As you will have seen from the Court ordered post, the first instance Judgement by Justice Cheeseman on the Respondents Stay Application went against me.
I have filed an Application for leave to Appeal this Judgement and orders.
This appeal would be to the Full Court of the Federal Court of Australia (likely 3 Judges).
I need leave because this is not a final judgement, despite it seeming to be.
Because I or any other class member harmed by the Crypto Ad Ban can bring new proceedings (see Order 2), it is considered an interlocutory decision because it does not (legally) affect final rights.
I consider this Judgement to very problematic from an access to justice viewpoint, not just for the Crypto Class Action but for Australian competition law and class action litigants generally.
This is because the Judgement has both:
failed to give a substantive hearing to an important competition law case which has demonstrated a prima facie case and public interest;
failed to hear the first application for a No Adverse Costs order 38 months after it was first made.
It is important to note that justice is a process and many of the best and most important legal decisions are appeals that reverse first instance judgements. The Epic case and the case which established litigation funding in Australia (both of which were stayed at first instance) and other cases which I have been involved with and went to the High Court are but a few examples of this.
I have set out the Application for Leave to Appeal and Draft Notice of Appeal below:
Application for Leave to Appeal
The Applicant applies for leave to appeal from the judgment of the Federal Court of Australia given on 29 September 2023 at Sydney. Leave to appeal is required by section 24(1A) of the Federal Court of Australia Act 1976 (FCA).
Grounds of application
The permanent stay of representative proceedings where a prima facie case and public interest has been established raises a fundamental issue about access to justice under the scheme for representative proceedings established by Part IVA of the FCA.
The permanent stay inflicts substantial injustice on the Applicant and group members by extinguishing the only proceedings currently on foot for obtaining justice for the damage they have suffered and poses serious practical risk of stultifying the group member’s claims altogether.
The permanent stay inflicts substantial injustice upon the people of Australia by preventing the hearing on the merits of serious cartel and anti-competitive conduct claims against some of the largest and most influential companies in the world.
The Judgement is beset by numerous fundamental errors of law and fact, including clear misapplication of High Court authority, as set out in the draft Notice of Appeal attached.
Many of these errors of law establish concerning precedents that undermine core principles of the justice system including access to justice, equality before the law and compromise the efficacy of representative proceedings in advancing these important public policy goals.
In particular, the Judgement establishes a disturbing precedent that Courts may refuse to hear Representative Proceedings which have established a prima facie case and public interest unless “top tier legal representation [is] retained” (see paragraph 163 of the Judgement).
The Notice of Appeal raises important questions of law regarding conflicting and unresolved lines of High Court authority regarding duties of representative applicants to group members and the threshold for permanently staying proceedings properly brought.
The Notice of Appeal raises important questions of law regarding interpretation of High Court authority regarding the types of class action litigation funding and representation arrangements which are acceptable.
The Notice of Appeal raises important questions of procedural fairness regarding the operation of the “No Adverse Cost Order” scheme established by section 82(4-7) of the Competition and Consumer Act 2010 (CCA).
The Applicant has suffered substantial injustice, procedural unfairness and denial of natural justice from the failure of the Court to determine the Applicant's interlocutory application for a "No Adverse Costs Order", filed, on an urgent, as soon as practicable basis, on 27 Aug 2020, prior to, or as part of hearing the Respondent's stay applications determined 38 months later. This has exposed the Applicant to an adverse costs order (see Order 3 of the Judgement) and frustrated the No Adverse Cost Order scheme with significant consequences for access to justice for future potential litigants eligible for a No Adverse Costs Order.
Other applications
The Applicant requests an oral hearing of the application before the Full Federal Court.
The Applicant requests the Court urgently hear, as an interlocutory application to the appellate Court and prior to any other interlocutory applications in this appeal, and grant the Applicant a No Adverse Cost Order under s82(4) of the CCA.
Draft Notice of Appeal
The Appellant appeals from the whole of the judgment Federal Court given on 29 September 2023 at Sydney.
The appeal is brought by leave of the Court granted on [date]. A copy of the order giving leave is annexed to this notice.
Grounds of appeal
The Court erred, at J[124], in determining it had the power to permanently stay proceedings and thus refuse jurisdiction in circumstances where it had actively asserted jurisdiction, and determined that a prima facie case and public interest existed in Hamilton v Meta Platforms, Inc (Service out of Jurisdiction) [2022] FCA 681 (Hamilton (ServiceOut)).
The Court erred, at J[126-127], in determining it had the power to permanently stay proceedings properly brought and where a prima facie case had been established without actual abuse of process being established.
The Court erred, at J[111, 122], in exercising any discretion it had to stay by determining the threshold for permanently staying representative proceedings involving litigation funding is “real potential for abuse of process” rather than actual abuse of process where the role of the funder “has corrupted or is likely to corrupt the processes of the court.”
The Court erred in exercising any discretion it had to stay by failing to acknowledge that conflicts of interest are commonplace in funded representative proceedings and to establish that the conflicts it identified in these proceedings were substantially worse than those arising in traditionally funded and legally represented representative proceedings.
The Court erred, at J[163] in finding that the Applicant would be acting contrary to the interests of Group Members unless proceedings are resourced “at a level that permits top tier legal representation to be retained and comprehensive, experienced legal services, including in relation to expert evidence, to be supplied, that are appropriate to the complexity and scale of the proceeding”. Such a finding has devastating consequences for access to justice.
The Court erred in exercising any discretion it had to stay by preferring the Group Members theoretical potential interests over their actual practical interests (as demonstrated by the evidence).
The Court erred in exercising any discretion it had to stay by preferring the convenience of the Court in hearing matters with a full legal team of barristers and solicitors and the typical conflicts of interest over its duty to hear prima facie cases brought before it.
The Court erred in exercising any discretion it had to stay by failing in its obligation to explore or properly explore or adopt less extreme measures than a permanent stay to address or mitigate its concerns regarding conflict of interest. In particular, the Court failed to consider whether the identified conflicts of interest could be mitigated or managed by modifications to the existing funding/ representation arrangements and the Court failed to give the Applicant the opportunity to address identified problems after Judgement but before making orders.
The Court erred, at J[104], in determining that the Applicant in representative proceedings owes a broad and wide ranging duty not to act contrary to the interests of Group Members that is not limited to conduct that relates to exercise of powers or discretions under particular provisions of Part IVA of the FCA but extends to every aspect of the manner in which the representative applicant conducts his own claim, including resourcing and forensic decisions and which is not limited to the Group Member’s interests as a whole, nor to actual knowledge of particular Group Member’s interests which may conflict.
The Court erred in exercising any discretion it had to stay by failing to consider the impact such a broadly defined duty would have on the willingness of persons to become representative applicants and thus on the efficacy of Part IVA in providing access to justice.
The Court erred, at J[131], in exercising any discretion it had to stay by determining that the Applicant’s claim for relief is not co-extensive with the claims of Group Members when, on proper analysis of the nature of the Applicant’s cartel and anti- competitive conduct claims, the claims are co-extensive up and to including the establishment of liability and only diverge at the damages stage, after which the Applicant indicated to the Court that external legal representation would be appointed.
The Court erred, at J[124-125] in exercising any discretion it had to stay by failing to reconsider de novo the strength of the Applicant’s substantive claim on the basis of the substantial evidence resubmitted in this application and admissions of the Respondents, instead merely referring back to the relatively low threshold of prima facie case established in Hamilton (Service Out).
The Court erred, at J[177] in exercising any discretion it had to stay by failing to properly consider the public interest in a prima facie case of serious competition breaches with wide impact on the Australian public being given a substantive hearing and in failing to consider the evidence that the Applicant had made substantial attempts to raise funds to retain high quality lawyers and to interest the ACCC in bringing proceedings and that the choice of self representation was a last resort and thus prosecution of underlying claims by other methods was not a realistic possibility.
The Court erred in failing to determine the Applicant's interlocutory application for a "No Adverse Costs Order", filed 27 Aug 2020, prior to, or as part of hearing the Respondent's stay applications filed 26 months later and allowing this failure to crystallise in a permanent stay of proceedings which meant that this application would never be heard. This constituted a denial of procedural fairness and natural justice and frustrated the No Adverse Cost Order scheme with significant consequences for access to justice for future potential litigants eligible for a No Adverse Costs Order.
Orders sought
The Applicant seeks to have all the orders of 29 September 2023 set aside.
The Applicant seeks a No Adverse Cost Order under s82(4) of the CCA, as an interlocutory application to the appellate Court, to be heard prior to any other interlocutory application in relation to this appeal.