Federal Court of Australia

Q News Pty Ltd v Google LLC [2025] FCA 1208

ORDERS

THE COURT ORDERS THAT:

1.    The applicants in proceeding VID164/2025 be granted leave to intervene in these proceedings on the basis that they may make written and oral submissions and may be liable for costs.

2.    The application for leave to appeal be listed for hearing in Melbourne at 10.15 am AEDT on 23 February 2026 for half a day.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Q News Pty Ltd and Sydney Times Media Pty Ltd (Q News Applicants) are representative applicants in proceedings in this Court brought against Google LLC, Google Asia Pacific Pte Ltd and Google Australia Pty Ltd. They allege unlawful conduct by the Google companies in connection with online publishing of advertising. The conduct is alleged to have contravened the anti-competitive conduct provisions in Part IV of the Competition and Consumer Act 2010 (Cth) and to have been unconscionable contrary to the Australian Consumer Law.

2    Similar claims are raised in separate representative proceedings brought in this Court by Riverine Grazier Pty Ltd and Mornington Peninsula News Group Pty Ltd as trustee for the McCullough Family Trust (Riverine Applicants) against the Google companies and their parent company, Alphabet, Inc.

3    Each of the proceedings are brought on behalf of an open class of claimants.

4    By reason of the multiplicity of proceedings raising similar claims, an issue arose as to which of the two proceedings should be allowed to proceed. In the argot of class action lawyers, a dispute as to which group of applicants (and lawyers) will conduct representative proceedings in respect of a particular claim is known as a carriage dispute.

5    Orders were made on the application of the Riverine Applicants permanently staying the proceedings brought by the Q News Applicants. A reciprocal application by the Q News Applicants in respect of the proceedings brought by the Riverine Applicants was declined. Reasons were delivered for the making of those and other orders in the two proceedings: Riverine Grazier Pty Ltd v Google LLC [2025] FCA 895 (PJ).

6    In consequence, it is the representative proceedings brought by the Riverine Applicants that are ongoing. Orders have been made for an amended statement of claim to be filed in those proceedings. However, liberty has been reserved for the Q News Applicants to vary or set aside the stay order in their proceedings within 14 days after the amended statement of claim has been filed. It appears that the liberty has been reserved for the limited purpose of allowing the Q News Applicants to apply to lift the stay of their proceedings if a particular aspect is not addressed by amendments to the statement of claim in the proceedings brought by the Riverine Applicants: PJ at [197].

7    The Q News Applicants now seek leave to appeal against the orders granting the stay of the representative proceedings they have commenced. Although those orders address various matters in respect of the stay and its consequences, the focus of the proposed appeal grounds is upon alleged errors in respect of the refusal of the application for a permanent stay of the proceedings brought by the Riverine Applicants. The Q News Applicants were also intervenors in the proceedings brought by the Riverine Applicants for the purpose of seeking a stay of those proceedings. As intervenors, it may be unclear as to whether they could seek leave to appeal. In Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [226] (Kirby J) the view was expressed that under the previous form of the Rules of this Court an intervenor could appeal, but there is no equivalent to the relevant rule in the Federal Court Rules 2011 (Cth). In any event, the Q News Applicants have not sought leave to appeal the refusal of their application for a stay of the proceedings brought by the Riverine Applicants. Presumably, if the Q News Applicants were to obtain leave to appeal the orders made to stay their proceedings and their appeal was successful then that outcome would be a change in circumstances that would then justify renewing their interlocutory application to permanently stay the proceedings brought by the Riverine Applicants. In any event, it is well established that the resolution of a carriage dispute may require a decision to be made in the interests of justice as to which of the multiple proceedings should be allowed to continue. Therefore, the application for leave is to advance an appeal in which the issues to be addressed would concern both proceedings.

8    In those circumstances, leave was sought by the Riverine Applicants to intervene in the proceedings seeking leave to appeal (and any appeal if leave was given). There was no opposition to that application. I was persuaded that such an order was appropriate having regard to the matters the subject of the proceedings. It appears that, in any event, the Riverine Applicants ought to have been joined as respondents to the appeal by reason that they are parties who 'may be affected by the relief sought in a notice of appeal, or who might be interested in maintaining the judgment under appeal': see r 36.31(1) of the Federal Court Rules.

9    There was an issue as between the Q News Applicants and the Riverine Applicants as to whether the application for leave should first be determined by a single judge or whether the application for leave should be referred to a Full Court on the basis that it would be heard concurrently with any appeal.

10    For the following reasons, I declined to make a direction referring the leave application to a Full Court.

11    An application for leave to appeal 'must be heard and determined by a single Judge unless: … a Judge directs that the application be heard and determined by a Full Court; or … the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application' (emphasis added): see s 25(2) of the Federal Court of Australia Act 1976 (Cth). The form of the provision (by stating a mandatory requirement by use of the word 'must' followed by a qualification introduced by the word 'unless') indicates that there must be a sufficient reason for a single judge to make a direction for a leave application to be heard and determined by the Full Court as an exception to what is usually required (namely, that the application must be heard and determined by a single judge).

12    Further, there are differences in language evident in the two exceptions provided for by s 25(2), namely (a) a direction by a judge; or (b) an assigned Full Court considering it appropriate. The first exception must contemplate a basis for the direction that is sufficient to depart from the stated requirement that leave applications must be heard by a single judge. In that sense, it must be a 'good reason': Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCA 536 at [12]-[13] (Barker J).

13    In contrast, the second exception applies where the assigned Full Court 'considers it is appropriate' for it to hear the leave application. The broader language of appropriateness is not found in the first exception. The broader language encompasses any reason that means it is suitable for the leave application to be heard by the assigned Full Court rather than a single judge. This language recognises the practical consequence of the Full Court having been assigned. Where members of a Full Court have been assigned then the resources of the Court have been committed. The members of the Full Court are likely to have commenced consideration of the appeal materials. Indeed, the appeal may be underway when the issue of leave is raised. The efficiencies that would otherwise be gained by the question of leave being determined by a single judge no longer pertain.

14    These matters lead to the conclusion that the evident function of the requirement that the application for leave to appeal be determined by a single judge and the requirement for a direction by way of exception to that mandatory requirement is to ensure that, without a sufficient reason, a Full Court is not to be assigned unless and until leave has been obtained. The provision is directed to ensuring the demands on judicial resources that are involved in assigning additional judges are appropriately constrained. It is concerned with efficiency in the use of Court resources. Therefore, in my view, the notion that there may be efficiencies in having the leave application and any appeal determined together should not be overstated. To do so is to undermine the purpose of the requirement for leave.

15    Exceptionally, such efficiencies may be significant in those instances where the appellate jurisdiction is being exercised by a single judge (see s 25(1AA)). In those instances, there is likely to be inefficiency for the Court in calling on a judge to conduct two separate hearings. Consequently, by reason that the appeal is to be heard by a single judge, there is likely to be sufficient reason for listing the leave application and any appeal at the same time in any instance where the appeal is unlikely to be of any significant duration and the question of whether leave is to be given will turn substantially on whether there is sufficient merit in the appeal grounds.

16    Returning to instances where any appeal will be heard by a Full Court of three or more judges, it is possible to list the types of considerations that have been brought to bear in particular cases in deciding whether a direction should be made by a single judge that an application for leave to appeal should be heard and determined by a Full Court (whether separately or at the same time as any appeal): see Saraceni v Australian Securities and Investments Commission [2012] FCA 899 at [5] (McKerracher J), as applied in Kirsten v Miller as executor of the estate of Detlef John Kirsten [2023] FCA 1667 at [13] (Halley J). They include the novelty or importance of the points sought to be raised (including whether they are likely to be of wider application or to provide guidance on an important aspect of procedure). They also include efficiencies for the parties. However, for reasons I have given, efficiencies of that kind would not usually be sufficient in and of themselves to justify the making of a direction for the matter to be referred to a Full Court.

17    Each case must be adjudged on the basis that a direction should not be made unless the particular circumstances give rise to a sufficient reason to justify the exceptional course of convening a Full Court to deal with the leave application having regard to the purpose of the leave requirement. A view that the leave application and any appeal may be able to be determined at a hearing of not much greater duration than that required to deal with the leave application should not loom large in that assessment for reasons I have given.

18    The Q News Applicants advanced the following contentions as to matters that were said to support the making of a direction that the application for leave be heard and determined by a Full Court in the present case:

(1)    the proposed appeal raised an issue of general importance concerned with whether cooperation between different claim groups (and their legal representatives and funders) to form a single representative proceeding was said to be a positive or negative factor for determining competing stay applications to resolve a carriage dispute;

(2)    the subject matter of the proposed appeal was not a 'minor interlocutory squabble' but concerned the interests of group members because of the different financial arrangements proposed by the funders for each of the two representative proceedings (in circumstances where the funding arrangements for the proceedings brought by the Q News Applicants were said to be more favourable to group members than those applying to the funding of the proceedings brought by the Riverine Applicants);

(3)    a direction would lead to more efficient disposition of the application because it would avoid duplication; and

(4)    it could not be said that the proposed grounds were hopeless or unarguable.

19    The following statement from the joint reasons of Middleton and Beach JJ in Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107 at [13] is instructive for present purposes:

… applications for leave to appeal from the exercise of a discretionary judgment on a matter of practice and procedure require particular caution. And this is particularly so in the context of such applications seeking to challenge the resolution by a trial judge of the case management problems created by competing class actions. Such decisions are a matter of case management involving the exercise of a discretionary judgment. Further, such decisions commonly involve weighing up incommensurable and conflicting considerations. Further, different judges may weigh the relevant considerations differently. Consequently, there may be a range of potential solutions with no one right answer. Undoubtedly, reasonable minds might differ, and it is not enough that we may have a preference for a different resolution to that adopted at first instance. But having said that, the two matters upon which we granted leave to appeal were significant enough to warrant attention at appellate level in this evolving area.

20    There is now considerable authority as to the approach to be adopted in resolving a carriage dispute.

21    As to the subject matter of the proposed appeal, the proposed grounds allege errors in primary and secondary findings made by the primary judge. They do not allege any error in principle. Proposed ground 1 would allege error by the primary judge in the finding at PJ [116] where his Honour said:

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.

22    The alleged error is as to the factual finding. It is said that the evidence of the Riverine Applicants was that the arrangement reached between MBL and PFM (two firms of solicitors) was 'to avoid a carriage dispute'. Presumably, it is proposed to contend that a finding to that effect should have been made and it would have been consequential for the result. In that regard, I note that the primary judge regarded the arrangements between MBL and PFM as a matter that weighed against the proceedings by the Riverine Applicants being allowed to continue because of the additional costs associated with the agency arrangement between them: PJ at [117]. Additionally, I note that it is the position of the Riverine Applicants that the ground is based upon a misapprehension as to the contents of relevant affidavit material.

23    Nevertheless, it was submitted for the Q News Applicants that the appeal raised a point of principle as to whether cooperation between law firms should be regarded as a positive factor in carriage disputes. It was said that the primary judge had regarded it as a negative factor.

24    It was said that the reasoning in Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236; (2024) 76 VR 75 regarded it as a positive factor. Regard to the reasoning in Kajula at [107]-[113] shows that it was found that a record of past cooperative behaviour in the consolidation of proceedings could be an indicator of likely future cooperative behaviour in the conduct of representative proceedings. The conclusion reached as to that aspect was expressed as follows at [114] (Macauley, Lyons and Orr JJA):

Recognising that the factors that may be relevant for determining a multiplicity dispute cannot be exhaustively stated, and will vary from case to case, we are satisfied that cooperation, understood in this sense, may be a relevant factor in the resolution of multiplicity disputes.

25    On that basis, it was concluded that it was not an error of principle to have regard to cooperation in resolving multiplicity disputes: at [117]. There was no finding that cooperation to resolve a carriage dispute was required to be regarded as a positive factor in and of itself as distinct from its relevance to forming a conclusion as to likely future cooperation in the conduct of the representative proceedings.

26    It was the case that the primary judge had expressed the view that arrangements entered into between law firms (or litigation funders) for the purpose or with the effect of avoiding or limiting competition between them may give rise to competition law issues: PJ at [114]. However, ultimately, his Honour made no finding to the effect that the agency arrangement between MBL and PFM was made to co-operate rather than compete: PJ at [116]. Rather, as has been mentioned, his Honour found that there were additional costs associated with the arrangement and that counted against the Riverine proceedings.

27    Having regard to the above matters, I formed the view that it was difficult to see how there was a point of principle raised by the relevant ground and, if there was, how it might have significance for a challenge to the conclusion reached by the primary judge. No other point of principle was identified.

28    The reasoning by the primary judge involved the evaluation of a range of considerations that were considered to bear upon the interests of group members. It involved a balancing of various aspects of the evidence. The Q News Applicants suggested that the proposed appeal had significant consequences for group members because of the difference between the financial terms that would apply to the funding and conduct of the group proceedings by the two sets of applicants. However, there was no suggestion that the primary judge had failed to address that aspect or that it was a factor that overwhelmed other considerations. Further, no appeal ground suggested that there was a complaint that the other considerations brought to bear by the primary judge were irrelevant to the decision being made. This is an instance where any evaluation as to whether there was substantial injustice to group members will require a consideration of the very factors that were addressed by the primary judge. In those circumstances, it is appropriate for the Q News Applicants to be required to articulate on a leave application before a single judge the basis upon which it might be said that there is a risk of substantial injustice if the appeal grounds were not allowed to be pursued.

29    As to efficiency, for reasons I have given I did not consider the efficiencies that might be gained from a single hearing to be of separate significance. There must be other considerations that mean that the efficiencies for the Court of the general requirement that the leave of a single judge must be obtained before a Full Court is assigned are outweighed.

30    As to the significance of the contention that the proposed grounds were not hopeless or unarguable, it seemed to me that was not a matter that counted in favour of the making of a direction. Of course, the fact that, in a particular case, the proposed grounds appear to be hopeless or unarguable or generally lacking in any real merit might be a reason to decline to make a direction referring the application for leave to appeal to a Full Court. However, the opposite does not follow. It seems to me that it would only be where it could be said that it was likely that the leave application would succeed that the merits could be said to support the making of a direction that the leave application be heard and determined by a Full Court. Otherwise, the making of such a direction would need to be supported by other considerations.

31    Accordingly, I declined to make a direction referring the application for leave to appeal to a Full Court.

32    Finally, I note that the parties were offered dates in November 2025 for the hearing of the leave application. They all preferred that the matter be listed in February 2026.

Associate:

Dated:    1 October 2025