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

(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.

1. 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.

1. There is now considerable authority as to the approach to be adopted in resolving a carriage dispute.
2. 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.

1. 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.
2. 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.
3. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Accordingly, I declined to make a direction referring the application for leave to appeal to a Full Court.
8. 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.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.