (Q News proceeding) be granted leave to intervene in this proceeding for the purpose of the hearing and determination of their interlocutory application dated 4 April 2025 seeking orders that this proceeding be permanently stayed pursuant to ss 23 and/or 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) (the Q News stay application).

2. Subject to order 5, the Q News stay application be dismissed.

3. Pursuant to r 1.33 of the Federal Court Rules 2011 (Cth), order 2 is made subject to the condition that the applicants’ lawyers, Maurice Blackburn Lawyers and Phi Finney McDonald, conduct the proceeding in accordance with the Cooperative Litigation Protocol annexed to the Agency Retainer Agreement dated 19 March 2025 (Cooperative Litigation Protocol).

4. The applicants file and serve any amended statement of claim by 3 October 2025.

5. The applicants in the Q News proceeding have liberty to apply to vary or set aside order 2 within 14 days after any amended statement of claim is filed in accordance with order 4.

6. The costs of the parties to this proceeding in respect of:

(a) the Q News stay application; and

(b) the interlocutory application dated 4 April 2025 filed in the Q News proceeding by the applicants to this proceeding seeking orders that the Q News proceeding be permanently stayed pursuant to ss 23 and/or 33ZF of the FCA Act (the Riverine stay application),

be costs in the cause in this proceeding.

7. By 20 August 2025, any party seeking a suppression order in respect of evidence and submissions filed in this proceeding in connection with the stay applications referred to in order 6 is to file and serve:

(a) the form of order sought identifying, in an annexure to the order, the parts of the evidence or submissions sought to be suppressed; and

(b) any further submission in support of the orders, limited to 4 pages.

8. Any application for a suppression order made in accordance with order 7 will be determined by the Court on the papers.

9. Within 14 days of the Court making a suppression order in response to an application made under order 7, the relevant party is to file a copy of the evidence or submissions, in respect of which the order has been made, redacted in accordance with the order.

Certain costs not recoverable

10. Subject to further order, the following categories of costs will not be recoverable against the respondents or from the proceeds of any award or settlement in favour of group members:

(a) the costs incurred by the applicants’ lawyers in connection with the work of the Litigation Committee, as defined in the Cooperative Litigation Protocol (Litigation Committee Costs);

(b) the costs of any other work performed by the applicants’ lawyers that are  identified by the Costs Referee (appointed pursuant to order 11) and/or the Court as costs relating to work that has been performed by reason of there being two firms conducting the proceeding on behalf of the applicants, and where such work would not have needed to be performed if there was only one firm conducting the proceeding (Unnecessary Costs); and

(c) the fees of the Costs Referee appointed pursuant to order 11.

11. Pursuant to ss 33ZF and 54A of the FCA Act, an independent costs referee (Costs Referee) be appointed for the purpose of:

(a) conducting an inquiry every six months (commencing from the date of the making of these orders) as to:

(i) the quantum of Litigation Committee Costs incurred during the six month period; and

(ii) whether Unnecessary Costs have been incurred and, if so, the quantum of such costs; and

(b) providing a confidential written report to the Court and to the applicants’ lawyers every six months (commencing from the date of the making of these orders) stating the Costs Referee’s opinion on the matters set out in paragraph (a) above.

12. Within 14 days of the date of these orders, the applicants are to identify a suitable candidate to carry out the role of Costs Referee, provide the candidate’s curriculum vitae to the Court and seek orders from the Court for that candidate’s appointment.

13. The applicants’ lawyers must provide such information, access to personnel and access to documents as the Costs Referee requires.

Defences

14. Each of the respondents file and serve their defence by 7 November 2025.

Further case management

15. The proceeding be listed for further case management at 9.30 am on 14 November 2025.

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

REASONS FOR JUDGMENT

O’BRYAN J:

A.    Introduction

Competing class actions

1 Two representative proceedings have been commenced in this Court on behalf of online publishers against a number of entities within the Google group of companies (the parent company of which is Alphabet Inc). In these reasons, the Google respondents are referred to collectively as ‘Google’ unless there is a reason to differentiate between them.

2 Online publishers are businesses that publish audio, visual or audio-visual content online, whether through a website or through a software application (app) on a mobile phone or tablet device. Online publishers are able to earn revenue from advertisers wishing to display advertisements to consumers of the publishers’ content (who are often referred to as ‘users’ of the website or app). The ‘slots’ or ‘spaces’ in which advertisements are able to be displayed in an online publication are typically referred to as ‘inventory’ or ‘ad inventory’, and the display of an advertisement in a slot or space to an individual user who views the online page where the advertisement is displayed is typically referred to as an ‘impression’ or ‘ad impression’. Advertisements displayed in online publications in this manner are referred to as ‘display advertising’. Display advertising is valued by advertisers because, based on information provided by publishers or intermediaries about the individual viewing the online page (for example, the individual’s location, demographic characteristics or interests), advertisers are able to target their advertisements to such individuals.

3 Online publishers sell ad impressions for display advertising to advertisers either directly (using the publisher’s own in-house systems or platforms, and which is referred to as a ‘closed’ channel) or indirectly (using services provided by third party intermediaries, and which is referred to as an ‘open’ channel). The sale of ad impressions through open channels enables advertisers to access impressions from many publishers simultaneously and involves automated processes of buying and selling ad impressions and the delivery of display advertising. In the open channel, display advertising may be sold through direct deals, being bilateral agreements struck between publishers and advertisers, or through ‘programmatic sales’, in which providers of intermediation services automate processes of buying, selling and delivering impressions in the very short interval (fraction of a second) between the time a user ‘clicks’ to open an online page and the moment the page opens (with the display advertisement).

4 Both representative proceedings concern alleged unlawful conduct of Google in connection with programmatic sales by online publishers of ad impressions for open display advertising. It is alleged that Google supplies a range of technology-related intermediation services to online publishers in connection with programmatic sales of ad impressions (which are referred to collectively as ‘ad-tech services’) and that Google has a substantial degree of market power in the markets in which they supply ad-tech services. It is alleged that, in the course of supplying ad-tech services, Google has engaged in anti-competitive conduct prohibited under Pt IV of the Competition and Consumer Act 2010 (Cth) (CCA) and unconscionable conduct prohibited under Pt 2-2 of the Australian Consumer Law (being Sch 2 to the CCA) (ACL).

5 The first of the proceedings (VID1375/2024) was commenced by Q News Pty Ltd and Sydney Times Media Pty Ltd (together, the Q News applicants) on 16 December 2024 (Q News proceeding). The Q News applicants are represented by Piper Alderman. The Q News proceeding has been brought against Google LLC, Google Asia Pacific Pte Ltd and Google Australia Pty Ltd. The Q News applicants allege that, during the period from 16 December 2018 to 16 December 2024, Google engaged in conduct in contravention of s 46 of the CCA (misuse of market power).

6 The second of the proceedings (VID164/2025) was commenced by Riverine Grazier Pty Ltd and Mornington Peninsula News Group Pty Ltd as trustee for the McCullough Family Trust (together, the Riverine applicants) on 14 February 2025 (Riverine proceeding). The Riverine proceeding has been brought against the same Google companies as are respondents to the Q News proceeding, but the Riverine proceeding also names the Google parent company, Alphabet Inc, as a respondent. The Riverine applicants are represented by Maurice Blackburn Lawyers (MBL). Phi Finney McDonald (PFM) has been appointed to act as MBL’s agent pursuant to an Agency Retainer Agreement that annexes a document titled Google AdTech Class Action Cooperative Litigation Protocol dated 19 March 2025 (Cooperative Litigation Protocol). The Riverine applicants allege that, during the period which dates back to at least 2009 and continuing to the present day, Google engaged in conduct in contravention of s 46 of the CCA (misuse of market power). The Riverine applicants also allege that certain aspects of the conduct that infringed s 46 also contravened s 47 of the CCA (exclusive dealing) and s 21 of the ACL (unconscionable conduct).

7 Each of the proceedings is an “open class” representative proceeding, and each proceeding raises similar allegations against Google. As such, the proceedings can be described as “competing class actions” as that phrase is used in the Federal Court’s Class Actions Practice Note. As discussed below, however, there is a material difference in the respective descriptions of group members (and therefore the persons whose claims are represented in the proceeding) and there are material differences in the claims made.

8 As the High Court confirmed in Wigmans v AMP Ltd (2021) 270 CLR 632 (Wigmans) at [106] (Gageler, Gordon and Edelman JJ), multiplicity of proceedings raising the same issues is not to be encouraged and competing representative proceedings run by different firms of solicitors, with different funders, may in principle be inimical to the administration of justice. The disbenefits include the duplication of costs for all parties and the Court in conducting multiple proceedings in respect of the same issues and the burden imposed on the respondent in having to respond to each of the proceedings. Multiplicity may be addressed in a number of ways, including by: consolidating the relevant proceedings; de-classing one or more of the proceedings; holding a joint trial of all proceedings with each left constituted as open class proceedings; staying one or more of the proceedings; or closing the classes in one or more of the proceedings but leaving one of the proceedings as an open class proceeding, with a joint trial of all.

Interlocutory applications for a stay

9 Each of the Q News applicants and the Riverine applicants have filed an interlocutory application seeking leave to intervene in the other proceeding and a permanent stay of the other proceeding. Each stay application is made pursuant to ss 23 and/or 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

10 The Court’s power to stay a representative proceeding in the interests of justice is conferred by s 23 of the FCA Act which implicitly confers power to make orders of the kinds available at common law and in equity: see generally Perera v GetSwift Ltd (2018) 263 FCR 92 (Perera) at [121]-[134]; cf Wigmans at [72], [92], [94] and [99]-[104] (in respect of the powers of the Supreme Court of New South Wales). In Wigmans, the High Court identified four matters relevant to the exercise of power to grant a stay of competing representative proceedings. Those matters are (at [105]–[109]):

(a) First, that multiplicity of proceedings is not to be encouraged and that competing representative proceedings run by different firms of solicitors, with different funders, may in principle be inimical to the administration of justice.

(b) Second, while a first-in-time rule or presumption has never been favoured as a means of resolving which of the competing proceedings should proceed, the order of filing has been and remains a relevant consideration, although less relevant where the competing proceedings have been commenced within a short time of each other.

(c) Third, the relevant point in time to determine the question is not limited to the time of filing the proceeding and may, and often will, extend to facts and matters arising after filing. The actions (or inaction) of group members and, more generally, the degree of expedition with which the respective parties have approached the proceeding, including the degree to which they have been timely in their interlocutory activities, are likely to be relevant.

(d) Fourth, the factors that might be relevant cannot be exhaustively listed and will vary from case to case. In matters involving competing open class representative proceedings with several firms of solicitors and different funding models, it is necessary for the court to determine, by reference to all relevant considerations, which proceeding going ahead would be in the best interests of group members.

11 On 20 March 2025, orders were made in both proceedings timetabling the proceedings to a joint hearing (the multiplicity hearing) to determine the manner in which one or both of the proceedings would be permitted to be conducted, having regard to the overarching purpose of civil practice and procedure as defined in Pt VB of the FCA Act. The orders contained a list of issues that were to be addressed by the parties at the multiplicity hearing. The issues were stated as follows:

1. Carriage

1.1    The position adopted by the Applicants in respect of carriage, including any proposal to:

(a)    stay one or more proceedings;

(b)    consolidate one or more proceedings (and if so, the proposal for legal representation of the consolidated proceeding); or

(c)    leave open more than one proceeding.

2. Practitioners

2.1    The experience of the practitioners representing the Applicants in this proceeding.

2.2    The resources made available by the firm of solicitors, and their accessibility to clients.

3. Nature and scope of the causes of action advanced (and relevant case theories)

3.1    Extent of overlap between the proceedings.

3.2    Material differences and unique features of the proceeding (i.e. identification of areas where the proceeding does not overlap with the competing proceedings).

4. Group Membership

4.1    Size and composition of the group.

5. Funding and legal costs

5.1    The proposed funding arrangements, including funding terms and conditions and percentages.

5.2    Cost estimates and comparative costs modelling.

5.3    The sufficiency of the resources of the entity who will fund the proceeding, to fund it in accordance with the proposed funding model and estimated costs.

5.4    Net hypothetical return to group members.

6. Proposals for security

6.1    Proposal for security for costs, including who is to provide security for costs (i.e. a litigation funder), the proposed amount, the proposed form of security, and relevant material particulars of any expected “after the event” insurance policy.

6.2    The litigation funder or firm of solicitors’ resources to meet any adverse costs order.

7. Extent of any book build

7.1    The number of group members signed up to the proceeding.

8. The state of preparation of the proceedings

8.1    Conduct of the representative Applicants in the proceeding to date.

8.2    The degree of expedition with which the Applicants have approached the proceedings.

8.3    Order of filing.

9. Other factors

9.1    Any other factor that the Applicants expect might be material to the resolution of the multiplicity issue that is not covered by points 1 to 8 above.

Evidence adduced on the applications

12 At the multiplicity hearing, the Q News applicants read the following affidavits:

(a) three affidavits of Gregory John Whyte, a partner of Piper Alderman and the solicitor with day-to-day carriage of the Q News proceeding, sworn on 29 April 2025, 13 May 2025 and 30 May 2025;

(b) three affidavits of Charles Samuel Morris, the Chief Investment Officer and a Director of Woodsford Group Limited (Woodsford), the litigation funder engaged by the Q News applicants, sworn on 28 April 2025, 12 May 2025 and 16 May 2025; and

(c) an affidavit of Mark Spiteri, the Finance and Commercial Director of Woodsford, sworn on 12 May 2025.

13 The Riverine applicants read the following affidavits:

(a) two affidavits of Kimi Nishimura, a Principal Lawyer and Director of MBL and the solicitor on the record for the Riverine applicants, affirmed on 29 April 2025 and 13 May 2025; and

(b) an affidavit of Michael Donelly, a Principal Lawyer of MBL with responsibility, together with Ms Nishimura, for the Riverine proceeding on behalf of the Riverine applicants, affirmed on 20 May 2025.

14 Mr Whyte’s 29 April 2025 affidavit exhibited four judgments (and associated reports) in respect of proceedings brought in overseas jurisdictions against Google regarding its ad-tech services, being:

(a) a decision of the French Competition Authority made on 7 June 2021;

(b) a United States District Court memorandum of opinion concerning an interim ruling on liability given on 17 April 2025;

(c) a United States District Court memorandum of opinion given on 14 March 2023; and

(d) a United States District Court opinion given on 13 September 2022.

15 There are also certain paragraphs within the affidavits relied on by both the Q News applicants and the Riverine applicants that refer to those judgments. Google sought an order under s 136 of the Evidence Act 1995 (Cth) limiting the use of the decisions and reports, and the affidavit material referring to them, to use for the purposes of determining carriage on the present applications and in that respect only as evidence of what those decisions and reports say, rather than as proof of any facts that were found in those decisions and reports. There was no objection to the form of order sought and I made the order in both proceedings on 11 June 2025.

Applications for confidentiality orders

16 Each of the Q News and Riverine applicants sought orders pursuant to ss 37AF(1) and 37AG(1)(a) of the FCA Act restricting the publication or other disclosure of parts of the evidence adduced in support of their respective stay applications and the written submissions filed in support of their respective applications. Disclosure was permitted to each of the Q News applicants, the Riverine applicants, their legal representatives and their funders. In general terms, the Q News and Riverine applicants sought to restrict disclosure to Google of those parts of the evidence that revealed their legal strategy in the proceedings or would otherwise confer an unfair advantage on Google in the conduct of the proceedings.

17 Parts of the evidence for which non-publication orders were sought concerned estimates and modelling of legal costs and potential outcomes in the proceedings, assessments of the material strengths and risks of the claims made in the proceedings and discussion of litigation strategy. It is appropriate that non-publication orders be made in respect of that material. However, the applicants in both proceedings also sought to restrict publication of material that I consider is already discernible on their respective pleadings or documents that have been filed. For example, the Q News applicants sought to restrict publication of the identity of their litigation funder in circumstances where a representative of the funder made three affidavits for the purpose of the present application (as set out above).

18 The Court has frequently commented upon the excessive claims for confidentiality made by parties in representative proceedings. The present case is another example. Section 37AE of the FCA Act stipulates that, in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. In recognition of the importance of the principle of open justice, the grounds upon which the Court may make a suppression or non-publication order under s 37AG are very limited. In the context of class actions, the principal ground is that the order is necessary to prevent prejudice to the proper administration of justice. The threshold is high. The Court does not supress evidence adduced and submissions made at a hearing merely because the parties do not wish their private information to be disclosed.

19 In the context of multiplicity disputes, it is necessary for the Court to consider and compare the professional fees proposed to be charged by the lawyers retained, the funding commissions and relevant terms and conditions offered by any litigation funder, the willingness to offer security for the costs of the respondent and the form of any proposed security for costs, and the capacity of the lawyers retained and any litigation funder to finance the proceeding to completion and provide security for costs. The Court’s consideration of such matters, and reasons for determining that one proceeding and not another should proceed, are of the utmost importance to group members of both proceedings. Applicants in representative proceedings, and their legal advisers and funders, should expect that the Court will refer to such matters openly during a multiplicity hearing and in the Court’s reasons for judgment. The making of unreasonable confidentiality claims over such material is a waste of the Court’s time.

20 At the hearing, I requested the parties to narrow their claims for confidentiality. In response to that request, on 25 June 2025 the parties provided the Court with a joint court book with narrowed claims for confidentiality. The revised court book was not in a form that could be assessed by the Court. It did not highlight material proposed to be suppressed (so that the Court could consider the application), but redacted it (so that the Court could not consider it without tracing back through earlier versions of documents). Even a cursory glance at the redactions indicates that the parties are continuing to seek orders for suppression that cannot be justified. For example, the Q News applicants seeks the suppression of the fact that the Riverine proceeding was commenced two months after the commencement of the Q News proceeding, as well as the accompanying submission that, as a consequence, group members in the Riverine proceeding will be unable to recover damages as far back in time as the group members in the Q News proceeding. The fact of the commencement dates of the proceedings is public and there is no possible justification for suppressing the accompanying submission.

21 These reasons refer to facts and submissions that I consider to be necessary for the purposes of explaining the decision of the Court and for which a suppression order is not justified. As discussed at the conclusion of these reasons, the parties will be given a further opportunity to apply for confidentiality orders in respect of evidence and submissions for which an order is necessary to prevent prejudice to the administration of justice. Any application that is unreasonable will be dismissed.

Determination of the interlocutory applications

22 As observed by the Full Court in Perera at [274], there is no one right answer to the case management questions that arise when dealing with competing class actions. There is no set weighting to be attributed to the different factors that are relevant to the question whether it is in the interests of justice for one of the proceedings to be stayed, and every case presents its own specific issues.

23 For the reasons that follow, I consider that it is in the interests of justice to stay the Q News proceeding and permit the claims against Google to be litigated on behalf of group members through the Riverine proceeding. However, that conclusion is subject to a number of conditions that are discussed later in these reasons and reflected in the orders to be made on the stay applications.

B.     The group members and the claims made in the proceedings

Preliminary observations

24 This section of the reasons considers the common and the distinctive features of each of the proceedings. Although the two proceedings have only recently been commenced, and pleadings can be amended as a proceeding progresses, the initial forms of the respective pleadings define the cases that have been brought by the Q News applicants and Riverine applicants respectively, and the group members on whose behalf the proceedings have been brought, and reveal significant differences in the approach taken to the claims being made against Google. Those matters have a material bearing on the decision whether or not to stay one of the proceedings.

25 As a preliminary observation, the pleading of the impugned conduct in each of the proceedings is lengthy and complex. The pleadings trace the development of business practices associated with the supply of ad-tech services from 2009 to the present day. Neither the services supplied nor the impugned business practices are familiar to the untutored reader, with the result that considerable effort must be made to comprehend the allegations.

26 Although it was common ground between the parties that the two proceedings address similar issues and are ‘competing class actions’ as that phrase is used in the Federal Court’s Class Actions Practice Note, and the applicants in each proceeding seek an order for the stay of the other proceeding, when analysed there are significant differences between the proceedings. During the multiplicity hearing, the Court received only limited assistance from the parties in tracking all of the differences. More time could have been devoted to that issue by the parties, as it is a significant issue in the present dispute. By way of overview, the allegations made in the Riverine proceeding are considerably more extensive than those made in the Q News proceeding, and the Riverine proceeding raises a significant number of additional claims in comparison to the Q News proceeding. A relevant question is whether or not the allegations made in the Q News proceeding are wholly subsumed within the Riverine proceeding.

27 It goes without saying that, at this stage of both proceedings, the capacity of the Court to assess the strength of the claims made is limited.

The territorial reach of Australian competition and consumer laws

28 One of the significant differences between the proceedings concerns the manner in which the alleged unlawful conduct has been described, to bring the claims within the territorial reach of the relevant Australian competition and consumer laws. For that reason, it is appropriate to commence with an overview of the territorial reach of the Australian competition and consumer law prohibitions that are the basis for the claims made in the proceedings.

29 There are three relevant territorial limitations within the CCA and the ACL. The first limitation applies to both the applicable competition law and consumer law prohibitions and concerns the location of the impugned conduct. That limitation is addressed in s 5 of the CCA. The second limitation applies to the applicable competition law prohibitions (misuse of market power and exclusive dealing) and concerns the location of the competition which is alleged to be adversely affected by the impugned conduct. That limitation is incorporated as part of the definition of the relevant statutory prohibitions against misuse of market power and exclusive dealing in ss 46 and 47 of the CCA. The third limitation applies to the applicable consumer law prohibition (unconscionable conduct) and concerns the question whether the impugned conduct has been undertaken in trade or commerce as defined in the ACL. That limitation is incorporated as part of the definition of the statutory prohibition against unconscionable conduct in s 21 of the ACL.

30 As to the first territorial limitation, which concerns the location of the impugned conduct, s 5(1) relevantly provides that the provisions of Pt IV (which include ss 46 and 47) and the provisions of the ACL (which include s 21) extend to engaging in conduct outside Australia by, relevantly, bodies corporate incorporated or carrying on business within Australia. Section 5(2) further provides that, relevantly, s 47 extends to the engaging in conduct outside Australia by any persons in relation to the supply by those persons of goods or services to persons within Australia.

31 Thus, in so far as the conduct of Google which is impugned in the proceedings was engaged in outside Australia, it will be necessary for the applicants to establish:

(a) that the overseas incorporated Google respondents companies carry on business within Australia; or

(b) in the alternative in respect of the allegations made under s 47, that the impugned conduct related to the supply by Google of services to persons within Australia.

32 As to the second limitation, the Q News proceeding brings claims under s 46 (misuse of market power) of the CCA, while the Riverine proceeding brings claims under both ss 46 and 47 (exclusive dealing) of the CCA.

33 Relevantly, s 46(1) provides as follows:

A corporation that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in:

(a)     that market; or

(b)     any other market in which that corporation, or a body corporate that is related to that corporation:

(i)     supplies goods or services, or is likely to supply goods or services; or

(ii)     supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or

(c)     any other market in which that corporation, or a body corporate that is related to that corporation:

(i)     acquires goods or services, or is likely to acquire goods or services; or

(ii)     acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.

34 Section 47(1) prohibits various forms of exclusive dealing in relation to the supply or acquisition of goods or services. However, s 47(10) stipulates that the prohibition does not apply unless the conduct that constitutes the exclusive dealing has the purpose, or has or is likely to have the effect, of substantially lessening competition. Relevantly, s 47(13)(b) provides that a reference to competition is to be read as a reference to competition in any market in which:

(a) the corporation engaging in the conduct or any body corporate related to that corporation; or

(b) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a body corporate, any body corporate related to that body corporate,

supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or be likely to supply or acquire, goods or services.

35 The word ‘market’ is defined in s 4E as follows:

For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first‑mentioned goods or services.

36 The word ‘competition’ is defined in s 4 as follows:

competition includes:

(a)     competition from goods that are, or are capable of being, imported into Australia; and

(b)     competition from services that are rendered, or are capable of being rendered, in Australia by persons not resident or not carrying on business in Australia.

37 It can be seen from the foregoing provisions that the relevant competition law prohibitions require proof that the impugned conduct has the purpose or likely effect of substantially lessening competition in a market in Australia. In the context of markets for the supply or acquisition of services, competition includes competition from services that are rendered, or are capable of being rendered, in Australia by persons not resident or not carrying on business in Australia.

38 The meaning of the phrase ‘market in Australia’ was considered by the High Court in Air New Zealand Ltd v Australian Competition and Consumer Commission (2017) 262 CLR 207 (Air New Zealand). The High Court confirmed that the word ‘market’, within the CCA, is to be understood as the area of close competition between firms for the supply or acquisition of goods or services. The plurality (Kiefel CJ, Bell and Keane JJ) referred (at [12]) with approval to the following description given by Dawson J in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 at 199:

A market is an area in which the exchange of goods or services between buyer and seller is negotiated. It is sometimes referred to as the sphere within which price is determined and that serves to focus attention upon the way in which the market facilitates exchange by employing price as the mechanism to reconcile competing demands for resources.

and (at [13]) to the following description given by McHugh J in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374 at [252]:

[T]he market is the area of actual and potential, and not purely theoretical, interaction between producers and consumers where given the right incentive … substitution will occur. That is to say, either producers will produce another similar product or consumers will purchase an alternative but similar product.

39 The plurality continued (at [14], footnotes omitted):

Section 4E of the TPA proceeds upon the express footing that, notwithstanding the abstract nature of the concept of a market, it is possible to locate the market where the competition protected by the TPA occurs in Australia. Reconciling the abstract notion of a market with the concrete notion of location, so that they work coherently, presents something of a challenge. Particularly is this so because “competition” describes a process rather than a situation. But given that the TPA regulates the conduct of commerce, it is tolerably clear that the task of attributing to the abstract concept of a market a geographical location in Australia is to be approached as a practical matter of business. It is important that any analysis of the competitive processes involved in the supply of a service is not divorced from the commercial context of the conduct in question.

40 Thus, under the second territorial limitation, it will be necessary for the applicants to establish that the conduct of Google which is impugned as anti-competitive has the purpose or likely effect of substantially lessening competition in one or more markets in Australia.

41 The third territorial limitation applies to the allegation, made in the Riverine proceeding only, that Google has engaged in unconscionable conduct in contravention of s 21 of the ACL. Section 21 provides as follows:

A person must not, in trade or commerce, in connection with:

(a)     the supply or possible supply of goods or services to a person; or

(b)     the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

42 The phrase ‘trade or commerce’ is defined in s 2 of the ACL as follows:

trade or commerce means:

(a)     trade or commerce within Australia; or

(b)     between Australia and places outside Australia;

and includes any business or professional activity (whether or not carried on for profit).

43 Thus, under the third territorial limitation, it will be necessary for the Riverine applicants to establish that the conduct of Google which is impugned as unconscionable is conduct in trade or commerce within Australia or between Australia and places outside Australia.

Description of group members

44 The Q News proceeding is brought on behalf of all persons who (relevantly) at any time during the period from 16 December 2018 to 16 December 2024 (the date on which the proceeding was commenced):

(a) was an online publisher domiciled in Australia;

(b) sold open display advertising using ad tech services; and

(c) allegedly suffered loss and damage by reason of the conduct of Google pleaded in the statement of claim.

45 It can be seen that group membership in the Q News proceeding is limited to online publishers domiciled in Australia.

46 The Riverine proceeding is brought on behalf of a different group of publishers, being all persons who at any time during the period from 14 February 2019 to 14 February 2025 (the date on which the proceeding was commenced):

(a) sold impressions for the placement of display advertising through open channels (whether by direct deals or programmatic sales) to consumers of online publications who were physically located or ordinarily resident in Australia;

(b) acquired ad-tech services; and

(c) suffered loss or damage by reason of the conduct of Google as pleaded in the statement of claim.

47 It can be seen that group membership in the Riverine proceeding is limited to online publishers who (relevantly) sold (to advertisers) impressions for the display of advertisements to consumers of online publications who were physically located or ordinarily resident in Australia. Thus, the group members represented by the Riverine proceeding include online publishers wherever they are located (in Australia or overseas) provided that, at any time in the six year period prior to the commencement of the proceeding, they sold an impression for the display of an advertisement to a user who was physically located or ordinarily resident in Australia.

48 It can be readily concluded that the group members represented by the Q News proceeding are also group members in the Riverine proceeding. That is because it must be a certainty (or very near certainty) that an online publisher domiciled in Australia who has sold open display advertising using ad tech services will have done so in respect of advertisements displayed to consumers who were physically located or ordinarily resident in Australia. Conversely, there will be group members represented by the Riverine proceeding who are not group members in the Q News proceeding.

49 It is important to emphasise that the description of group members does not, in and of itself, constrain the territorial scope of the claims made on behalf of the group members. It merely identifies the persons on whose behalf the claims are brought. It remains necessary for the claims made in the proceeding to conform to the territorial limitations of Australian competition and consumer law.

The Google respondent companies

50 The Q News applicants have brought proceedings against Google LLC, Google Asia Pacific Pte Ltd and Google Australia Pty Ltd. The Riverine applicants have brought proceedings against those Google companies as well as the Google parent company, Alphabet Inc.

51 Google Australia Pty Ltd is incorporated in Australia, thereby satisfying the territorial requirement in s 5(1)(g) of the CCA. All of the other Google respondents are incorporated overseas. In respect of those respondents, the applicants in both proceedings allege that each of the overseas incorporated Google respondents carry on business in Australia which, if proved, will also satisfy the territorial requirement in s 5(1)(g).

52 Significantly, the Riverine proceeding contains a further or alternative allegation that each of Alphabet Inc, Google LLC and Google Asia Pacific Pte Ltd carry on business in Australia by and/or through Google Australia Pty Ltd, invoking the principles considered in Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 and Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304; 332 ALR 396.

53 In both proceedings, the Google respondent companies are referred to collectively as ‘Google’ and the allegations of contravention of Australian competition and consumer laws are made against Google collectively and without differentiation.

54 The Riverine proceeding makes additional allegations of accessorial liability. Relevantly, the Riverine applicants allege that each of Google Asia Pacific Pte Ltd and Google Australia Pty Ltd were knowingly involved in Google LLC’s contraventions.

55 The basis upon which the Riverine applicants allege that Alphabet Inc engaged in the impugned conduct is not clear from the pleading. There is no allegation that Alphabet Inc supplied any of the ad-tech services that are the subject of the allegations (it is alleged that those services were designed by Google LLC and supplied by Google Asia Pacific Pte Ltd). Nor is it alleged that Alphabet Inc was knowingly involved in, for example, Google LLC’s contraventions.

Ad-tech services

56 Both of the proceedings principally concern five types of ad-tech services supplied by Google and others in connection with the sale by online publishers, and the purchase by advertisers, of ad impressions for open display advertising. The description of each of the services varies to some extent between the proceedings, but it is clear that each proceeding is describing essentially the same types of services.

57 The first service involves the supply to publishers of computer servers and associated services to organise and manage the publisher’s ad inventory (referred to as ‘publisher ad servers’). The associated services typically provided include managing and organising the publisher’s ad inventory available for sale to advertisers, requesting bids for impressions from supply side platforms, demand side platforms and ad networks (all described below), deciding which advertisement will be displayed, serving the selected advertisement for display, and collecting, analysing and reporting on data to allow the publisher to better understand advertiser demand for its ad inventory. Publishers typically pay a price for publisher ad servers calculated as an amount per impression served. Google provides publisher ad server services under business names including ‘Google Doubleclick for Publishers’ (DFP) and ‘Google Ad Manager’.

58 The second service involves the supply to publishers of computer platforms referred to as ‘supply side platforms’ (sometimes referred to as ‘ad exchanges’) which automate the sale of ad impressions. The services typically provided by supply side platforms include running ‘real time’ auctions between demand side platforms (described below) in response to bid requests received from publisher ad servers and providing publishers with information about the performance of their inventory. Publishers typically pay a price for supply side platforms calculated as a commission percentage of the clearing price of the auctions run by the supply side platform. Google provides supply side platform services under the business name ‘Google Ad Exchange’ or ‘AdX’.

59 The third service involves the supply to advertisers of computer platforms referred to as ‘demand side platforms’ which automate the purchase of ad impressions. The services typically provided by demand side platforms include making buying and bidding decisions for the advertiser in response to bid requests from supply side platforms, assisting advertisers to target their advertisements to specific audiences in ‘real time’, and collecting, analysing and reporting on the performance of the advertiser’s advertising campaigns. Advertisers typically pay a price for demand side platforms calculated as a commission percentage of the amount spent through the demand side platform on impressions. Google provides demand side platform services under the business names ‘Display & Video 360’ (DV360) and ‘Google Ads’.

60 The fourth service involves the supply to advertisers of computer servers and associated services to manage their advertisements and host the videos or images for their advertisements referred to as ‘advertiser ad servers’. The associated services typically provided include managing, tracking and verifying the delivery of display advertising in online publications. Google provides advertiser ad server services under the business names ‘Google Campaign Manager’ and ‘Google Ads’.

61 The fifth service involves the purchase of impressions from publishers by the intermediary for sale to advertisers and are referred to as ‘ad networks’. Ad networks are generally used by small publishers who do not meet the minimum inventory requirements to sell impressions through supply side platforms. Publishers typically pay a price for ad network services calculated as a commission percentage of the amount earned by a publisher through the ad network. Google provides ad network services under the business names ‘AdSense’ (for the sale of impressions viewed through web browsers) and ‘AdMob’ (for the sale of impressions viewed through apps).

62 As is apparent from the above descriptions, the different levels of the ad-tech ‘supply chain’ are interconnected, with services at one level needing to inter-operate with services at other levels. Some businesses operate at multiple levels. Google operates at each level.

Markets for the supply of ad-tech services

63 In both proceedings it is alleged that there is a separate market for the supply of each of the five categories of ad-tech services and that Google has a substantial degree of power in each market.

64 In each of the proceedings, the ad-tech markets, in which it is alleged that the impugned conduct of Google had the purpose or effect of substantially lessening competition, are sought to be confined to markets in Australia. However, the manner in which this is done differs between the proceedings.

Market definition in the Q News proceeding

65 The pleading in the Q News proceeding lacks clarity on this issue. This can be illustrated by the allegations concerning the publisher ad server market, which are as follows:

97.     At all relevant times, in the circumstances described in paragraphs 26 to 29 above, there was a market for the purposes of section 46 of the CCA for the supply of services to Publishers for Publisher Ad Servers (Publisher Ad Server Market).

98.     The Publisher Ad Server Market is a market in Australia for the purposes of section 4E of the CCA in that:

(a)     its geographic market is limited to Australia; or

(b)     Australia forms part of a wider geographic market,

(Australian Publisher Ad Server Market).

66 The allegation in para 97, which references the allegations in paras 26 to 29, does not refer to any fact or circumstance that connects (or limits) the supply of publisher ad server services to Australia. This may be an oversight. It is possible that the Q News applicants intended to confine the defined term ‘Publisher’ to publishers domiciled in Australia (recognising that the description of group members in para 3 is confined in that manner). If that is the intention, it is not reflected in the pleading (as para 17 contains no such limitation).

67 The consequence is that the allegation in para 98 is in one respect wrong and in another respect wholly unclear. The allegation in para 98(a) that the publisher ad server market (as defined in the pleading) is a market in Australia because its geographic market is limited to Australia is wrong. No such limitation has been pleaded. The allegation in para 98(b) that the publisher ad server market (as defined in the pleading) is a market in Australia because Australia forms part of a wider geographic market is unclear. It is uncontroversial that a market in Australia does not cease to be so located because the market encompasses other places as well (see Air New Zealand at [15] per Kiefel CJ, Bell and Keane JJ). However, what is lacking from the pleading is any articulation of the facts and circumstances that define when a publisher ad server service is supplied in a market in Australia. Is it, for example, when the service is supplied to a publisher domiciled (or carrying on business) in Australia? Or is it when the service is supplied in connection with the display of advertising in Australia (including where the publisher is domiciled or carries on business outside Australia but the publisher’s online content, including advertisements, are viewed in Australia)?

68 Unfortunately, this central issue is not clarified by other allegations made in the Q News pleading. In particular, paras 46 to 48 refer to the supply of publisher ad server services to publishers in Australia. That allegation may describe the supply of such services to publishers incorporated or carrying on business in Australia. Equally, the allegation may describe the supply of such services in connection with the display of advertising to users located in Australia. The allegation is unclear.

69 The pleading in the Q News proceeding in respect of each of the other markets – the supply side platform market, the ad network market, the demand side platform market and the advertiser ad server market – follow the same pattern and suffer the same deficiency.

70 It is apparent from the pleading that the Q News applicants intend to allege that the impugned conduct of Google had the purpose or likely effect of substantially lessening competition in Australian ad-tech markets. The difficulty with the pleading is that it fails to allege facts and circumstances that define what constitutes the Australian ad-tech markets. There are indications that the Australian markets are intended to be defined as markets in which the relevant ad-tech service is supplied to a publisher ‘in Australia’ (possibly to publishers ‘domiciled’ in Australia), but that has not been expressly pleaded.

Market definition in the Riverine proceeding

71 The pleading in the Riverine proceeding addresses the ‘market in Australia’ requirement in a tolerably clear manner. Taking the publisher ad server market as the illustration, the Riverine applicants allege that:

87.     There is, and at all relevant times has been, demand from publishers for Publisher Ad Server Services in relation to Impressions generated by or in relation to consumers physically located or ordinarily resident in Australia using websites or apps.

88.     At all relevant times, Google has provided Publisher Ad Server Services in relation to Impressions generated by or in relation to consumers physically located or ordinarily resident in Australia using websites or apps.

…

91.     There is and at all relevant times has been a market for the supply of Publisher Ad Server Services in relation to Impressions generated by or in relation to consumers physically located or ordinarily resident in Australia using websites or apps (Publisher Ad Server Market).

…

111.     Each of:

…

b.     the Publisher Ad Server Market;

…

was a market in Australia for the purposes of s 4E of the CCA in that:

g.    its geographic dimension is limited to Australia; or

h.    the market in Australia formed part of a global market (excluding China).

72 It can be seen that the pleading defines the publisher ad server market in a manner that connects the supply of services to Australia. The market is limited to the supply of publisher ad server services in connection with the display of advertising to Australian consumers of the online content. Each of the other ad-tech service markets is defined with the same limitation.

73 The foregoing observations should not be understood as expressing any view on whether the markets, as defined by the Riverine applicants, are markets within Australia for the purposes of the CCA. The purpose of the observations is to identify the differences between the pleadings which may be relevant to the determination of the multiplicity issue.

74 The Riverine proceeding also contains additional allegations that are not within the Q News proceeding. First, the Riverine proceeding proffers an alternative market definition, alleging in the alternative that there is a market for the supply to publishers of publisher ad server services, supply side platform services and ad network services (defined in the pleading as the ‘supply-side intermediation services market’). Second, the Riverine proceeding makes a further allegation against Google concerning anti-competitive conduct in a market for the sale by online publishers, and the purchase by advertisers, of ad impressions for display advertising, which is referred to as the ‘display advertising market’. It is alleged that Google sold (to advertisers) impressions for the display of advertising on its YouTube video service to consumers who were physically located or ordinarily resident in Australia. That allegation is not made in the Q News proceeding, and is discussed separately below.

The impugned conduct and associated causes of action

75 There are both similarities and differences in the pleaded allegations concerning the impugned conduct and the associated causes of action.

76 Both proceedings plead, by way of relevant background, the history of business practices associated with the supply of ad-tech services from 2009. The pleaded factual background is similar in both proceedings, and explains:

(a) the ‘waterfall allocation’ by which publishers sold impressions through a publisher ad server prior to 2009;

(b) Google’s purchase of the publisher ad server DFP in 2008 and Google’s introduction in 2009 of a process called ‘Dynamic Allocation’ which allowed Google’s supply side platform, AdX, to submit a real-time bid for an impression outside of its usual order in the waterfall allocation;

(c) Google’s introduction in 2014 of a process called ‘Enhanced Dynamic Allocation’ which gave AdX further advantages in submitting a real-time bid for an impression without competition from other supply side platforms; and

(d) the introduction in 2015 by publishers of a process referred to as ‘Header Bidding’ which allowed multiple supply side platforms to bid for an impression at the same time in an auction process.

Allegations and causes of action in the Q News proceeding

77 In the Q News proceeding, it is alleged that Google engaged in (broadly) five categories of anti-competitive conduct as follows:

(a) Google’s publisher ad server, DFP, refused to participate in Header Bidding in order to protect Google’s supply side platform, AdX, from increased competition;

(b) Google procured that its publisher ad server, DFP, gave preference to Google’s supply side platform, AdX, over competitor supply side platforms by:

(i) conducting an auction process called ‘Open Bidding’ but which discriminated against competitor supply side platforms by:

(A) imposing a fee on competitor supply side platforms (and not on Google’s supply side platform, AdX);

(B) preventing competitor supply side platforms from soliciting bids from demand side platforms owned by the competitor; and

(C) interfering with the ability of competitor supply side platforms to identify users to whom the impressions will be displayed, and thereby impairing the ability of the competitor supply side platforms to solicit the optimal bids from advertisers;

(ii) conducting an auction process called ‘Unified Auction’ and ‘Unified Pricing Rules’ but which discriminated against competitor supply side platforms by:

(A) continuing to charge a fee on competitor supply side platforms (and not on Google’s supply side platform, AdX);

(B) refusing to supply ‘minimum bid to win information’ (being the lowest amount that the buyers could have bid and still won that auction) to competitor supply side platforms participating in Header Bidding; and

(C) requiring publishers to set one uniform ‘floor price’, removing their ability to set a higher ‘floor price’ for AdX;

(c) Google ensured that Google’s supply side platform, AdX, gave preference to Google’s publisher ad server, DFP, over competitor publisher ad servers by ensuring that demand from AdX could only be accessed effectively by a publisher if the publisher also used DFP;

(d) Google procured that its demand side platforms (Google Ads and DV360) gave preference to Google’s supply side platform, AdX, over competitor supply side platforms by:

(i) giving exclusive or nearly exclusive access to Google Ads demand for impressions to AdX; and

(ii) giving preferential access to DV360 demand for impressions to AdX over competitor supply side platforms; and

(e) Google procured that its demand side platform, Google Ads, gave preference to Google’s ad networks (AdSense and AdMob) over competitor ad networks by giving near exclusive access to Google Ads demand for impressions to Google’s ad networks.

78 The Q News applicants allege that, by engaging in the above impugned conduct, Google contravened s 46 of the CCA.

79 The Q News applicants further allege that the impugned conduct caused the Q News applicants and group members to receive materially less for programmatic open display advertising sold by them using ad-tech services than they would have received had the impugned conduct not occurred, and they thereby suffered loss and damage. It is relevant to note the scope of that claim:

(a) the claim is limited to loss and damage suffered by the Q News applicants and group members which are businesses ‘domiciled’ in Australia;

(b) but the claim is not confined to the sale of impressions for the display of advertising to users located in Australia – it includes the sale of impressions for the display of advertising to users located anywhere in the world; and

(c) nor is the claim confined to the sale of impressions using ad-tech services supplied by Google – it includes the sale of impressions using ad-tech services supplied by any supplier.

Allegations and causes of action in the Riverine proceeding

80 The Riverine applicants allege that Google contravened s 46 of the CCA by engaging in (broadly) ten categories of conduct in the markets for the supply of ad-tech services referred to as the ‘Decision Rule Conduct’, ‘User De-identification Conduct’, ‘Header Bidding Refusal Conduct’, ‘Tying Conduct’, ‘Google (Ads) AdX Preferencing Conduct’, ‘Google (DV360) AdX Preferencing Conduct’ ‘Google (DV360) Demand-side AdX Preferencing Conduct’, ‘Google (Ads) Opacity Conduct’, ‘Google (DV360) Opacity Conduct’ and ‘Project Bernanke Conduct’. There are difficulties with the manner in which those allegations have been expressed.

81 First, some of the impugned conduct dates back to 2009. It is unclear from the pleading whether the Riverine applicants rely upon such conduct, which occurred a long time prior to the period of the claim (which is defined as the period of 6 years prior to the commencement of the proceeding), as causing loss or damage during the period of the claim. This confusing aspect of the Riverine pleading is compounded by the manner in which the allegations of loss and damage are pleaded, which are not expressly confined to loss and damage incurred within the period of the claim.

82 Second, the manner in which certain of the categories of conduct have been defined makes it difficult to discern which specific conduct is alleged to be unlawful. An allegation of misuse of market power requires the identification of specific conduct that is alleged to contravene the statute. While it will be necessary to plead other facts relating to competition in the market which are relevant to the conclusion that the impugned conduct has the purpose or likely effect of substantially lessening competition, those other facts are not the conduct that contravenes the statutory prohibition. The Riverine pleading makes little attempt to identify the impugned conduct with precision. In particular, the ‘Decision Rule Conduct’ is defined as conduct involving “setting decision rules and parameters so as to favour Google’s SSP, Google (AdX), over other SSPs (as alleged at paragraphs 139 to 180 below)”. That allegation requires the reader to interrogate 40 paragraphs of pleading in an attempt to discern what is said to constitute the unlawful conduct. The approach taken in the Riverine pleading is far from satisfactory.

83 Putting to one side the difficulties with the Riverine pleading, the following observations can be made about the conduct that is alleged to contravene s 46.

84 As already noted, the Decision Rule Conduct is defined as setting decision rules and parameters so as to favour AdX over other supply side platforms as alleged in paras 139 to 180 of the pleading. The conduct that is alleged in those paragraphs appears to overlap with Q News category (b), but also appears to extend further. For example, it is alleged that in 2011, Google acquired a provider of Yield Management Technologies, AdMeld, integrated yield management technology into DFP and AdX, and ceased to make Yield Management Technologies available to third parties through AdMeld. It is also alleged that Google prevented publishers using DFP and/or AdX from using providers of Yield Management Technologies or any other platform of service that put AdX into real-time competition with other supply side platforms. Although far from clear, I proceed on the assumption that that conduct is also alleged to be Decision Rule Conduct.

85 In respect of User De-identification Conduct, the Riverine proceeding alleges that, before about 2009, DFP had a practice of sharing user IDs, which it assigned to consumers accessing publisher’s websites and apps, with supply side platforms and demand side platforms bidding for ad impressions. From 2009, and after establishing AdX, Google continued to make user IDs available to Google supply side platforms and demand side platforms, but not to competing platforms. As such, the User De-identification Conduct overlaps with Q News category (b), but appears to be alleged on a wider basis.

86 In respect of Header Bidding Refusal Conduct, the Riverine pleading alleges that, since the inception of Header Bidding in around 2015, AdX has refused to directly participate in Header Bidding. That allegation largely overlaps with Q News category (a).

87 The Tying Conduct involves five separate types of conduct. It is alleged that AdX has refused to accept or respond to bid requests from publishers except on the following terms:

(a) publishers using DFP as their publisher ad server enable the Dynamic Allocation feature;

(b) publishers using DFP as their publisher ad server enable the Enhanced Dynamic Allocation feature;

(c) publishers do not or do not except to a limited extent acquire services from a competitor of DFP;

(d) publishers do not request bids from AdX in and through any process of Header Bidding; and

(e) publishers acquire services from AdX as a bundle with the services of DFP.

88 The conduct in paragraphs (c) and (e) overlaps with Q News category (c), but the other categories of conduct appear to be wider.

89 In respect of Google (Ads) AdX Preferencing Conduct and the Google (DV360) AdX Preferencing Conduct, the Riverine pleading alleges (in substance) that Google directed all or most advertiser demand for publisher inventory handled by Google Ads or DV360 to AdX in preference to other supply side platforms. That allegation largely overlaps with Q News category (d).

90 In respect of Google (DV360) Demand-side AdX Preferencing Conduct, the Riverine proceeding alleges that Google:

(a) conditioned the activation of targeting features within DV360 upon exclusive placing of advertisers’ bids with AdX; and

(b) charged advertisers a higher rate in respect of impressions purchased on their behalf from non-Google supply side platforms than the rate applied to the purchase of impressions from AdX.

91 That conduct does not appear to be alleged in the Q News proceeding.

92 In respect of the Google (Ads) Opacity Conduct, the Riverine proceeding alleges that Google limited advertisers’ ability to compare the rates charged by Google Ads with those charged by other ad networks and demand side platforms. That conduct does not appear to be alleged in the Q News proceeding.

93 In respect of the Google (DV360) Opacity Conduct, the Riverine proceeding alleges that Google:

(a) has restricted access to data concerning the placement and performance of display advertising, including information identifying the consumer to whom a display advertisement was shown on YouTube; and

(b) restricted advertisers’ ability to independently analyse the performance of YouTube inventory.

94 That conduct does not appear to be alleged in the Q News proceeding.

95 In respect of the Project Bernanke Conduct, the Riverine pleading alleges that Google represented to publishers and advertisers that AdX utilised second-price auctions for bids from demand side platforms, but from 2013 AdX in fact conducted third price auctions where the two highest bids were from Google Ads and the third highest bid was from a competitor demand side platform, which resulted in:

(a) AdX selecting the highest bid as the winner of the auction;

(b) the price paid by AdX to DFP (and therefore the publisher) for the impression was the amount of the bid by the third highest bidder;

(c) the advertiser was required to pay AdX the amount of the second highest bid for the impression; and

(d) AdX retained the difference between the second highest bid for the impression (paid by the advertiser) and the third highest bid (paid to the publisher).

96 From around 2014, Google limited the Project Bernanke Conduct to impressions sold through AdX which failed to subscribe to Dynamic Allocation or Enhanced Dynamic Allocation. That conduct does not appear to be alleged in the Q News proceeding.

97 The Riverine applicants also allege that Google contravened s 46 of the CCA by engaging in the ‘Google (YouTube) Exclusivity Conduct’ in the display advertising market. It is alleged that Google (as a publisher, through YouTube) supplied or offered to supply impressions to advertisers on condition that advertisers acquire demand side platform services from DV360. The Riverine applicants further allege that that conduct had the likely effect of substantially lessening competition in the demand side platform market. That conduct is not alleged in the Q News proceeding.

98 The Riverine applicants also allege that the Tying Conduct, Header Bidding Refusal Conduct and the Google (YouTube) Exclusivity Conduct contravened s 47 of the CCA. That allegation is not made in the Q News proceeding.

99 Finally, the Riverine applicants also allege that the Tying Conduct and the Header Bidding Refusal Conduct is, in all the circumstances, unconscionable, in contravention of s 21(1) of the ACL. That allegation is not made in the Q News proceeding.

100 The Riverine applicants allege that the impugned conduct, severally or in combination, and whether continued into the relevant period or initiated during the relevant period, has caused the fees charged for ad-tech services to be materially higher than they would have been but for that conduct, and the Riverine applicants and group members have thereby suffered loss and damage. It is relevant to note the scope of that claim:

(a) the claim is not, as expressed, limited to fees charged for ad-tech services during the relevant period (being the period of 6 years prior to the commencement of the proceeding);

(b) the claim is not, as expressed, limited to fees charged for ad-tech services in relation to impressions generated by or in relation to consumers physically located or ordinarily resident in Australia using websites or apps.

101 At the multiplicity hearing, the Riverine applicants confirmed that the pleading of loss and damage in respect of transactions that have no apparent connection to Australia is intentional. The breadth of the claim raises many questions having regard to the territorial limitations that are part of Australian competition and consumer law. In particular, the pleading does not explain the basis on which it is alleged that anti-competitive conduct that occurred in respect of Australian markets, as defined in the pleading, caused loss or damage in respect of transactions that did not occur in Australian markets. This is a weakness in the Riverine pleading. In the absence of a coherent pleading about such matters, I place no weight on the fact that the Riverine proceeding alleges loss and damage in respect of transactions unlimited as to time and geography.

Relief

102 The relief sought in the Q News proceeding is confined to damages. The relief sought in the Riverine proceeding also includes declaratory and injunctive relief. In circumstances where it is alleged that the impugned conduct is ongoing, the application for injunctive relief has significance.

C.    Consideration of relevant factors

The parties’ positions regarding carriage

103 The Q News applicants have applied for an order that the Riverine proceeding be stayed, while the Riverine applicants have applied for an order that the Q News proceeding be stayed. The applicants in both proceedings submit that consolidation of the proceedings would be to the detriment of group members.

104 Google submits that if the Q News proceeding were to be stayed and the Riverine proceeding were to continue, a significant risk of excessive and duplicative costs would arise because more than one firm of solicitors would be conducting the work for the Riverine applicants (MBL and PFM). Google submits that the Court can and should mitigate this risk by making orders requiring compliance with a litigation protocol, appointing a costs referee to assess periodically the reasonableness of the legal costs being incurred by the Riverine applicants, and requiring that any excessive or duplicative costs not be borne by Google. Google otherwise takes no view as to which proceeding should go forward, rightly noting that it lies with the Court to determine which proceeding would be in the best interests of group members.

105 Although each of the respective applicants has applied for a stay of the other applicants’ proceeding, the Court is not required to stay one of the proceedings. An option available to the Court is to conduct a joint trial of both proceedings with each left constituted as open class proceedings.

Practitioners

106 A relevant consideration in resolving a carriage dispute is the relative experience of the practitioners representing the applicants and the legal resources that are available for the conduct of the proceedings.

107 The evidence shows that each of MBL, PFM and Piper Alderman, along with the counsel retained in both proceedings, are experienced in the conduct of large class actions, including competition law class actions. The Riverine applicants point to MBL’s and PFM’s participation in a higher number of class actions than Piper Alderman, and to a larger quantum of settlements achieved. The Q News applicants submit that involvement in a larger number of proceedings and in settlements with higher overall quantum does not support a finding that a better outcome for group members is likely to be achieved in this case by MBL and PFM conducting the case (citing Lidgett v Downer EDI Ltd [2023] VSC 574 at [65]).

108 In my view, the solicitor and counsel teams in both proceedings are well-qualified and have the experience and expertise to conduct a proceeding of this kind. I am also satisfied that each firm of solicitors has the human resources available to it to manage the conduct of the proceedings, and additional counsel can be engaged if necessary at different stages of the proceeding. In my view, it would not be reasonable to differentiate between the two proceedings on the basis of the legal practitioners engaged to conduct the proceedings.

109 However, the arrangements that have been entered into between MBL and PFM for the purposes of the Riverine proceeding require separate consideration. Ms Nishimura deposed that MBL has appointed PFM as its agent in the proceeding, pursuant to the terms of an Agency Retainer Agreement dated 19 March 2025. The Agency Retainer Agreement has the characteristics of a joint commercial enterprise, in that the firms agree that each firm will undertake a percentage share of the legal work, measured as a percentage of professional fees rendered. The legal work to be undertaken is agreed to be allocated between the firms in accordance with the terms of the Cooperative Litigation Protocol (which is annexed to the Agency Retainer Agreement). Under the terms of the Cooperative Litigation Protocol, a litigation committee is to be formed comprising two lawyers from each firm with responsibility for managing the litigation and determining the distribution and coordination of work between MBL and PFM. The committee is required to act unanimously and, if there is disagreement, a dispute resolution procedure must be followed.

110 No evidence was adduced by the Riverine applicants as to the reasons why MBL considered it necessary or appropriate to enter into the agency agreement with PFM. However, Ms Nishimura deposed that:

(a) MBL began investigating a possible class action against Google in February 2023 and publicly announced the investigation on 25 November 2024;

(b) PFM began investigating a possible class action against Google in December 2022 and publicly announced the investigation on 28 November 2024 (a few days after MBL’s announcement); and

(c) MBL and PFM “agreed to consolidate their investigations and jointly commence a representative proceeding” in January 2025.

111 The Agency Retainer Agreement records that not only has MBL entered into an agency arrangement with PFM with respect to the provision of legal services in the proceeding, but the litigation funder engaged by MBL has entered into a co-funding agreement with another funder. I infer that the other funder was originally retained by PFM.

112 Agency arrangements of this kind, in the context of class action litigation, might be entered into for at least two different reasons.

113 The first reason is that a firm, such as MBL, that wishes to commence a representative proceeding on behalf of a class of group members considers that it does not have sufficient human or financial resources to conduct the proceeding on its own, and engages a second firm for the purpose of supplementing its human or financial resources, and perhaps sharing the financial risk of the litigation. An arrangement that is entered into for those reasons may be considered beneficial in that it enables a proceeding to be commenced and run when it might not otherwise be possible.

114 The second reason is that a firm, such as MBL, that intends to commence a representative proceeding on behalf of a class of group members learns that another firm, such as PFM, is also intending to commence a competing class action (that is, a class action raising the same or substantially the same issues). Rather than commencing competing class actions, the firms decide to enter into an arrangement such that only one proceeding is commenced, and the legal work is divided between the two firms. Some may consider that an arrangement entered into for those reasons is beneficial because it avoids the duplication of costs associated with the commencement of two proceedings raising the same or similar issues, and the need for the Court to determine whether one of the proceedings should be stayed. There is, however, a detrimental aspect of such an arrangement. It removes the potential competition that would otherwise arise between the firms, and any litigation funders that are engaged to support the proceedings. The commencement of two or more competing class actions, and the Court’s procedures for determining which of the proceedings should be permitted to be conducted, has the desirable effect of imposing competitive pressure on the fees charged by the respective law firms and any litigation funders, which is ordinarily to the benefit of group members. Frequently, in the process of determining multiplicity disputes, the law firms and funders involved will offer to reduce their fees. Competition of this kind is beneficial to society as a whole and, for that reason, is protected by Australia’s competition law in Pt IV of the CCA.  Any arrangement that is entered into between law firms (or litigation funders) for the purpose, or with the effect, of avoiding or limiting competition in the supply of legal or financial services may contravene the prohibitions in Pt IV of the CCA.

115 It is inevitable that legal services supplied by two firms under an agency arrangement will result in additional costs that would not be incurred if a single firm were providing the legal services. This has been acknowledged previously by the courts in connection with class actions: see for example Perera at [274(a)] and Stallard v Treasury Wine Estates Ltd [2020] VSC 679 at [60]. That is because it will be necessary for the two firms to make decisions, on an ongoing basis, about which firm is to undertake specific work and to coordinate the performance of the work. As noted in Perera, there will inevitably be disagreements about the many forensic decisions that are involved in large and complex litigation. This is recognised in the Cooperative Litigation Protocol annexed to the Agency Retainer Agreement in the Riverine proceeding, with the establishment of a litigation committee and an associated dispute resolution process in the event of disputes. In circumstances where the arrangement is entered into to enable a proceeding to be commenced and run when it might not otherwise be possible, the detriment of additional costs may be regarded as offset by the benefit of enabling the proceeding to be conducted. However, where the arrangement is entered into merely to avoid the prospect of competing class actions (and the resulting competition between law firms with respect to their fees and funders with respect to their commission and other terms and conditions on which they are prepared to fund the proceeding), the detriment of additional costs adds to the potential anti-competitive detriment of the arrangement.

116 As already noted, no evidence was adduced by the Riverine applicants as to the circumstances in which MBL and PFM decided to “consolidate their investigations and jointly commence a representative proceeding”, which resulted in the firms entering into the agency arrangement. The evidence, such as it is, suggests that MBL and PFM may have elected to co-operate, rather than compete, but no finding to that effect can be made on the evidence before the Court.

117 The additional costs associated with the agency arrangement between MBL and PFM weigh against the Riverine proceeding.

Group membership

118 The description of group members in each proceeding has been set out earlier in these reasons. There is a significant difference between the descriptions. Relevantly, the Q News proceeding has been brought on behalf of online publishers domiciled in Australia, whereas the Riverine proceeding has been brought on behalf of online publishers (wherever located) who sold (to advertisers) impressions for the display of advertisements to consumers of online publications who were physically located or ordinarily resident in Australia.

119 Each of the respective applicants raised arguments in favour of their group definition, and raised arguments against the others’ group definition. In considering the arguments, it is important to keep in mind that the description of group membership and the scope of the claims made in the proceeding are discrete matters. As noted earlier, the description of group members does not, in and of itself, constrain the territorial scope of the claims made on behalf of the group members. The description of group members merely defines the persons whose claims are represented in the proceeding. In some of the arguments advanced by the parties, there was a blurring of that distinction.

120 The first matter to consider is the implicit requirement, derived from s 33H of the FCA Act, that persons who may be within the represented group be able to ascertain from the originating process or pleadings whether they are in fact group members: Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 at [17]-[20]; Dyczynski v Gibson (2020) 280 FCR 583 at [170] (Murphy and Colvin JJ) and [335] (Lee J). Each of the respective applicants argued that their group definition better satisfies the implicit requirement in s 33H.

121 The Riverine applicants submitted that the Q News group definition is vague and uncertain. They argued that the expression ‘domiciled in Australia’ is not defined and no criteria for assessing domicile are provided. It is unclear whether, to be ‘domiciled’ in Australia, an entity must be incorporated in Australia, physically located in Australia, physically located only in Australia, have headquarters in Australia, or something else. The Riverine applicants say that any publisher that has some operations in Australia but is incorporated outside of Australia and/or has operations in another country as well as Australia cannot ascertain whether or not it is a Q News group member. I accept that submission. The expression ‘domiciled in Australia’ does not have a definite legal meaning in relation to corporations, and the use of that expression in defining group membership is likely to cause difficulties for corporations to determine whether or not they are group members.

122 Conversely, the Q News applicants submitted that it is unclear if all publishers will be able to determine whether they are within the Riverine group definition (being a publisher who sold impressions for the display of advertisements to consumers who were physically located or ordinarily resident in Australia). In that regard, the Q News applicants argued that the evidence of Ms Nishimura on this topic is not sufficient to establish that all publishers can make that determination and nor is there any evidence as to whether and for how long the user location data is retained such that it could be used by publishers to determine if they are a group member in the Riverine proceeding. I do not accept that submission in so far as it relates to the description of group members. I consider that the evidence adduced by Ms Nishimura is sufficient to give the Court confidence that publishers will be able to determine whether they are group members. Ms Nishimura refers to a wide range of evidence that supports a conclusion that publishers obtain and use (for the purpose of selling impressions) location data of consumers of their online publications. As submitted by Q News, an important question arises whether and to what extent publishers retain such information. However, that question is of more relevance to the nature and the scope of the claims made in the Riverine proceeding (discussed below), rather than the group definition. For the purposes of the group definition, a publisher need only establish that they sold an impression for the display of advertisements to consumers who were physically located or ordinarily resident in Australia on one occasion.

123 The second matter to consider is the effect of the differences in group membership, and how those differences interact with the claims made in the proceeding.

124 As noted earlier, it can be readily concluded that the group members represented by the Q News proceeding are also group members in the Riverine proceeding. It is difficult to imagine any online publisher domiciled in Australia (whatever definition of ‘domicile’ is adopted) that does not publish advertisements to consumers in Australia. To be within the Q News proceeding but outside of the Riverine proceeding, the group member would have to be an online publisher domiciled in Australia that only publishes advertisements to people outside Australia, which would be an unusual circumstance. Thus, the Riverine proceeding includes a broader range of group members, being overseas publishers who sold impressions for the display of advertisements to consumers physically located or ordinarily resident in Australia.

125 One further argument advanced by the Q News applicants should be noted. The Q News applicants submitted that, in so far as the Riverine proceeding captures claims which are already the subject of foreign proceedings, the proceeding may constitute an abuse of process. I do not accept that submission. A similar submission was rejected by Beach J in J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 (Wisbey) (at [81]). As his Honour there observed, while an overlapping Australian proceeding may give rise to the potential for double recovery by some group members, that problem can be managed in a variety of ways (Wisbey at [83] and [88]).

126 Although it is only possible to express a preliminary view at this stage of the proceedings, each of the respective applicants has raised an arguable basis upon which to satisfy the territorial requirements of Australian competition and consumer laws. The Q News applicants have fastened upon the location of the publisher claimants in Australia as the relevant connecting factor, and raise claims in respect of the sale of impressions for the display of advertising anywhere in the world. Conversely, the Riverine applicants have fastened upon the location of the display of advertisements to users in Australia as the relevant connecting factor, and raise claims on behalf of publishers wherever they are located. At this early stage of the proceedings, it is not possible to say that one approach is correct and the other is incorrect. Both appear to have merit.

Nature and scope of the claims advanced

127 It has often been observed in the context of a multiplicity contest that, where the case is at an early stage, a comparison between pleadings has its limits and, unless a deficiency is manifest, it will often be unsatisfactory to conclude that one form of pleading is to be preferred: see for example Klemweb Nominees Pty Ltd (atf the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107; 369 ALR 583 at [85]; DA Lynch v Star Entertainment Group [2023] VSC 561 at [140].

128 Although there is force in that cautionary approach, the present multiplicity contest presents unusual challenges. The allegations raised in both proceedings are, in themselves, factually complex. Neither the services supplied nor the impugned business practices are familiar to the untutored reader, with the result that considerable effort must be made to comprehend the allegations. Furthermore, the allegations raise difficult questions concerning the application of the territorial limitations in Australian competition and consumer law to the conduct in question. As a result, the pleadings in both proceedings are lengthy and complex.

129 The difficulties in assessing the nature and scope of the claims advanced in each proceeding is compounded by the fact that the respective applicants have taken different approaches to many of the key issues. While the parties (generally) agree that the two proceedings address similar issues and are ‘competing class actions’, when analysed there are significant differences between the proceedings. There is a risk in the present matter that, by staying one of the proceedings, the Court will stay legitimate claims that are not advanced through the other proceeding.

130 For those reasons, the differences between the pleadings in the proceedings have been considered in greater detail than is usually the case. In comparing and contrasting the claims made in each of the proceedings, it is relevant to note that the claims have multiple integers, including: the respondents against whom the claims are made; the types of conduct alleged to be unlawful; the area of commerce (or markets) affected by the conduct and in respect of which claims are made; the causes of action which arise from the alleged unlawful conduct; and the types of relief sought, including the period over which loss is claimed.

131 The following is a summary of the key differences between the pleadings, which is drawn from the discussion earlier in these reasons.

The respondents against whom claims are made

132 In both proceedings, claims are made against Google LLC, Google Asia Pacific Pte Ltd and Google Australia Pty Ltd. Based on the pleadings, they appear to be the Google entities that are most likely to incur liability for the alleged unlawful conduct. In the Riverine proceeding, it is alleged that:

(a) Google LLC is the primary operating subsidiary of Alphabet Inc, designed the products and services the subject of the claims, including the services provided under the business names DFP, Ad Manager, AdX, AdSense, AdMob, DV 360 and Google Ads, and defines the strategies deployed by Google in the relevant markets;

(b) Google Asia Pacific provides publisher ad server services, supply side platform services, demand side platform services and ad network services to publishers and advertisers, in its own right and with and through other Google entities; and

(c) Google Australia markets and resells advertising services and information technology management services for other Google entities.

133 The Riverine applicants have also joined Alphabet Inc, the parent company of the Google group, as an additional respondent, and allege that Alphabet Inc is also liable for the alleged unlawful conduct of the Google entities. The role that Alphabet Inc played in the alleged unlawful conduct is not articulated with any precision in the Riverine pleading. The principal allegation is that Alphabet Inc is “responsible for setting global policies in relation to products and services developed by its subsidiaries”. In those circumstances, I do not consider that the inclusion of Alphabet Inc as an additional respondent is a material factor in the multiplicity contest.

The conduct alleged to be unlawful

134 As set out in some detail earlier in these reasons, the Riverine pleading has unsatisfactory elements, and in parts of the pleading it is difficult to identify with certainty the conduct that is alleged to be unlawful. Despite those difficulties, it is tolerably clear that the types or categories of conduct alleged to be unlawful in the Riverine proceeding include all of the types or categories of conduct alleged to be unlawful in the Q News proceeding, and includes other conduct. In that sense, the claims made in the Riverine proceeding are broader than those made in the Q News proceeding. It is not possible to assess the merits of the claims made at this stage of the proceeding. In particular, it cannot be said that the additional claims made in the Riverine proceeding are unmeritorious. As a result, the broader scope of the Riverine pleading (in terms of the categories of alleged unlawful conduct) weighs in the Riverine proceeding’s favour, because it would be contrary to the interests of group members to stay a proceeding in which those claims are made.

Market definition

135 The respective applicants take a different approach to defining the relevant markets which, as discussed earlier, must be markets in Australia within the meaning of s 4E of the CCA. Each of the respective applicants allege that there are separate markets for each of the ad-tech services, although the Riverine applicants plead in the alternative that there is a supply side intermediation services market comprising publisher ad server services, supply side platform services and ad network services. More significantly, the Riverine applicants define the area of trade and commerce that occurs in a market in Australia by reference to the supply of ad-tech services in connection with the display of advertising to consumers located in Australia. Conversely, the Q News pleading fails to allege what facts and circumstances define the relevant markets in Australia. That aspect of the Q News pleading is left in an uncertain state.

136 The Q News applicants submitted that the Riverine pleading of the markets in Australia is unorthodox for the reason that the consumers of the online content are ‘downstream’ of the relevant supply and demand between publishers and advertisers. It is not appropriate at this stage of the proceeding to express any concluded view on whether the market, as defined in the Riverine pleading, is a market in Australia. However, the submission advanced by Q News cannot be accepted. Within the economic framework that underpins Australian competition law, it is not accurate to describe the consumers viewing the advertisement as ‘downstream’ of the supply and demand (for impressions) between publishers and advertisers. The supply of the impression to an advertiser and the display of the advertisement to the consumer involve the same physical and commercial event. Advertisements are not ‘supplied’ to consumers in a trading sense – the consumers view the advertisements (which occurs at the moment of the sale of the impression to the advertiser). The relevant markets, as pleaded by the Riverine applicants, are markets for the supply of ad-tech services. The Riverine applicants seek to differentiate the geographic dimension of the market, and identify a market in Australia, by differentiating the supply of ad-tech services in connection with, or for the purpose of, the supply of impressions for the display of advertisements to consumers in Australia. At this stage of the proceeding, the Riverine pleading of relevant markets should be accepted as arguable.

137 The Riverine applicants criticise the Q News pleading for failing to allege, as an alternative, a supply-side intermediation services market. The Q News applicants submitted in response that there is little support for the existence of such a market in the evidence presently available, noting that it has not been alleged in any overseas proceeding against Google. In response, the Riverine applicants submitted that, in proceedings in the United States, Google contended that the supply-side ad-tech services compete in a single market. This aspect of market definition is likely to be developed and refined as the case proceeds. At this stage of the proceeding, I do not place any weight on that difference in the pleadings.

Causes of action

138 Both proceedings allege contraventions of s 46 of the CCA, and that cause of action is central to the case brought by each of the respective applicants.

139 The Riverine applicants also allege that some of the conduct that contravenes s 46 of the CCA, specifically the alleged Tying Conduct, Header Bidding Refusal Conduct and Google (YouTube) Exclusivity Conduct, also contravenes s 47. The respective applicants disputed the extent to which the inclusion of the s 47 causes of action enhanced the claims made in the Riverine proceeding. The Q News applicants submitted that the s 47 causes of action add nothing because conduct that would contravene s 47(1) would also contravene s 46(1) and therefore be captured by that cause of action. Both causes of action require proof that the impugned conduct had the purpose or likely effect of substantially lessening competition. The Riverine applicants submitted that that is not necessarily so for two reasons. First, a contravention of s 46(1) requires proof that the contravenor has a substantial degree of power in a market, whereas that is not a requirement for a contravention of s 47(1). Secondly, s 47(1) has an extended territorial application by reason of s 5(2) of the CCA – the prohibition applies to conduct undertaken outside Australia in relation to the supply of goods or services to persons within Australia. Thus, if any of the Google respondents were not carrying on business in Australia (for the purposes of s 5(1)(g)), their conduct is nevertheless subject to s 47(1) in so far as the conduct relates to the supply of goods or services to persons within Australia.

140 Again, at this stage of the proceeding, it is not possible to assess with any confidence the merits of the s 47 causes of action raised by the Riverine proceeding. It can be observed that the submission advanced by Q News is consistent with the authorities and economic principle. Although s 46 requires proof that the alleged convenor has a substantial degree of power in the market, exclusive dealing conduct is unlikely to have the effect of substantially lessening competition in a market unless it is engaged in by a firm with a substantial degree of market power. As observed by Fitzgerald J in Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd (1982) 66 FLR 120 at 134:

It would, I think, be an unusual and exceptional case in which it could be shown that competition in a generally competitive market was or was likely to be substantially lessened by a refusal to supply one of a number of competitive retailers in the market with a product otherwise freely available and competitively marketed. Further, where there is a market which is generally competitive, it plainly does not follow that conduct which affects the balance of competition by advantaging or disadvantaging a particular dealer or dealers or a particular product or products necessarily lessens the competition in the market.

141 Section 47 may be infringed where exclusive dealing conduct is undertaken for the purpose of substantially lessening competition, even though the conduct does not have that effect (for example, where the firm engaging in the conduct does not have substantial market power): see as an illustration Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 at [164] and [274]. Of course, a conclusion that conduct had the purpose of substantially lessening competition, but not the effect, may lead to a conclusion that no loss or damage was caused by the conduct.

142 I accept, nevertheless, the submission made by the Riverine applicants that s 47 has an extended territorial application by reason of s 5(2) of the CCA – the prohibition applies to conduct undertaken outside Australia in relation to the supply of goods or services to persons within Australia. By reason of s 5(2), I accept that it is possible, in the circumstances of this case, that s 47 will afford the Riverine applicants a viable cause of action through which to claim loss and damage while s 46 will not. For that reason, the additional cause of action invoked by the Riverine applicants weighs in favour of the Riverine proceeding.

143 The Riverine applicants further allege that some of the conduct that contravenes s 46 of the CCA, specifically the alleged Tying Conduct and Header Bidding Refusal Conduct, also contravenes s 21(1) of the ACL. The circumstances that are pleaded in support of that allegation are limited: they include the allegation that Google occupied a superior bargaining position to publishers, that the alleged Tying Conduct and Header Bidding Refusal Conduct was not necessary to protect Google’s legitimate business interests, and the conduct was engaged in (in effect) to protect Google from competition. There is a tendency in commercial litigation to ‘pile up’ multiple causes of action in respect of the same conduct. Having regard to the pleadings, I do not consider that the addition of a claim for unconscionable conduct weighs materially in the multiplicity contest.

Relief sought

144 Both proceedings seek relief in the nature of damages. However, there is some uncertainty on the pleadings as to the scope of the claim for damages in each of the proceedings.

145 As noted earlier, and as best as can be ascertained from the pleadings, the claim for damages in the Q News proceeding:

(a) is limited to loss and damage suffered by publishers ‘domiciled’ in Australia;

(b) is not confined to the sale of impressions for the display of advertising to users located in Australia and includes the sale of impressions for the display of advertising to users located anywhere in the world; and

(c) is not confined to the sale of impressions using ad-tech services supplied by Google and includes the sale of impressions using ad-tech services supplied by any supplier.

146 As drafted, the pleading of loss and damage in the Riverine proceeding is unlimited as to time or geography. As stated earlier, the pleading does not explain the basis on which it is alleged that anti-competitive conduct that occurred in respect of Australian markets, as defined in the pleading, caused loss or damage in respect of transactions that did not occur in Australian markets. In the absence of a coherent pleading about such matters, I place no weight on the fact that the Riverine proceeding alleges loss and damage in respect of transactions unlimited as to time and geography.

147 As such, the claims for damages in each of the proceedings, in so far as they can be considered coherent, have a different scope. The Q News proceeding seeks to recover losses sustained by Australian ‘domiciled’ publishers in respect of the supply of impressions viewed anywhere in the world. In contrast, the Riverine proceeding (coherently) seeks to recover losses sustained by all publishers (wherever located or carrying on business) in respect of the supply of impressions viewed in Australia. It follows that a stay of one of the proceedings may have the result that certain claims would be stayed because the claims are not the subject of the other proceeding. It will be necessary to return to that issue below.

148 The Riverine proceeding also seeks declaratory and injunctive relief, which is not sought in the Q News proceeding. The Riverine applicants submit, and I accept, that in circumstances where the alleged unlawful conduct is continuing, injunctive relief offers a means of changing Google’s rules and practices, and avoiding future loss to group members. The claims for injunctive relief weigh in favour of the Riverine proceeding.

149 The Q News applicants also submitted that their proceeding favours group members because it was commenced two months before the Riverine proceeding so the period in respect of which its group members would be entitled to claim damages under the CCA is two months longer. In circumstances where the Riverine proceeding was commenced a relatively short time after the Q News proceeding, and where the alleged unlawful conduct is continuing, I consider that the difference in the claim period is not a material factor.

Overall assessment of the claims advanced

150 The comparison of the nature and scope of the claims made in the two proceedings is challenging because there are material differences between the pleadings. There are also obvious deficiencies in both pleadings, which further complicates the comparison. Nevertheless, it is apparent from the foregoing that the Riverine pleading provides for more comprehensive claims against Google. In general terms, the nature and the scope of the claims advanced favours the Riverine proceeding.

151 There is one matter, however, that weighs against the Riverine proceeding. The Q News proceeding brings claims on behalf of publishers domiciled in Australia in respect of the acquisition of ad-tech services in connection with the sale of impressions for the display of advertisements regardless of where the advertisements are viewed. I am satisfied that publishers domiciled in Australia will be group members in the Riverine proceeding, and that the Riverine pleading alleges a coherent claim in respect of the acquisition of ad-tech services in connection with the sale of impressions for the display of advertisements to consumers located in Australia. However, for the reasons given earlier, and particularly having regard to the market definitions pleaded in the Riverine proceeding, I am not satisfied that the Riverine pleading alleges a coherent claim on behalf of publishers domiciled in Australia in respect of the acquisition of ad-tech services in connection with the sale of impressions for the display of advertisements regardless of where the advertisement is viewed. This leads to the circumstance that an important claim made in the Q News proceeding is not coherently replicated in the Riverine proceeding. This issue is discussed further below.

Funding and legal costs

152 The respective applicants addressed the following matters in their evidence and submissions:

(a) the proposed funding arrangements, including funding terms and conditions and percentages;

(b) cost estimates and comparative costs modelling;

(c) the sufficiency of the resources of the entity who will fund the proceeding, to fund it in accordance with the proposed funding model and estimated costs; and

(d) net hypothetical return to group members.

153 Each will be addressed in turn.

Proposed funding arrangements

154 The respective applicants have each entered into litigation funding agreements to fund the proceedings. Each of the litigation funders proposes to seek a common fund order at the conclusion of the proceeding, assuming the proceedings are successful. A common fund order typically provides for the quantum of a litigation funder’s remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceeding and for that liability to be discharged as a first priority from any moneys so recovered, thereby ensuring that all group members bear a proportionate share of that liability. As a result of the decision of the High Court in BMW Australia Ltd v Brewster (2019) 269 CLR 574, this Court does not have power to make a common fund order at the commencement of a representative proceeding. However, ss 33V(2) and 33Z(1)(g) of the FCA Act empower the Court to make a common fund order at the conclusion of a proceeding upon settlement or judgment respectively: Kain v R&B Investments Pty Ltd [2025] HCA 28 at [10] (Gageler CJ), [35] (Gordon, Steward, Gleeson, Beech-Jones JJ), [123] and [134] (Edelman J) and [174] (Jagot J), affirming the conclusion of the Full Federal Court in Elliott-Carde v McDonald’s Australia Ltd (2023) 301 FCR 1 at [170] (Beach J), [423] (Lee J) and [504] (Colvin J) and Galactic Seven Eleven Litigation Holdings LLC v Davaria (2024) 302 FCR 493 at [32] (Murphy J), [136] (Lee J) and [142] (Colvin J). The making of a common fund order is at the discretion of the Court.

155 The Q News proceeding is funded by Woodsford. Evidence was adduced concerning the financial resources available to Woodsford and its experience in funding litigation in Australia. No issues were raised with respect to those matters.

156 The specific funding arrangements agreed between the Q News applicants and Woodsford are confidential. I accept that it is necessary, in the interests of justice, to maintain the confidentiality in respect of certain aspects of the funding arrangements. That is because the disclosure of certain aspects of the arrangements is likely to give Google a tactical advantage in the proceeding which would produce unfairness to group members. However, other aspects of the arrangements, including particularly the litigation funding fee proposed to be charged by the funder if successful, do not confer a strategic advantage on Google and I consider that there is a public interest in the disclosure of those fees.

157 Woodsford has agreed to fund the Q News proceeding on the basis that, if the proceeding is concluded successfully, it will seek a common fund order for payment of its cash outlay (the amounts expended in funding the litigation) plus a success fee of 22.5% of the first $150 million of the gross proceeds and 20% of any gross proceeds over $150 million. Woodsford has agreed to give an undertaking to the Court that it will not seek, and will not ask or oblige the Q News applicants to seek, a common fund order in an amount that exceeds the above amounts.

158 With respect to Woodsford’s obligations to fund the litigation, it is relevant to note, without disclosing confidential details, that to some extent the costs of the litigation are likely to be shared between Woodsford and Piper Alderman in that Piper Alderman will bear some of the professional costs of the litigation on a ‘no win no fee’ basis. In relation to that component of its professional fees, Piper Alderman will charge group members a 25% uplift on the fees incurred if the proceeding is successful (subject to Court approval).

159 Woodsford has also agreed to provide security for Google’s costs, which is discussed separately below.

160 The Riverine proceeding is funded by CF FLA Australia Investments 4 Pty Ltd, which is ultimately owned and controlled by funds managed by Fortress Investment Group LLC (Fortress). Fortress has entered into a Co-Funding Agreement with Balance Legal Capital III UK A Ltd, an English proprietary company owned and controlled by funds managed by Balance Legal Capital LLP (Balance). Evidence was adduced concerning the financial resources available to the Riverine proceeding funders. No issues were raised with respect to those matters.

161 As for the funding arrangements in the Q News proceeding, the specific funding arrangements agreed between the Riverine applicants and Fortress and Balance are confidential. As stated above, I accept that it is necessary, in the interests of justice, to maintain the confidentiality in respect of certain aspects of the funding arrangements.

162 Fortress has agreed to fund the Riverine proceeding on the basis that, if the proceeding is concluded successfully, it will seek a common fund order for payment of its cash outlay (the amounts expended in funding the litigation) plus a success fee in (no more than) the following amounts:

(a) if there is a settlement or judgment within 2 years of the date of the orders determining the multiplicity dispute, 25% of the claim proceeds;

(b) if there is a settlement or judgment after 2 years of the date of the orders determining the multiplicity dispute, 30% of the claim proceeds.

163 With respect to Fortress’s obligations to fund the litigation, it is relevant to note, without disclosing confidential details, that the costs of the litigation will be shared between Fortress one the one hand and MBL and PFM on the other, in that MBL and PFM will bear some of the professional costs of the litigation on a ‘no win no fee’ basis. In relation to that component of their professional fees, MBL and PFM will charge group members a 25% uplift on the fees incurred if the proceeding is successful (subject to Court approval).

164 Fortress has also agreed to provide security for Google’s costs, which is discussed separately below.

165 It can be seen that the litigation funding fee proposed to be charged by Woodsford is materially less than the fee proposed to be charged by Fortress. Experience suggests that a proceeding of this nature will not be concluded within 2 years, such that the success fee to be sought by Fortress will be 30% whereas the success fee to be sought by Woodsford will be 22.5% for the first $150 million and 20% for claim proceeds above that amount. All other things being equal, the lower success fee is a material benefit to group members.

166 In response to the large difference in the success fees to be sought by the funders, the Riverine applicants submitted that, while litigation funding arrangements can be relevant in a multiplicity dispute, they will not always be relevant, still less determinative (as observed in Wigmans at [111]). The Riverine applicants submitted that, in the present matter, little weight should be placed upon this consideration for two reasons. First, the return to group members is far more likely to be affected by the ultimate award or settlement than by differences in funding rates. The Riverine applicants argued that the composition of the group, the pleaded causes of action and damages, the more realistic budget (discussed below), and the experience of the solicitors, provide a basis to conclude that the Riverine claim is likely to achieve a larger ultimate return to group members. Secondly, the portion of any award or settlement that group members and funders receive is ultimately determined by the Court in its consideration of what is just, fair and reasonable.

167 I accept that the matters raised by the Riverine applicants are relevant considerations. In the present matter, and as stated earlier, I do not accept that there is any material difference in the respective legal teams. However, I do accept that the Riverine proceeding advances more comprehensive claims and, as discussed below, contemplates much larger expenditure on the proceeding. To some extent, I consider that the difference in proposed funding fees can be attributed to the difference in the financial risk being assumed by the funders of each proceeding. Without revealing confidential details, the funding terms and conditions offered by Woodsford have the result that it has a significantly lower financial risk in funding the litigation in comparison to Fortress.

Cost estimates and comparative costs modelling

168 The respective applicants provided the Court with estimates of the expected costs of the proceeding, including solicitor fees, counsel fees, other disbursements (which include fees charged by expert witnesses) and the costs associated with providing security for costs. Whilst cost estimates assist the Court in determining which proceeding is more likely to advance the interests of group members, two matters must be kept in mind. First, experience teaches that the estimates may not be a reliable guide to the expenditure ultimately incurred. The course of litigation is always unpredictable. Second, a lower cost estimate is not always beneficial to group members. The successful prosecution of a claim, particularly against a well-resourced respondent, may require considerable expenditure of legal resources.

169 In the present matter, there is a substantial difference in the costs estimates for the conduct of their proceedings provided by the respective applicants. The Riverine applicants have proposed a budget that is more than double the budget proposed by the Q News applicants.

170 The Q News applicants submitted that their budget is comparable to other similar proceedings conducted by Piper Alderman and is supported by the average legal costs approved in class action settlements since the inception of the class action regime under Pt IVA of the FCA Act. They further submitted that the much higher budget for the Riverine proceeding may be impacted by the inevitable additional costs occasioned by the agency agreement between MBL and PFM as well as the high hourly rates charged by MBL and PFM. The evidence disclosed that the hourly rates proposed to be charged by MBL are materially higher than those proposed to be charged by Piper Alderman at every level of seniority within the firms. The hourly rates proposed to be charged by PFM were lower than MBL, but still higher than those proposed to be charged by Piper Alderman at most levels of seniority within the firms. It is unnecessary to include a comparative table of each firm’s hourly rates. To be clear, however, I do not consider that there is any justification for a suppression order over the hourly rates charged by the legal representatives in representative proceedings.

171 The Riverine applicants submitted that the budget prepared by the Q News applicants is manifestly inadequate for a proceeding of this size and complexity. They submitted that the Q News budget represents a false economy that is likely to prejudice the preparation and prosecution of the proceeding. The written submissions filed on behalf of the Riverine applicants identified a number of elements of the Q News budget which they submitted were plainly insufficient for a proceeding of this nature. Without revealing confidential details (which would provide Google with an unfair advantage), I accept that submission. I consider that the Q News budget is unrealistic.

Sufficiency of resources available to fund the proceedings

172 As noted earlier, the funding arrangements for both proceedings involve cost sharing between the funders and the solicitors. The specific arrangements are confidential and it is unnecessary to reveal them in this judgment.

173 Each of the respective applicants adduced evidence with respect to the financial capacity of the solicitors to fund their share of the expected litigation costs. I am satisfied that each firm of solicitors has the financial capacity to do so.

174 However, as noted above, the budget proposed by the Q News applicants for the Q News proceeding is unrealistic. As a consequence, under the Q News funding arrangements, Piper Alderman will ultimately be required to fund a significantly larger amount of legal costs than reflected in its present budget. Whilst the evidence shows that Piper Alderman has considerable experience in class action litigation, and substantial financial resources, the potential increase in the amount of costs that must be funded by Piper Alderman presents some risks to the conduct of the Q News proceeding.

Net hypothetical return to group members

175 Leaving aside the difference in the costs estimates to conduct the proceeding, the comparative costs modelling shows that the financial return to group members will be better under the Q News proceeding, assuming a given level of financial recovery from the proceedings. This is due to the fact that the litigation funding success fee proposed to be sought by Woodsford is materially less than the fee proposed to be sought by Fortress.

176 The Riverine applicants also provided the Court with an alternative ‘common costs’ model, under which the legal costs in each proceeding are assumed to be the same. The Q News applicants submitted that the common costs model should not be adopted by the Court, as it is based on the flawed assumption that the litigation costs are likely to be the same in both proceedings. The Q News applicants submitted that that assumption is unreasonable for reasons including that the Riverine proceeding involves two firms of solicitors, acting together, with higher hourly rates than Piper Alderman, occasioning additional costs. Nevertheless, even under the common costs model, the Q News proceeding results in significantly higher returns to group members than the Riverine proceeding in every scenario modelled (again, due to the difference in the litigation funding success fee).

177 As stated above, the Riverine applicants submitted that the return to group members is far more likely to be affected by the ultimate award or settlement than by differences in funding rates. The Riverine applicants submitted that the composition of the group, the pleaded causes of action and damages, the more realistic budget, and the experience of the solicitors, provide a basis to conclude that the Riverine proceeding is likely to achieve a larger ultimate return to group members. I accept that these are relevant considerations.

Overall assessment of the funding proposals

178 Overall, I consider that the funding and legal costs arrangements favour the Riverine proceeding.

179 Ultimately, the two proceedings present two very different proposals. The proposal for the Q News proceeding adopts what might be described as an economical model, in which it is forecast that overall costs will be kept at lower levels (in comparison to the proposal for the Riverine proceeding) and, perhaps consequentially, the litigation funding fee that will be sought upon a successful outcome is much lower than for the Riverine proceeding. Conversely, the proposal for the Riverine proceeding forecasts much higher overall costs of the litigation and, perhaps consequentially, the litigation funding fee that will be sought upon a successful outcome is much higher than for the Q News proceeding.

180 As stated above, I consider that the Q News budget is unrealistic. Experience shows that the proper conduct of a proceeding of this kind will require expenditure in the order proposed by the Riverine applicants. Having regard to the funding terms and conditions offered by Woodsford and the budget for the Q News proceeding, there is some risk that financial pressures will cause the conduct of the Q News proceeding to be compromised. In my view, that risk outweighs the higher funding success fee being sought in the Riverine proceeding.

Proposals for security

181 Although the primary consideration underpinning the resolution of the multiplicity issue is the interests of group members, the Court must also ensure that the respondent is treated fairly: Perera at [195]; Wigmans v AMP Ltd [2019] NSWSC 603 (Wigmans SC) at [33], [125]. For that reason, security for costs is a relevant consideration in determining which of multiple proceedings should be awarded carriage: Perera v GetSwift Ltd (2018) 263 FCR 1 at [169]; Wigmans SC at [121]; Lay v Nuix Ltd [2022] VSC 479; 167 ACSR 27 at [18]. The parties addressed the following matters in the evidence and submissions:

(a) the proposal for security for costs, including who is to provide security for costs, the proposed form of security and relevant material particulars of any expected “after the event” (ATE) insurance policy; and

(b) the litigation funder or firm of solicitors’ resources to meet any adverse costs order.

182 The parties sought confidentiality orders with respect to the evidence and submissions concerning those matters. In my view, the interests of justice require proper disclosure of those matters as they affect the interests of group members and Google. I do not consider that the disclosure of such matters provides any material advantage to Google. In a matter of this kind, involving a dispute between commercial entities, it is inevitable that the Court will order security for costs and the only issue that may be the subject of dispute is the form, amount and timing of the security. Those matters are usually agreed between the parties but, if not, the Court will determine any dispute soon after resolution of the multiplicity contest.

183 Google’s solicitors have notified both groups of applicants that Google intends to seek security for costs and that it considers at least $9 million in security will need to be provided.

184 The funder of the Q News proceeding, Woodsford, has agreed to indemnify the Q News applicants against an adverse costs order. If despite that indemnity the Court requires the Q News applicants to provide security, Woodsford has obtained an ATE insurance policy from three A-rated Lloyd’s syndicates. The Q News applicants have offered to provide security for Google’s costs in the proceeding by deeds of indemnity from those ATE insurers, coupled if required with a payment into court for enforcement costs in the United Kingdom.

185 The Riverine proceeding funder, Fortress, has agreed to indemnify each of the Riverine applicants against any adverse costs order and to provide security for Google’s costs as agreed or as ordered by the Court. The Riverine applicants submitted that Fortress has the financial capacity to do so, with approximately $49 billion of assets under management.

186 I am satisfied that the funders of both proceedings are willing and able to provide security for costs in favour of Google as ordered by the Court. This issue is therefore neutral as between the parties.

Extent of any book build

187 Each of the Q News and Riverine proceedings are open class proceedings, with the class likely to comprise many thousands of group members. At this point in time, the solicitors in both proceedings have decided not to undertake a ‘book build’ (encouraging potential group members to engage them as solicitors in the proceeding). To date, approximately 70 publishers have expressed interest in the Q News proceeding and 54 publishers have registered or expressed interest in the Riverine proceeding. The respective applicants submit, and I accept, that this factor weighs neutrally as between the two proceedings.

The state of preparation of the proceeding

188 The parties’ evidence and submissions addressed the following matters:

(a) the conduct of the applicants in the respective proceedings to date;

(b) the degree of expedition with which the applicants have approached the proceedings; and

(c) the order of filing.

189 Piper Alderman commenced investigations with respect to a potential proceeding against Google in February 2022, and the Q News proceeding was commenced on 16 December 2024.

190 As noted earlier, PFM commenced investigations in December 2022 and MBL separately commenced investigations in February 2023. Each of those firms publicly announced their investigation in November 2024, a short time prior to the commencement of the Q News proceeding. MBL and PFM decided to commence a proceeding jointly in January 2025 and the Riverine proceeding was commenced on 14 February 2025.

191 The evidence disclosed that each of the firms has undertaken substantial work in investigating the allegations against Google, including engaging economic and other experts to advise them.

192 Having regard to the foregoing, the date of commencement of the proceedings, and the overall preparation of the proceedings, is not a relevant factor in the present case.

193 The Q News applicants submitted that a relevant consideration is the extent to which the individual claims of the named applicants represent the range of claims being brought on behalf of group members. They submitted that the first named applicant, Q News Pty Ltd, used Google Ad Manager which houses both Google’s publisher ad server (DFP) and Google’s supply-side platform (AdX), and the second named applicant, Sydney Times Media Pty Ltd, used Google’s ad network, AdSense. In contrast, both of the named applicants in the Riverine proceeding used AdSense. The Q News applicants submitted that this is an important difference. Mr Whyte deposed that AdSense is a simpler platform typically used by smaller publishers, and that a publisher using AdSense (unlike Google Ad Manager) will not individually have claims in respect of much of the conduct alleged to be unlawful in the proceedings.

194 In my view, the issue raised by Q News is not a material factor at this stage of the proceeding. It is well established that a named applicant, being the representative of the group members, must themselves have a personal claim against each respondent (Ryan v Great Lakes Council (1997) 78 FCR 309), but it is not necessary for the representative or representatives to have personal claims in respect of all claims alleged against each respondent in the proceeding (Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179 at [23]). Q News accepted that both of the proceedings satisfy the requirements of s 33C of the FCA Act in that regard. In due course, it would be expected that the representative applicants will identify group members who have personal claims in respect of the range of claims made in the proceeding, to enable the Court to conduct an initial trial of the claims. If in the future the representative applicants are unable to identify any group member who has a personal claim in respect of one or more of the claims made in the proceeding, those claims may have to be withdrawn (or face the prospect of being dismissed). But those are decisions made in the course of preparing the proceeding for trial. At this point in time, there is no basis to assume that the representative applicants in either proceeding will be unable to identify group members who have personal claims in respect of the range of claims made in the proceeding.

D.    Conclusion

195 Weighing the relevant factors, and subject to two caveats, I consider that it is in the interests of justice to stay the Q News proceeding and permit the claims against Google to be litigated on behalf of group members through the Riverine proceeding. In reaching that conclusion, I have given the most weight to the following matters:

(a) first, the group membership represented in the Riverine proceeding is a broader class than the Q News proceeding and includes all of the group members within the Q News proceeding;

(b) second, the claims made in the Riverine proceeding have a broader scope than the claims that are made in the Q News proceeding; and

(c) third, the proposed budget to conduct the Riverine proceeding is more realistic in comparison to the Q News budget, and the funding arrangements to support the costs of the litigation are more comprehensive and therefore more beneficial to group members (in terms of conducting the proceeding), notwithstanding that the funding success fee proposed to be sought from group members, and the lawyers’ fees to be charged to group members, are materially higher in the Riverine proceeding.

196 The first caveat to the above conclusion is my concern that, presently, the Q News proceeding advances a coherent claim on behalf of Australian publishers that is not coherently advanced in the Riverine proceeding. The Q News proceeding advances claims on behalf of Australian publishers in respect of the acquisition of ad-tech services in connection with the sale of impressions for the display of advertisements regardless of where the advertisements are viewed. The Riverine proceeding defines the relevant markets in which the actionable anti-competitive conduct occurred by reference to the acquisition of ad-tech services in connection with the sale of impressions for the display of advertisements to consumers located in Australia. Whilst the Riverine proceeding purports to claim loss and damage in respect of the acquisition of ad-tech services in connection with the sale of impressions for the display of advertisements regardless of where the advertisements are viewed, that allegation does not cohere in a satisfactory manner with the market definitions adopted in the Riverine proceeding, in which it is alleged that contraventions of Australian competition law occurred.

197 It would be unfair to Australian publishers represented by the Q News proceeding to stay that proceeding if the full extent of their claims were not advanced through the Riverine proceeding. In the circumstances, and having regard to the advantages otherwise provided through the Riverine proceeding, I consider it appropriate to afford the Riverine applicants an opportunity to consider that issue and whether they wish to amend their pleading to advance the claim in a more coherent manner. It will be a matter for the Riverine applicants whether they choose to amend their pleading at this stage. However, if the Riverine applicants choose not to amend, the Q News applicants will be given liberty to apply to lift the stay of their proceeding to enable those claims to be advanced. An order will be made giving the Riverine applicants a period of approximately two months in which to file any amended pleading addressing this issue.

198 The second caveat concerns the agency arrangement entered into between MBL and PFM. As discussed earlier, no evidence was adduced by the Riverine applicants as to the reasons why MBL considered it necessary or appropriate to enter into the agency agreement with PFM. It is inevitable that legal services supplied by two firms under an agency arrangement will result in additional costs that would not be incurred if a single firm were providing the legal services. In the absence of evidence demonstrating the necessity for such an arrangement, those additional costs should not be borne by group members.

199 The agency arrangements between MBL and PFM are governed by the Agency Retainer Agreement and, under that agreement, the parties have agreed that the legal work will be allocated between the firms in accordance with the terms of the Cooperative Litigation Protocol annexed to the Agreement. I accept that adherence to the Cooperative Litigation Protocol will assist in avoiding duplication in costs in the conduct of the proceeding. However, it is appropriate that there be oversight of the costs being incurred to reduce further the risk of wasted costs. Further, the costs incurred by MBL and PFM in managing and coordinating the division of work between them is, by definition, a product of the decision of those firms to conduct the litigation through an agency arrangement and would not be incurred if a single firm were conducting the litigation. Those costs should not be recoverable against the respondents or from the proceeds of any award or settlement in favour of group members (subject to any further order of the Court).

200 To secure that outcome, the following orders will be made in the Riverine proceeding:

(a) first, an order will be made pursuant to r 1.33 of the Federal Court Rules 2011 (Cth), requiring MBL and PFM to conduct the proceeding in accordance with the Cooperative Litigation Protocol;

(b) second, an order will be made stipulating that, subject to further order, the following three categories of costs will not be recoverable against the respondents or from the proceeds of any award or settlement in favour of group members:

(i) the costs incurred by MBL and PFM in connection with the work of the Litigation Committee, as defined in the Cooperative Litigation Protocol;

(ii) the costs of any other work performed by MBL and PFM that is identified by a Costs Referee (to be appointed under the orders) and/or the Court as costs relating to work that has been performed by reason of there being two firms conducting the proceeding on behalf of the applicants, and where such work would not have needed to be performed if there was only one firm conducting the proceeding; and

(iii) the fees of the Costs Referee (to be appointed under the orders);

(c) third, an order will be made for the appointment of the Costs Referee to conduct an inquiry every six months into the above categories of costs.

201 With respect to costs, I consider that the appropriate order in the Q News proceeding is that there be no order as to costs. However, I will give the parties to that proceeding an opportunity to apply to vary that order. In the Riverine proceeding, I consider that the costs of the applicants and the respondents incurred in respect of the multiplicity dispute (in other words, the costs incurred in addressing the stay application in both proceedings) should be costs in the cause in the Riverine proceeding.

202 Finally, with respect to the extant applications for suppression orders in respect of parts of the evidence and submissions filed in connection with the multiplicity dispute, I will afford the parties one further opportunity to limit their applications in a manner consistent with Pt VAA of the FCA Act. As stated earlier in these reasons, I consider that the applications for suppression made by the parties to date are excessively broad. Any application should be confined to material that remains confidential (after the publication of these reasons) and that, if disclosed, would confer an unfair advantage on the respondents. Matters that are readily apparent from the pleadings are not confidential, and the disclosure of the percentage success fee proposed to be sought by a litigation funder and the hourly rates proposed to be charged by lawyers does not confer an unfair advantage on the respondents.

Associate:

Dated:    6 August 2025

SCHEDULE OF PARTIES