FEDERAL COURT OF AUSTRALIA
Riverine Grazier Pty Ltd v Google LLC [2025] FCA 895
File numbers: VID 1375 of 2024
VID 164 of 2025Judgment of: O'BRYAN J Date of judgment: 6 August 2025 Catchwords: REPRESENTATIVE PROCEEDINGS – Multiplicity of proceedings – where two “open class” representative proceedings commenced against same respondents raising similar issues – applications for stay of proceeding made – relevant principles – where group membership in one proceeding is a broader class than the other – where claims made in one proceeding have a broader scope than the other – where the proposed budget in one proceeding is higher and more realistic than the other – where the funding arrangements to support the costs of the litigation are more comprehensive and therefore more beneficial to group members in one proceeding
PRACTICE AND PROCEDURE – where a second firm of solicitors engaged to act in a representative proceeding pursuant to an agency agreement – likelihood of wasted costs – no evidence adduced explaining the reasons for the appointment – possibility that appointment reflects an anti-competitive arrangement between the solicitors and litigation funders – appropriate form of orders to avoid duplication of costs
Legislation: Competition and Consumer Act 2010 (Cth) ss 4, 4E, 5, 46, 47, Sch 2 s 21
Evidence Act 1995 (Cth) s 136
Federal Court of Australia Act 1976 (Cth) ss 23, 33C, 33H, 33V, 33Z, 33ZF, 37AE, 37AF, 37AG
Federal Court Rules 2011 (Cth) r 1.33
Cases cited: Air New Zealand Ltd v Australian Competition and Consumer Commission (2017) 262 CLR 207
Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304
BMW Australia Ltd v Brewster (2019) 269 CLR 574
Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374
Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1
DA Lynch v Star Entertainment Group [2023] VSC 561
Dyczynski v Gibson (2020) 280 FCR 583
Elliott-Carde v McDonald’s Australia Ltd (2023) 301 FCR 1
Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179
Galactic Seven Eleven Litigation Holdings LLC v Davaria (2024) 302 FCR 493
J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36
Kain v R&B Investments Pty Ltd [2025] HCA 28
Klemweb Nominees Pty Ltd (atf the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107
Lidgett v Downer EDI Ltd [2023] VSC 574
Outboard Marine Australia Pty Ltd v Hecar Investments (No 6) Pty Ltd (1982) 66 FLR 120
Perera v GetSwift Ltd (2018) 263 FCR 1
Perera v GetSwift Ltd (2018) 263 FCR 92
Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61
Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177
Ryan v Great Lakes Council (1997) 78 FCR 309
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- AGLC
- Riverine Grazier Pty Ltd v Google LLC [2025] FCA 895
- Case
- [2025] FCA 895
- Decision Date
CaseChat Overview and Summary
The court weighed several factors in its decision, including the scope of the group membership, the breadth of the claims, the realism of the proposed budgets, and the comprehensiveness of the funding arrangements. The court found that the Riverine proceeding had a broader group membership, a broader scope of claims, and more realistic and comprehensive funding arrangements. However, the court also noted that the Q News proceeding presented a coherent claim on behalf of Australian publishers that was not as coherently advanced in the Riverine proceeding. The court concluded that it was 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. The court imposed conditions on the Riverine proceeding to mitigate the risk of excessive and duplicative costs.
The court granted the Q News applicants leave to intervene in the Riverine proceeding for the purpose of the hearing and determination of their stay application. The court dismissed the Q News stay application, subject to certain conditions, including the requirement that the Q News applicants' lawyers conduct the proceeding in accordance with a Cooperative Litigation Protocol. The court also made orders regarding costs, suppression orders, and the appointment of an independent costs referee. The court ordered further case management to be listed for a future date.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 FACTORSThe parties’ positions regarding carriage 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. 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. 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 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. 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]). 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.