FEDERAL COURT OF AUSTRALIA

Hamilton v Meta Platforms, Inc. [2023] FCA 1148

File number: NSD 899 of 2020

Judgment of: CHEESEMAN J

Date of judgment: 29 September 2023

Catchwords: PRACTICE AND PROCEDURE – application to

permanently stay proceedings under s 23 of the Federal
Court of Australia Act 1976 (Cth) or r 1.23 of the Federal
Court Rules 2011 (Cth) – where the representative
applicant is self-represented – where the representative
applicant is also the executive director and sole shareholder
of the litigation funder – where the representative applicant
is a legal practitioner but is not acting as a solicitor in the
proceeding – where the representative applicant has
financial interests in the outcome of the proceeding separate
to his claims as a representative applicant – whether a
permanent stay is required to prevent the administration of
justice from being brought into disrepute – Held:
application granted.

Legislation: Federal Court of Australia Act 1976 (Cth) ss 22, 23, 33N,
33ZE
Federal Court Rules 2011 (Cth) r 1.32, 10.43(4)(c)

Cases cited: Akai Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39;
188 CLR 418
Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2)
[2020] FCA 1355
Australian Competition and Consumer Commission v April
International Marketing Services Australia Pty Ltd (No 6)
[2010] FCA 704; 270 ALR 504
Australian Competition and Consumer Commission v
Yellow Page Marketing BV [2010] FCA 1218
Batistatos v Roads and Traffic Authority (NSW) [2006]
HCA 27; 226 CLR 256
Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582
Brady v NULIS Nominees (Australia) Limited atf the MLC
Super Fund [2021] FCA 999
BHP Group Limited v Impiombatao [2022] HCA 33
Campbells Cash and Carry Pty Limited v Fostif Pty Limited
[2006] HCA 41; 229 CLR 386
 Chen v Monash University [2016] FCAFC 66; 244 FCR
424
Clairs Keeley (a Firm) v Treacy (2004) 29 WAR 479
Clurname Pty Ltd v Commonwealth Bank of Australia [No
1] [2015] FCA 153
Clyne v NSW Bar Association [1960] HCA 40;104 CLR
186
Dyczynski v Gibson [2020] FCAFC 120; 280 FCR 583
Epic Games, Inc v Apple [2021] FCAFC 122: 286 FCR 105
Giannarelli v Wraith [1988] HCA 52; 165 CLR 543
Hamilton v Meta Platforms, Inc (Service out of
Jurisdiction) [2022] FCA 681
Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
Kayler-Thomson v Colonial First State Investments Limited
(No 2) [2021] FCA 854
Kelly v Willmott Forests (No. 4) [2016] FCA 323; 335 ALR
439
Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd
[1997] FCA 9; 72 FCR 261
Myers v Elman [1940] AC 282
NPP Australia Limited v Ripple Labs, Inc [2020] FCA
1237
Parkin v Boral [2022] FCAFC 47; 291 FCR 116
Paschke v Secretary, Department of Social Services [2023]
FCAFC 143
Perera v Getswift Ltd [2018] FCAFC 202; 263 FCR 92
PNJ v The Queen [2009] HCA 6; 83 ALJR 384
QGC Pty Ltd v Bygrave [2010] FCA 659; 186 FCR 376
Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
Rogers v The Queen [1994] HCA 42; 181 CLR 251
Timbercorp Finance Ltd (in liq) v Collins and Tomes
[2015] VSC 461
Timbercorp Finance Ltd (In Liq) v Collins and Tomes
[2016] VSCA 128
Timbercorp Finance Ltd (In Liq) v Collins and Tomes
[2016] HCA 44; 259 CLR 212
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256
CLR 507
UBS AG v Tyne as trustee of the Argot Trust [2018] HCA
45; 265 CLR 77
Wigmans v AMP Limited [2021] HCA 7; 270 CLR 623
Williams v Spautz [1992] HCA 34; 174 CLR 509
Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
Victoria International Container Terminal Ltd v Lunt

Hamilton v Meta Platforms, Inc. [2023] FCA 1148

 [2021] HCA 11; 271 CLR 132

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Number of paragraphs: 190

Date of last submissions: 31 January 2023

Date of hearing: 2 – 3 February 2023

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Mr M Darke SC and Ms K Lindeman

Respondent:

Solicitors for the First Corrs Chambers Westgarth

Respondent:

Counsel for the Second Mr R Yezerski

Respondent:

Solicitors for the Second Herbert Smith Freehills

Respondent:

Hamilton v Meta Platforms, Inc. [2023] FCA 1148

 ORDERS

NSD 899 of 2020

BETWEEN: ANDREW PAUL STUART HAMILTON

Applicant

AND: META PLATFORMS, INC.

First Respondent

GOOGLE LLC
Second Respondent

ORDER MADE BY: CHEESEMAN J

DATE OF ORDER: 29 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. This proceeding (NSD899/2020) is permanently stayed.

2. For the avoidance of doubt, the permanent stay of this proceeding does not prevent the
claims the subject of this proceeding from being brought by the applicant or group
members in another proceeding.
3. The applicant pay the respondents’ costs of the interlocutory applications as agreed,
or failing agreement as assessed by a Registrar of the Court on a lump sum basis.
4. The parties be granted leave to apply to vary order 3 by filing and serving
submissions (of no more than 3 pages) in support of any variation they contend for
within 5 business days of these orders.
5. In the event that a party applies to vary order 3 by filing and serving submissions
under order 4:
(a) The opposing party or parties is/are to file and serve any submissions in
response (of no more than 3 pages) within 5 business days of service on them
of the submissions under order 4;
(b) The party or parties served with submissions under paragraph (a) is/are to file
and serve any submissions in reply (of no more than 2 pages) within 3 business
days of service on them of the first mentioned submissions.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 i

6. The submissions referred to in Orders 4 and 5 should be easily legible using a font
size of at least 12 points and one and a half line spacing throughout, including in any
footnotes and annexures.
7. The applicant is to give notice to Group Members and SUFB Token Holders of the
orders which I have made in determining the present applications and provide a link to
the reasons for judgment when published on the Court’s website.
8. The form in, and means by, which the notice in Order 7 is to be given are to be agreed
by the parties and a proposed short minute of order in relation thereto is to be provided
to my Associate within 5 business days of these orders, with any areas of disagreement
to be indicated in mark up.
.Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 ii

 REASONS FOR JUDGMENT

CHEESEMAN J

INTRODUCTION
1 These reasons concern interlocutory applications brought by the respondents, Meta Platforms,
Inc. formerly Facebook, Inc. and Google LLC, as first and second respondents respectively,
seeking identical relief, namely, that the substantive proceeding be permanently stayed, or
alternatively, an order that the proceeding not continue as a representative proceeding under
Part IVA of the Federal Court of Australia Act 1976 (Cth).

2 The substantive proceeding is a representative proceeding commenced by Mr Hamilton, as

representative applicant, under Part IVA of the Act against Meta and Google. Mr Hamilton
refers to the proceeding, and promotes the proceeding, using the description “the Crypto Ad
Ban Case”. Mr Hamilton is self-represented. He qualified as a lawyer but is not the solicitor on
the record in this proceeding. There is no solicitor on the applicant’s side of the record.

3 Mr Hamilton was successful in obtaining leave to serve out of the jurisdiction following an
ex parte application: Hamilton v Meta Platforms, Inc (Service out of Jurisdiction) [2022] FCA
681 (Hamilton (Service Out)). Familiarity with the reasons in the Hamilton (Service Out)
decision is assumed for the purpose of these reasons.

4 In obtaining leave to serve out of the jurisdiction, Mr Hamilton was required under the then
requirements of r 10.43(4)(c) of the Federal Court Rules 2011 (Cth) to establish that he has a
prima facie case in relation to at least one cause of action or remedy claimed in the proceedings.
Although Mr Hamilton brought the application in respect of representative proceedings, he did
not need to establish a prima facie case in respect of all potential categories of group members.
For the purpose of that application, it was sufficient for Mr Hamilton to establish that he, as a
group member, had a prima facie case in respect of one of his pleaded claims. That requirement
is “not particularly onerous”: Australian Competition and Consumer Commission v Yellow
Page Marketing BV [2010] FCA 1218 at [23] (Gordon J, when her Honour then was on this
Court). A prima facie case is made out where, upon a broad examination rather than an intense
scrutiny of the material before the Court, inferences are shown to be open which, if translated
into findings of fact, would support the relief claimed: Australian Competition and Consumer
Commission v April International Marketing Services Australia Pty Ltd (No 6) [2010] FCA
704; 270 ALR 504, 507 at [8] (Bennett J) and the cases cited therein. A detailed analysis of the

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 1

 evidence is not called for: NPP Australia Limited v Ripple Labs, Inc [2020] FCA 1237 at [27]
(Burley J). Mr Hamilton succeeded on the ex parte application in establishing that findings of
fact were available and inferences were open to be drawn that established a prima facie case
for the relief claimed in respect of one of the claims pleaded. The decision did not require or
extend to a substantive assessment of the merits of the claims pleaded.

5 The claims against Meta and Google can be traced to the period between 29 January 2018 and
about July 2018 during which it is alleged that Facebook and Google each introduced measures
which prohibited, or substantially restricted, advertising related to cryptocurrency and, more
broadly, the cryptocurrency industry. Mr Hamilton alleges that the restriction on advertising
applied not only on the Facebook and Google platforms but also affected advertising on other
platforms that sourced their advertising content from Facebook and/or Google. The restrictions
on advertising about which Mr Hamilton complains were progressively modified by each of
Facebook and Google, with the most recent modifications alleged to have taken effect in May
2019 (Facebook) and sometime between October 2018 and September 2019 (Google).
Mr Hamilton seeks relief in respect of alleged contraventions of the Competition and Consumer
Act 2010 (Cth) (the CCA) (including in respect of restrictive trade practices, misleading and
deceptive conduct and accessorial liability) and tortious conduct (including deceit, malicious
falsehood and conspiracy): Hamilton (Service Out) at [3]. Mr Hamilton alleges that the
respondents’ conduct substantially reduced the advertising opportunities available to the
cryptocurrency industry, including those persons engaged in the supply of cryptocurrency
related goods and services.

6 The proceeding is funded by JPB Liberty Pty Ltd (or the Funder). Mr Hamilton is the sole
shareholder, one of the two directors and Chief Executive Officer of the Funder. The other
director, Maree Carmel Hamilton, is a non-executive director and is Mr Hamilton’s mother.
Mr Hamilton says that JPB Liberty has entered into a formal written litigation funding
agreement (LFA) with approximately 650 Group Members, defined in the LFA as Funded
Class Members. JPB Liberty has a right to partake in the Funded Class Members’ share of any
proceeds of the litigation. One of the means by which JPB Liberty is funding the litigation is
by issuing crypto tokens known as “Sue Facebook Tokens” (SUFB Tokens). SUFB Tokens
are issued as a reward for financial and non-financial contributions to the litigation. The holders
of SUFB Tokens have a right to participate in any proceeds of the proceeding. The participation
rights of both JPB Liberty and SUFB Token Holders are defined in the LFA.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 2

7 Mr Hamilton brings the proceeding on his own behalf and on behalf of Group Members as
defined in the further amended originating application. The definition of Group Members is
very broad – it includes persons who “owned, controlled, or had legal entitlements whose value
was based on the price of” specified cryptocurrencies during the period from 29 January 2018
to the present (the relevant period). The list of specified cryptocurrencies numbers 33 in total
and includes Bitcoin, Ethereum, and ZCash. The definition of Group Members extends to seven
other categories of person having a connection of some sort with the supply of goods or services
relating to cryptocurrency. The class is not limited to persons who have signed funding
agreements with JPB Liberty. Group Members are defined as an “open class” – persons who
did not know about the proceeding or consent to becoming a Group Member when the
proceeding was commenced will be included in the class: Clurname Pty Ltd v Commonwealth
Bank of Australia [No 1] [2015] FCA 153 at [4] (Foster J).

8 For purposes of the present applications, it is not necessary to recount the detail of each
category captured by the Group Members definition other than to observe that the definition’s
reach is extensive – it will cover a large and geographically diverse group of persons. For
example, the subcategory of Group Members who owned or controlled one or more of the 33
specified cryptocurrencies is not geographically limited and will include any person in the
world that owned any of the specified currencies in the relevant period. The Group Members
definition also includes “Persons who provided specialised cryptocurrency related professional
advice” and “Persons who published media websites or video channels on websites such as
YouTube or organised conferences or events specialising in cryptocurrency related content
during the Relevant Period”. In bringing this proceeding as representative applicant,
Mr Hamilton submits that he is acting on behalf of Group Members numbering in the “millions
in Australia and tens of millions spread all over the world”. Many, if not the vast majority, of
the Group Members will have no knowledge of the proceeding.

9 In applying for a permanent stay, the respondents contend that to permit the proceeding to
continue in its current form would bring the administration of justice into disrepute for two
principal reasons. First, Mr Hamilton is in an intractable position of conflict vis-à-vis Group
Members such that continuation of the proceeding with him as representative applicant, sole
shareholder and Chief Executive Officer and director of the Funder, and without the benefit of
legal representation, will bring the administration of justice into disrepute. Secondly, the
manner in which Mr Hamilton’s interest in the proceeding has been structured involves him in,

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 3

 in substance, obtaining prohibited contingency fees through the issuance of SUFB Tokens to
him by JPB Liberty as a reward for his non-financial contributions to the litigation.

10 It bears emphasis at the outset that the respondents acknowledge that if a permanent stay is
granted it would not preclude the underlying claims against the respondents being pursued in
other proceedings, including a different representative proceeding, if such proceedings were
otherwise properly constituted and were conducted in a way that did not bring the
administration of justice into disrepute. When a class action is commenced, the running of any
limitation period is suspended and does not begin to run again until either the group member
opts out of the proceedings or the proceedings are finally determined: s 33ZE of the Act.

11 As an alternative form of relief, the respondents seek a de-classing order under s 33N of the
Act on the basis that Mr Hamilton is not capable of adequately protecting Group Members’
interests. The respondents submit that there are two reasons why Mr Hamilton cannot
adequately protect Group Members’ interests. First, he is prevented from doing so because of
his pervasive conflicts of interest. Secondly, because he is not equipped to do so having regard
to the way in which the claims advanced in this proceeding are framed, coupled with the
complexities inherent in representative proceedings generally, and the specific complexity of
the present proceeding. Mr Hamilton resists the de-classing order, contending that s 33N does
not provide a general power to de-class due to alleged conflicts of interests arising from
litigation funding arrangements. He further submits that it would not otherwise be in the
interests of justice to de-class the proceeding.

CONCLUSION IN SUMMARY FORM

12 For the reasons which follow, I am satisfied that this proceeding should be permanently stayed
for the first reason advanced by the respondents. To permit the proceeding to continue in the
current form would bring the administration of justice into disrepute. Although Mr Hamilton
sought to advance a number of ways in which the proceeding may be managed so as to mitigate
the issues identified by the respondents, I am not satisfied that the conflicts inherent in
Mr Hamilton’s multi-faceted interests in the proceeding are capable of being appropriately
managed, including by the means he has put forward in his submissions on this application.

13 Having reached this conclusion, it is not necessary to consider the respondents’ applications in
the alternative for a de-classing order pursuant to s 33N of the Act.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 4

 EVIDENCE
14 In support of its application, Meta relies on two affidavits of Mark Anthony Wilks, solicitor
for Meta, affirmed on 8 November 2022 and 6 December 2022. Meta also tendered two
exhibits to those affidavits. Google relies on an affidavit of Leon Chung, solicitor for Google,
affirmed on 12 October 2022, and one exhibit thereto. Google and Meta’s evidence was
admitted without objection. Evidence in one application is evidence in the other.

15 Mr Hamilton relies on two affidavits. First, his own affidavit sworn 20 November 2022 and an
exhibit thereto. Secondly, an affidavit of David Hans Lange sworn 20 November 2022 and the
annexure thereto. Mr Hamilton also relies on an amended conflicts of interest policy dated
3 February 2023 for JPB Liberty and tendered on 3 February 2023. Mr Hamilton’s evidence
was admitted without objection. Mr Hamilton’s evidence is an amalgam of evidence and
submission and I will treat it as such. In the course of the hearing, Mr Hamilton also read in
the whole of tab 20 of the court book, being the Applicant’s Concise Court Book for service
application dated 14 July 2021, which included his affidavits sworn on 27 August 2020,
6 September 2020, 10 December 2020, 1 March 2021 and 12 July 2021. Google objected to
various portions of the material seeking limitations for those portions to be treated as
submission. Mr Hamilton agreed to those limitations and I will treat those portions as
submissions.

FACTUAL BACKGROUND

Overview of Mr Hamilton’s involvement and interest in the proceeding

16 At the heart of this application is the respondents’ attack on Mr Hamilton’s pervasive conflicts
arising from his numerous duties and interests. To elucidate the nature and extent of the
conflicts it is useful to begin by enumerating the various roles Mr Hamilton has in, or in
connection with, the proceeding.

17 First, Mr Hamilton is the representative applicant, he is referred to as the Representative in the

LFA. He resides in Israel. It is convenient to extract the broad description of Mr Hamilton’s
claims from Hamilton (Service Out) at [22]:

22 Mr Hamilton’s overarching contention is that the Ad Ban Provisions caused a

substantial reduction in advertising opportunities for cryptocurrency-related
goods and services which resulted in a substantial reduction in demand for
those goods and services. Mr Hamilton contends that the operation of the Ad
Ban Provisions has resulted in the loss of a “substantial economic benefit”
from the cryptocurrency industry, which has in turn caused group members to
suffer loss or damage, of which his personal claim is an example. Broadly, and

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 5

 without being exhaustive, Mr Hamilton claims he suffered loss occasioned by:
(1) a reduction in the profitability of cryptocurrency mining, which was the
primary business of Green Freedom Limited (Israel), a company wholly owned
by Mr Hamilton; (2) diminution in the value of his investment in STEEM, a
cryptocurrency, which Mr Hamilton contends experienced severe decline
following the introduction of the Ad Ban Provisions; (3) loss of the business
opportunity to operate a successful cryptocurrency consulting practice
specialising in investment in the cryptocurrency industry which Mr Hamilton
says he established with his wife under the name, Grant Hamilton Crypto
Advisory, before introduction of the Ad Ban Provisions; and (4) a reduction in
the value of his unsold cryptocurrency holdings.

18 Mr Hamilton frames his claim as a claim for damages, including aggravated damages and
exemplary damages, under s 82(1) of the CCA and s 22 of the Act respectively, declaratory
relief under s 163A of the CCA and/or s 21 of the Act, a permanent injunction under s 80 of
the CCA requiring the respondents to cease the alleged contravening conduct and other relief
under s 87(1) of the CCA including a public apology and the provision of certain services to
group members at no cost, and without restriction, for a period of time equal to the period of
the alleged contravening conduct. An asserted source of loss included in the [FASOC] is a
claim for “loss of amenity for users of blockchain based social media platforms”. Mr Hamilton
submits that his cryptocurrency holdings were relatively small (under A$10,000) compared to
other Funded Class Member who had holdings in the US$1 to 10 million range in the early
2018 period for which the majority of market based causation damages are claimed. This
submission is advanced by Mr Hamilton in the context of seeking to justify his various interest
in any litigation proceeding derived from the funding arrangements in place.

19 Secondly, Mr Hamilton appears as a litigant in person, that is, a self-represented litigant.

Although Mr Hamilton was admitted as a solicitor of the Supreme Court of New South Wales
in 1996 and entered the register of legal practitioners of the High Court of Australia in 2005,
Mr Hamilton is not the solicitor on the record in this proceeding. He describes himself as a
litigant in person who happens to have legal experience and is adamant that he is not acting as
a solicitor or barrister for anyone in this proceeding. As mentioned, there is no solicitor on the
record. Despite the fact that the LFA and the JPB Liberty Conflicts of Interest Policy (CMP)
both refer to the role that “Lawyers” are intended to play in relation to the arrangements
between Mr Hamilton, JPB Liberty, and others interested in the litigation on the applicant’s
side of the record, no lawyers are presently retained to perform the role(s) allocated to the
“Lawyers” under the LFA and CMP. Mr Hamilton is controlling and directing the way in which
the proceeding is conducted on the applicant’s side of the record.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 6

20 Thirdly, as mentioned, Mr Hamilton is the sole shareholder of the Funder and as such has a
financial interest in the Funder and through the Funder in the Funder’s interest in any litigation
proceeds.

21 Fourthly, in addition to being the sole shareholder of the Funder, Mr Hamilton is one of two
directors of the Funder. He is also the Funder’s Chief Executive Officer. As mentioned, the
other director is a non-executive director and is his mother. The Funder is under Mr Hamilton’s
control.

22 Fifthly, Mr Hamilton controls JPB Liberty’s Hive accounts “@jpbliberty” and “@jpbliberty1”.
Mr Hamilton describes Hive as a decentralised, blockchain based content sharing platform,
akin to a social media network. The Hive platform is the one of the main ways in which
Mr Hamilton communicates with Group Members and others about this proceeding, amongst
other things. Mr Hamilton thus controls communication in relation to the proceeding with
Group Members through his control of JPB Liberty and his operation of the relevant Hive
accounts.

23 Sixthly, Mr Hamilton is the “Representative” under the LFA. “Representative” is defined as a

Funded Class Member who is a representative applicant or plaintiff in the Class Action. In
addition to the control he has over the conduct of the proceeding by virtue of his status as
representative applicant, as the Representative under the LFA, Mr Hamilton is given express
authority to control the conduct and direction of the proceeding in a number of ways including
authority to determine which claims will be pursued in the proceeding at any stage.

24 As the Representative, he is responsible in consultation with JPB Liberty, the Lawyers and
Counsel, to determine whether an application for a Common Fund Order will be made: cl 4.1,
LFA. As mentioned, this proceeding is brought on behalf of Group Members who are part of
an “open class” as defined in the further amended originating application dated 26 November
2021. Clause 4.3.1 of the LFA provides a mechanism for automatically amending the LFA to
avoid conflict with any Common Fund Order made. Common Fund Order is defined to mean
where the Class Action is pursued on an “open class” basis, and in the course of those
proceedings the Court makes orders requiring all Class Members (whether Funded Class
Members or not) to pay to JPB Liberty a percentage of a common fund comprising any amounts
they may receive in any settlement or judgment in the proceeding (including any Litigation
Proceeds) or any other amount, as approved by the Court.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 7

25 Seventhly, Mr Hamilton is the sole arbiter in relation to the issue of SUFB Tokens. The number
of SUFB Tokens to which a person is entitled by reason of their financial or non-financial
contribution to the litigation is at Mr Hamilton’s “sole discretion as sole shareholder of
JPB Liberty”. In response to questions posed by the respondents, Mr Hamilton confirmed that
where the relevant contribution is financial, SUFB Tokens are “issued or sold at a price
determined by [Mr Hamilton] reflecting the stage of preparation for proceedings and progress
of proceedings.” Mr Hamilton has further confirmed that where the relevant contribution is not
financial, SUFB Tokens “issued or transferred for non-financial contributions were assessed
by [Mr Hamilton] on a discretionary basis according to [his] determination of value of each
contribution and sometimes with input from the recipient.” Mr Hamilton is frank in
acknowledging that to date, his decisions to issue SUFB Tokens for financial or non-financial
contributions have been “made on a purely discretionary basis, without documenting the basis
or the policies and procedures”. He says that as sole shareholder and director of JPB Liberty
he made these decisions “on a discretionary basis to advance the proceedings.” Mr Hamilton’s
control over the terms on which the proceeding is funded is both through his control over
JPB Liberty and his oversight of the issuance of SUFB Tokens.

26 Relatedly, Mr Hamilton, or persons associated with him, hold a substantial number of the
SUFB Tokens currently on issue. In correspondence Mr Hamilton asserts that as at 23 October
2022, approximately 48% of the SUFB Tokens on issue were held by him or persons associated
with him. There was some debate about the accuracy of this figure. It was common ground that
Mr Hamilton, or persons associated with him, hold a substantial number of the SUFB Tokens
currently on issue. I have approached my consideration of the present applications on that basis.
As a consequence of his control over the issuance of SUFB Tokens, Mr Hamilton has caused
JPB Liberty to issue a substantial number of SUFB Tokens to himself for what he describes as
the financial and non-financial contributions he has made to the litigation.

27 Based on the above analysis, it is plain that Mr Hamilton, has a financial interest in the litigation
that significantly exceeds his own claim for relief in the proceeding. It is also plain that
Mr Hamilton is able to exert control over the way in which the claims pursued in the proceeding
are framed and resourced, and whether individual categories of claims are pursued or continued
in the proceeding. Finally, Mr Hamilton also has significant control over the ultimate
distribution of a substantial proportion of any litigation proceeds because he has complete
control over the issuance of SUFB Tokens and the terms on which the tokens are issued for
financial and non-financial contributions.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 8

 The funding arrangements
28 It is next necessary to address the funding arrangements in more detail.

Litigation Proceeds
29 The LFA defines “Litigation Proceeds” as:

…any money, benefits, services and/or, if JPB Liberty so accepts pursuant to clause
7.8, any Specified Property, for which any Claim and/or Proceeding is Settled, or for
which Judgment is given, in favour, or otherwise for the benefit (directly or indirectly),
of You or an External Controller of You, and includes:
(a) any interest (including any interest earned on money while held in the
Trust Account);
(b) any costs recovered pursuant to a Costs Order or by agreement;
(c) any ex gratia payments or any compensation (whether statutory or
otherwise) directly or indirectly in relation to the Claims; and
(d) if a Respondent (or any property, assets or liabilities of any
Respondent) is, or comes, under the control of an External Controller,
any amounts or property distributed or paid by the External Controller
of such Respondent in relation to the Claims or any Settlement or
Judgment in respect thereof.

30 Clause 7.8 of the LFA provides:

7.8. The parties agree that their preference is for the Claims to be resolved for an
amount of money and agree that JPB Liberty is, so far as possible, to receive
its share of any Litigation Proceeds by way of cash payment out of any
monetary component of any Litigation Proceeds. However:
7.8.1. JPB Liberty may decide, in consultation with You (or, if the Claims
are to be Resolved as part of a Class Action, the Representative) and
the Lawyers but in JPB Liberty’s sole discretion, to accept that a
Litigation Proceeds may consist, in whole or in part, of specified
property other than money (Specified Property); and, if so,
7.8.2. JPB Liberty must notify You (or the Representative, where applicable)
and the Lawyers, in writing, of its decision and identify the Specified
Property.

31 Pursuant to cl 7.8, JPB Liberty is authorised to determine in its sole discretion whether a
settlement may be by way of, or include, a non-monetary component. If a settlement includes
a monetary and non-monetary component, JPB Liberty is entitled “so far as possible” to receive
its share of the Litigation Proceeds by cash payment out of the monetary component.
Clause 7.11 provides that:

7.11 In the event the monetary component of any Litigation Proceeds is insufficient
to pay JPB Liberty and the Token Holders their full entitlements under this
Agreement despite the Lawyers selling as much of the Specified Property for

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 9

 cash as possible, JPB Liberty and You shall use their best endeavours to agree
on the way in which the non-monetary component of the Litigation Proceeds
is to be fairly valued and shared between them (and, if applicable, the Lawyers
in relation to any Remaining Costs) so as to ensure that JPB Liberty and the
Token Holders receive, in total, from the Litigation Proceeds their full
entitlements under this Agreement and, once having reached agreement,
instruct the Lawyers to give effect to it accordingly. JPB Liberty will pay the
Lawyers’ reasonable costs and expenses incurred in assisting the parties under
this clause 7.11 as part of the Litigation Costs.

32 The LFA provides that the Litigation Proceeds will be paid into the “Lawyers” (as defined)
trust account. Lawyers is defined as (as written):

Lawyers means the firm of Australian solicitors selected by JPB Liberty to either be
the solicitor on the record for the Proceedings or to advise and assist the
Representative, where the Representative chooses to be self-represented via an director
who is an experienced Australian legal practitioner, or any other solicitors appointed
in their place in accordance with this Agreement…

33 The statement that “where the Representative chooses to be self-represented via an director
who is an experienced Australian legal practitioner” does not make sense. The present
circumstances are that Mr Hamilton is “self-represented”. There is no solicitor on the record.
There is no suggestion that “Lawyers” have been appointed to advise or assist Mr Hamilton.
Mr Hamilton is not “self-represented via an director who is an experienced Australian legal
practitioner”. He is each of these things — “self-represented”, a “director” of the Funder and
by his own account “an experienced Australian legal practitioner”. To the extent that the clause
suggests that there is some independent person Mr Hamilton is operating “via” this is not the
case. Mr Hamilton has not engaged legal advisers. In conducting the proceeding, he is not
aided, or in receipt of advice or assistance by independent legal representatives with a primary
duty to the Court.

34 In Mr Hamilton’s submissions on this application, he did not suggest that as a litigant in person
who is also admitted as a legal practitioner that he regarded himself as owing a primary duty
to the Court. To be clear he was silent on this issue. He did recognise that legal representatives
appearing for the parties in representative proceedings owed what he described as a derivative
obligation as officers of the court to protect group members’ interests. He was however clear
that he did not regard himself as acting as a legal representative in the proceeding. Even if he
does regard himself as an admitted practitioner as owing a primary duty to the Court, he
eschews that he is acting as a legal practitioner for the applicant or group members.

35 The LFA provides that, after reimbursement of “Litigation Costs” and GST, any Litigation
Proceeds are next to be applied to payment of a “Funding Commission”.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 10

 Funding Commission
36 The Funding Commission is comprised of two components.

37 The first component is a commission payable to JPB Liberty of 5% of the Litigation Proceeds
(save where the balance of the Litigation Proceeds after the payment of Litigation Costs is
insufficient to pay all of the Funding Commission payable under the LFA, in which case the
Funding Commission is reduced to 16.667% of the balance). The second component of the
Funding Commission is a commission of 25% of the Litigation Proceeds which is payable in
aggregate to SUFB Token Holders (save where the balance of the Litigation Proceeds after the
payment of Litigation Costs is insufficient to pay all of the Funding Commission payable under
the LFA, in which case the Funding Commission is reduced to 83.333% of the balance).

38 The SUFB Tokens are described on JPB Liberty’s website as follows:

Web 3.0 Litigation Funding

In Web 3.0 Litigation Funding, each Class Action is funded by a Crypto Token sale.
25% of damages awarded in the Class Action (after costs) will be paid out to Token
holders and 5% to JBP [sic] Liberty. The Tokens will be listed on Crypto exchange(s)
providing liquidity for token owners during the lengthy litigation process.
A New Asset Class
JPB Liberty has created a new asset class, enabled by Web 3.0 technology:
 direct investment in individual high value class actions
 via a publicly tradable, liquid crypto token
 providing a share in the proceeds of successful claims
 with payout in A$, US$ or cryptocurrency at successful case conclusion.
Traditional litigation funding only allows investment on a portfolio basis with
conservative case selection via private equity or the few publicly listed litigation
funders.
A Tradable Token
The “Sue Facebook” Token (SUFB) is currently listed on the Hive-Engine
decentralised exchange. A Hive cryptocurrency account is required to use this
exchange so all SUFB token holders are eligible class members under the Crypto Class
Action. This will provide investors the ability to trade in and out of the token during
the years it may take to bring the case to conclusion.
…
How it Works
The first token for the Crypto Ad Ban Case is the “Sue Facebook” Token (SUFB). It
is a Hive Engine token on the Hive blockchain.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 11

 These tokens will collectively have the right to 20% - 30% (depending on the case) of
the total damages pool of all class members who have signed the Funding Agreement
with JPB Liberty. The precise entitlement of each token will depend on the total
number of tokens issued (fixed for each case) and the percentage of damages allocated
to token holders in the Funding Agreement.
Investors will purchase these tokens from JPB Liberty with cryptocurrencies such as
Bitcoin & Ethereum and will receive tokens which sit in their Hive wallet. These
cryptocurrency funds will be used by JPB Liberty to fund the running of the class
action. JPB Liberty will generally retain a percentage of the tokens itself and the total
amount raised will be capped to the needs of the case (generally less than $10 million).
During the case, investors may trade their tokens on crypto exchanges where they are
listed. It is expected that the market value of each token will reflect the market’s
assessment of the likely payout on the token at the conclusion of the litigation. JPB
Liberty will provide updates for class members and token holders on significant
developments as the litigation proceeds.
On successful conclusion of the case (Court ordered damages or settlement) investors
will be paid out their share of the damages pool according to their token holdings and
paid out tokens will be destroyed. The form of payment will likely be A$ or US$, but
an investor may request payment in cryptocurrency. Exact details will depend on the
terms of settlement and Court orders at the conclusion of the case.
On unsuccessful conclusion of the case (final adverse Court decision or discontinuance
of proceedings) any remaining funds from the token sale after payment of all costs,
including the other side’s costs, will be returned to token holders on pro rata basis in
proportion to their holding…

39 The terms on which SUFB Token Holders are entitled to participate in the “Litigation
Proceeds” in the Crypto Ad Ban Case are set out in the LFA as described above. Through these
arrangements persons who stand to benefit from the payment of any Funding Commission
include those persons who hold SUFB Tokens at the relevant time.

40 At present, Mr Hamilton’s evidence is that a total approaching 3 million SUFB Tokens have
been issued. As mentioned, Mr Hamilton is one of the largest holders, if not the largest holder,
of SUFB Tokens through his direct and related holdings. According to documents produced by
Mr Hamilton, he presently holds about 297,000 SUFB Tokens personally, his family’s
superannuation fund owns about a further 20,000 SUFB Tokens, and his family members hold
about a further 67,000 SUFB Tokens. The largest holder of SUFB Tokens is JPB Liberty. It
appears to own slightly more than about 2 million SUFB Tokens. JPB Liberty holds over two
thirds of all the SUFB Tokens on issue.

41 JPB Liberty has resolved that any SUFB Tokens retained by it in its @jpbliberty1 Hive account
will be “burnt” prior to any “Resolution” (which is defined in the LFA as the time at which any
Litigation Proceeds are received). JPB Liberty has confirmed that resolution in what is
described as public internet posts. The LFA and CMP do not refer to JPB Liberty having any

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 12

 obligation to burn any SUFB Tokens retained by it prior to any “Resolution”. Leaving aside
the question of whether that resolution (or its publication) creates any binding obligation on
JPB Liberty to act consistently with it, the apparent intended effect is that all SUFB Tokens
remaining with JPB Liberty at the time of any Resolution will be destroyed, with the result that
the total body of SUFB Tokens will be reduced to only those SUFB Tokens issued by
JPB Liberty to persons or entities other than JPB Liberty. In that event, the 25% Funding
Commission payable to Token Holders would be shared by Token Holders other than
JPB Liberty (whose tokens will be “burnt”).

42 Funds raised by initial issuance are to be used to fund the proceeding and any residual issuance
funds held by JPB Liberty at the conclusion of the proceeding after payment of all costs are to
be returned to Token Holders on a pro rata basis in proportion to their holdings. Prior to any
Resolution, JPB Liberty is able to trade in or finance against its holding of SUFB Tokens as an
alternative to, or in addition to, issuing SUFB Tokens at Mr Hamilton’s direction in his capacity
as the Representative. I was not taken to any part of the arrangements that suggested that when
Token Holders, including JPB Liberty, sell SUFB Tokens in secondary trading that they are
obliged to apply the proceeds of such sales to funding the present proceeding. On JPB Liberty’s
website it is acknowledged that during the case, investors may trade their tokens on crypto
exchanges where they are listed and that it is expected that the market value of each token will
reflect the market’s assessment of the likely payout on the token at the conclusion of the
litigation. In this context, JPB Liberty acknowledges on its website that it will issue “updates
for class members and token holders on significant developments as the litigation proceeds”.

43 JPB Liberty has an interest in controlling the timing of new issuance with a view to the price
of SUFB Tokens in any secondary trading. In the CMP, (at cl 3.2), it is recognised that because
JPB Liberty’s funding model relies upon the sale of a share in the Litigation Proceeds to Token
Holders, conflicts of interest involving the Token Holders must be taken into account. It is then
asserted that the Token Holders’ interests are generally the same as those of JPB Liberty.
Depending on the circumstances, that may or may not be correct — it may be in JPB Liberty’s
interests at a particular time for tokens to be trading at a premium, and at other times, for tokens
to be trading at a discount. As the major token holder, there is potential for JPB Liberty’s
interests in relation to the trading and issuance of SUFB Tokens to diverge and conflict with
those of minority holders. Because of the confluence in the position of JPB Liberty as the issuer
of SUFB Tokens and Mr Hamilton’s authority as Representative under the LFA to determine
the terms of issuance and to whom tokens are issued, Mr Hamilton has at his disposal an ability

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 13

 to take steps to avoid his and his associates holding in SUFB Tokens being diluted. This is a
potential source of conflict between Mr Hamilton and minority Token Holders. It has the
potential to impact the funding of the proceeding to the extent that the funding is derived from
Token issuance and in this way potentially impact Group Members’ interests even though the
majority of Group Members are not Token Holders.

44 For present purposes, on the assumption that JPB Liberty’s holdings of SUFB Tokens are to
be burnt, Mr Hamilton submits that it is appropriate to disregard JPB Liberty’s Tokens when
assessing the likely share of the 25% component of the Funding Commission that will enure to
any individual SUFB Token Holder. That ignores the potential for JPB Liberty to profit from
offloading its holding of SUFB Tokens in any secondary market at a time when a favourable
resolution is looking likely, or has been agreed, but before the obligation to burn its tokens is
triggered, namely at the time when any Litigation Proceeds are received.

45 If JPB Liberty’s holding of SUFB Tokens is excluded, the total body of SUFB Tokens
presently on issue will reduce to about 813,000. A total of about 297,000 SUFB Tokens are
held by Mr Hamilton in his personal capacity, representing approximately 36.5% of the issued
SUFB Tokens, of which about 132,000 were issued for financial contributions and about
165,000 were issued for non-financial contributions Mr Hamilton’s superannuation fund holds
approximately 2.5% of issued SUFB Tokens. His family holds approximately 8.3% of issued
SUFB Tokens. Based on these figures, Mr Hamilton and those associated with him hold
approximately 47.3% of SUFB Tokens currently on issue (excluding those held by
JPB Liberty). If there was a Resolution within the meaning of the LFA and the spread of SUFB
Tokens remained unchanged, Mr Hamilton would be personally entitled to approximately a
third of the 25% component of the Funding Commission personally, and over 40% of the 25%
component of the Funding Commission would be paid to him, his family and his related
entities. Payment of that part of the Funding Commission (pursuant to entitlements under the
SUFB Tokens held by Mr Hamilton and interests associated with him) would be in addition to
the 5% commission that JPB Liberty is entitled to receive independently of the commission
payable to Token Holders. That additional 5% commission would ultimately be to
Mr Hamilton’s benefit through his sole ownership of JPB Liberty.

46 In this way, even on the assumption that Mr Hamilton urges, namely that it is appropriate to
exclude JPB Liberty’s directly held SUFB Tokens because they will be “burnt” upon
Resolution, the returns that Mr Hamilton and JPB Liberty expect to recover as a result of the

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 14

 5% commission and Mr Hamilton’s share of the 25% commission are significant. In May 2020,
JPB Liberty represented in a public internet post that the total claim value for persons who had
“signed up” to the action exceeded $1 billion Australian dollars. In Mr Hamilton’s estimation,
the value of JPB Liberty’s 5% funding commission may exceed AUD$50 million and the
commission payable to Token Holders may exceed AUD$250 million, with Mr Hamilton and
those associated with him being entitled to receive approximately 47.3% of that amount, that
is approximately $118 million.

Distribution Priorities for Litigation Proceeds

47 Clause 7 addresses the procedure in respect of any receipt of Litigation Proceeds. The clause
is framed as an irrevocable instruction. All payments in each priority level are to be made
pari passu and pro rata. The first priority is to apply the Litigation Proceeds to the
reimbursement of all Litigation Costs, as defined by cl 10.1.1, incurred by JPB Liberty, which
includes all of JPB Liberty’s out of pocket costs and expenses in relation to the litigation (plus
GST). The second priority is to pay to JPB Liberty an additional amount “on account of GST”
being equal to the sum of the GST payable by JPB Liberty in respect of the consideration
received by it for any taxable supply made to Funded Class Members under or in connection
with the LFA. The third priority is to: (1) pay to JPB Liberty an amount equal to 5% of the
Litigation Proceeds; (2) pay into the Token Holders Pool an amount equal to 25% of the
Litigation Proceeds; and (3) pay to the Lawyers each Funded Group Member’s share of any
Remaining Costs (as defined).

48 Where the balance of the Litigation Proceeds following the payment of the first two priorities,
namely Litigation Costs and GST Reimbursement, is less than 30% of the Litigation Proceeds,
the balance is to be shared 16.667% to JPL Liberty and 83.333% to the Token Holders. The
fourth priority, assuming there is a surplus after the first to third priorities are met, and subject
to any equalisation order, is to pay the balance of the Litigation Proceeds to or as directed by
the Funded Class Members.

49 Litigation Costs are defined expansively and include the pre-proceedings costs; pre-litigation
investigation and litigation management costs; any costs involved in the provision by
JPB Liberty of any security for costs; any adverse costs order payable by JPB Liberty in
accordance with the terms of the LFA; the costs of quantifying any adverse costs order; the
reasonable legal fees and disbursements of the Lawyers; any other costs or expenses which are
expressly stated to form part of the “Litigation Costs” payable by JPB Liberty under the terms

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 15

 of the LFA and all of JPB Liberty’s out of pocket costs and expenses paid or incurred in relation
to the Litigation, including in relation to any consultants engaged by JPB Liberty and any GST
payable thereon. Adverse costs orders are to be paid first from any Litigation Proceeds in the
relevant trust account with JPB Liberty to pay any balance outstanding after any payment from
trust.

50 As apparent from the reimbursement process outlined above, JPB Liberty has taken on certain
exposures in connection with the proceeding including committing to pay: all
“Litigation Costs”, JPB Liberty’s costs and expenses associated with managing the litigation,
the reasonable legal fees and disbursements of any Lawyers retained by or advising
Mr Hamilton, any security for costs ordered to be provided by the applicant; and any adverse
costs order made against the applicant. In the context of this last exposure, it is relevant that
Mr Hamilton lodged an application for no adverse costs order under s 82(4) of the CCA which
is pending, subject to outcome of the present application. He has indicated that if he is
successful in obtaining such an order he intends to continue the proceeding, the inference being
that if he does not, he will not.

51 Mr Hamilton acknowledges that JPB Liberty aims to make a profit on the proceeding. He
submits that his financial interest in the proceeding, directly and through JPB Liberty, is “no
different from any other class action where the [representative] applicant and/or funder takes
the risk of their own legal costs and adverse costs orders, and group members are not liable for
any legal costs”. Mr Hamilton submits that the only conflict of interest arising out of the
arrangements in place in respect of this proceeding “is the risk of an applicant accepting a low
settlement offer that does not properly reflect the value of the group members’s [sic] claims or
otherwise seeking to discontinue or abandon proceedings because a [representative]
applicant / funder may determine that risk outweighs potential reward”. He says his own
interest in the proceeding is such that the balance between risk and reward is appropriately
struck.

Conflict Management Policy

52 The CMP is directed to providing information about JPB Liberty, disclosing potential conflicts
of interest and methods to manage such conflicts if they manifest and providing information
about dispute and complaint resolution procedures: cl 1.2 CMP.

53 The LFA provides in cl 5.4 that during the term of the LFA, JPB Liberty will:

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 16

 5.4.1. comply with the requirements of the Regulations by implementing the
Conflicts Management Policy; and
5.4.2. provide clear and timely disclosure to You of any material breach of the
Regulations by JPB Liberty in relation to the subject matter of this Agreement.

54 On the first day of the hearing, Mr Hamilton tendered an updated version of the CMP as at
3 February 2023. The CMP was amended in two respects, each of which are outlined below.

55 The CMP includes the following information:

2.1 JPB Liberty provides litigation management services and possibly financial
services for funded litigation schemes involving class actions.
2.2 In providing financial services, JPB Liberty is exempt from the requirements
that would otherwise apply under Chapter 7 (Financial Services and Markets)
of the Corporations Act 2001 (Cth) (“Corporations Act”) provided JPB
Liberty complies with the Regulations and maintains adequate practices for
managing any conflicts of interest that may arise in relation to any funded
litigation.
2.3 JPB Liberty has this conflicts management policy which stipulates the
principles, practice and procedures to be followed by JPB Liberty in relation
to identifying and managing any conflicts of interest that may arise in relation
to, and as a result of, JPB Liberty’s funding of litigation (“Policy”). This policy
is available by request to [email protected].

56 The relationship between JPB Liberty and Mr Hamilton is described as follows (cl 2.6 CMP)

2.6 The legally experienced self-represented applicant currently bringing the

Crypto Class Action proceedings is Andrew Hamilton who is also the sole
shareholder of JPB Liberty Pty Ltd. Andrew Hamilton is bringing proceedings
on the basis that that the Court grants him an order under s 82 (4) of the
Competition and Consumer Act 2010 (Cth) that he not be liable for any legal
costs of the respondents in the proceedings. If this order is not granted,
proceedings will be discontinued and may be refiled later on another basis.

57 Clause 3 is a lengthy clause which is headed “Conflicts of Interest”. The following potential
conflicts are identified:

(1) A divergence of interest between JPB Liberty, individual Group Members and “the
lawyers” in relation to the funded litigation: cl 3.1, CMP.
(2) A divergence of interest between Mr Hamilton as representative applicant, JPB Liberty
and individual Group Members: cl 3.1, CMP.
(3) A divergence of interest between Token Holders and other stakeholders on the
applicant’s side of the record: cl 3.2, CMP.

58 A basic illustration of the potential conflicts of interests is provided in cl 3.3, CMP:

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 17

 3.3 ASIC considers that a divergence of interests may arise because:
3.3.1. JPB Liberty wishes to keep the legal and administrative costs of the
funded litigation low to maximise its return;
3.3.2. the lawyers have an interest in maximising their fees; and
3.3.3. you have an interest in minimising the returns of both JPB Liberty and
the lawyers.

59 A representation qualifying the likelihood of such conflicts manifesting is made in cl 3.4, CMP:

3.4 In many instances your interests, our interests, the applicant’s interests and
those of the Token Holders will be aligned. This is because the applicant, JPB
Liberty and the Token Holders do not receive any payment unless you recover
damages or a settlement and our & the Token Holders’ return is normally a
percentage of any Litigation Proceeds. It is not in our interests for your claim
to be resolved for an amount that does not reflect a reasonable settlement or to
be pursued in a way which does not maximise the chances of successfully
resolving it.

60 A statement acknowledging that even so, a conflict may still arise is included in cl 3.5, CMP:

3.5 Nevertheless, in some cases a conflict may arise. We have set out below a
description of the main circumstances in which conflicts may occur and the
way in which we deal with them. If we identify a conflict which arises during
the course of your funded litigation which has not been disclosed to you, we
will bring it to your attention.

61 The conflicts arising as a result of the “conflicting loyalties” the lawyers owe to JPB Liberty
and Group Members are explained as follows (as written):

3.6.1. the lawyers are appointed by JPB Liberty;

3.6.2. the lawyers have a retainer agreement with you and you are their client;
3.6.3. JPB Liberty is paying the lawyers’ fees and expenses;
3.6.4. JPB Liberty is providing day-to-day instructions to the lawyers;
3.6.5. the lawyers may have a pre-existing relationship with JPB Liberty or with you
or another client in the litigation; or
3.6.6. the lawyers may see JPB Liberty as a future source of work.

62 Immediately after this explanation of potential conflicts arising from the lawyers’ involvement,
the CMP then moves to making representations about the absence of conflicts of interest in the
period during which Mr Hamilton is acting as a litigant in person. The CMP represents that the
absence of legal representation at the liability phase of the proceeding is a positive attribute of
the arrangement and that Mr Hamilton conducting the proceeding as a self-represented
applicant reduces the risk of conflicts manifesting. The relevant clauses of the CMP are cll 3.7
to 3.8. Clause 3.8 was amended during the hearing. As amended to clauses are as follows:

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 18

 3.7 While the proceedings are conducted by Andrew Hamilton as self represented
applicant there are no conflicts of interest between the applicant and JPB
Liberty because their interests are the same. There are also no conflicts of
interest involving the lawyers and their fees, because there are presently no
lawyers.
3.8 In these circumstances, the only potential area of conflict of interest is between
those of Andrew Hamilton/ JPB Liberty and the class members. Andrew
Hamilton as applicant, owes a fiduciary duty to the class members and any
settlement must be approved by the Court. Andrew Hamilton’s remuneration
for his time and skills commitment (via shareholding in JPB Liberty and being
a Token Holder) is dependent upon success in the proceedings, the same as the
class members.
(strikethrough added to show amendment)

63 The amendment to clause 3.8 was limited to striking out the reference to “fiduciary” in the
description of the duty owed by Mr Hamilton to Group Members. The amendment of cl 3.8
reflects the fact that on this application Mr Hamilton contends that as representative applicant
he does not owe a fiduciary duty to Group Members, whereas before the amendment, contrary
to Mr Hamilton’s argument on this application, the CMP expressly acknowledged not only that
a duty was owed, but that the duty was fiduciary in character.

64 In the CMP it is further represented that there is no potential for conflict between the interests
of Mr Hamilton and sub-groups of Group Members arising at the liability phase of the
proceeding because “the potential liability of the respondents arises from broad circumstances
affecting all class members, not the specific circumstances of a particular class member or
sub-group of class members”: cl 3.9, CMP. On this basis it is said that “conflicts between
[Mr Hamilton] and the class members over which claims to pursue do not arise at the liability
stage”: cl 3.9, CMP. It is then acknowledged that such conflicts may arise at or during any
damages phase in which case “[s]eparate lawyers for each sub-group may be appointed at that
time”: cl 3.9, CMP. In cl 3.10, CMP it is then represented that:

3.10 JPB Liberty plans to appoint lawyers (and cease Andrew Hamilton’s self
representation) prior to the assessment of damages, in which case the potential
conflicts in 3.6 above may arise, but to a lesser extent because the class
members will not have had to pay for the costs of Andrew Hamilton’s self
representation and where s 82 (4) order is made and liability of the respondents
is established, the respondents will have to pay most of the costs of the lawyers.

65 It is acknowledged that the interests of “JPB Liberty/Andrew Hamilton” and Group Members
may differ in relation to issues such as litigation strategy; decisions as to which claims should
be pursued; and how funding is to be applied: cl 3.11, CMP.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 19

66 The balance of cl 3, which is lengthy comprising cl 3.12 to 3.35, sets out how the potential
conflicts are to be managed in the LFA, the CMP and via notices to Group Members. For the
purpose of this application the following clauses are relevant (as written):

3.13 JPB Liberty may want your claim to settle and you may not, or vice versa. This
may happen because:
3.13.1. JPB Liberty and you have different views about the prospects of
success of your claim;
3.13.2. JPB Liberty may be financially exposed if your claim is lost (because
JPB Liberty has paid the legal costs (which are minimal while the
applicant is self represented) and has agreed to pay any adverse costs
order (which will not apply if a s 82 (4) order is not granted)) but you
are not so exposed;
3.13.3. JPB Liberty wants to make a return on the money it has invested in the
litigation;
3.13.4. you may have other motives for settling your claim that are non-
monetary, such as preserving a relationship with the defendant;
3.13.5. you may consider the return to you (after paying JPB Liberty’s fee and
the legal costs) to be inadequate; or
3.13.6. the fee provisions in the LFA may provide for a higher return to
JPB Liberty if the litigation resolves at a later point in time.
3.14. These potential conflicts are relevantly addressed in this Policy and the LFA
which provides:
3.14.1. for the independent and conclusive resolution of any disputes in
relation to settlement by referring the dispute to the most senior
counsel (barrister) retained in the litigation or to advise the self
represented applicant to decide whether the proposed settlement is fair
and reasonable or not; and
3.14.2. in the case of a funded class action where proceedings have not yet
started, that a settlement cannot occur unless at least 50% of funded
claimants by value who are affected by the settlement vote in favour
of it and counsel gives an opinion that the settlement is fair and
reasonable in all of the circumstances.
3.15. In addition, in funded class actions where proceedings have
commenced, settlement cannot occur without the Court’s approval.
3.16. Because the LFA requires any Litigation Proceeds to be paid into a
lawyer’s trust account, and lawyers to sign settlement documents,
JPB Liberty will ensure that lawyers are appointed to advise the
applicant on any non-derisory settlement offer received by the
applicant and, if the decision is made to send a settlement offer for
Court approval, to appear in relation to that aspect of proceedings.
3.17. Moreover, unless prevented by confidentiality obligations (which will not be
voluntarily agreed to by JPB Liberty) all settlement offers will be published by
the @jpbliberty account on the Hive blockchain and notified to Other Funded
Persons made to the applicant or proposed to be made by the applicant by their

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 20

 preferred contact method. Where at least 30 Other Funded Persons indicate
they want external legal advice on whether the settlement offer should be be
accepted, JPB Liberty will appoint lawyers to advise the applicant on this.
3.18. The Court will be assessing potential and actual conflicts of interest at a very
early stage of proceedings and the applicant and/or JPB Liberty may make
undertakings to the Court or put in place additional procedures to manage any
actual or potential conflicts of interest that are identified.
3.19. The lawyers (which will be appointed prior to any settlement) are authorised
by the LFA to sign any document and take any step on your behalf that is
necessary to give effect to a settlement which is reached in accordance with
the LFA (and approved by the Court, if applicable).

67 Clause 3.17 was amended in the version of the CMP dated 3 February 2023. The amendment
is illustrated by the following marked up version of the clause:

3.17. Moreover, unless prevented by confidentiality obligations (which will not be

agreed by the applicant or voluntarily agreed to by JPB Liberty) all settlement
offers* made to the applicant or proposed to be made by the applicant will be
published by the @jpbliberty account on the Hive blockchain and notified to
Other Funded Persons made to the applicant or proposed to be made by the
applicant by their preferred contact method. Where at least 30 Other Funded
Persons indicate they want external legal advice on whether the settlement
offer should be made or be accepted, JPB Liberty will appoint lawyers to
advise the applicant on this.

68 Clause 3.20 of the CMP identifies that a conflict may arise where JPB Liberty does not want
to continue to fund a Group Member’s claim and the Group Member seeks to continue the
funding in respect of their claim, or conversely a Group Member may want to terminate funding
when JPB Liberty does not. Clause 3.21 purports to address this potential conflict as follows:

3.21.1. the LFA specifies the rights which JPB Liberty and you have to terminate the
LFA and the consequences of any of those rights being exercised;
3.21.2. the LFA provides dispute resolution procedures in the event a dispute arises
between JPB Liberty and you; and
3.21.3. the LFA may include the cost of any appeals as part of the funding or may state
that JPB Liberty is not obliged to fund any appeal unless JPB Liberty decides,
in its absolute discretion, to do so.

However, cl 6.9 of the LFA provides that JPB Liberty has absolute discretion as to whether to
cease funding any claim on 14 days’ written notice, and cl 15.1 of the LFA provides that
JPB Liberty may terminate the LFA entirely with 14 days’ written notice.

69 The LFA provides two dispute resolution mechanisms concerning conflicts of interests and
settlement decisions at cll 11.3 and 11.6 respectively.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 21

70 Clause 11.3 provides that where the Lawyers believe that they may be in a position of conflict,
except in relation to Settlement, with respect to obligations owed to JPB Liberty and the group
member the Lawyers may seek and prefer the advice of the group member. The CMP envisages
there being two stages to the class action: (1) determination of the respondents’ liability; and
(2) assessment of damages. It is notable however that JPB Liberty does not intend to appoint
lawyers (and cease Mr Hamilton’s self-representation) prior to the assessment of damages:
cll 3.9 and 3.10. Thus, for the duration of which Mr Hamilton remains self-represented, the
protective effect of cl 11.3 is rendered nugatory. This position is made all the more stark by
Mr Hamilton’s submission that he considers the primary obligation on the representative
applicant is to pursue their own claim and that the group members’ interests are secondary.

71 Similarly, the CMP at cl 3.12.3 notes that the LFA states that lawyers may enter into retainer
agreements with the group members directly. Clause 11.2 of the LFA provides that the group
member may override any instruction by JPB Liberty by giving their own instructions to the
Lawyers.

72 Clause 11.6 of the LFA provides that where there is a dispute between JPB Liberty and the
Representative, as to whether or the terms on which the class action should be settled it is to be
resolved by seeking advice of counsel. The same dispute resolution mechanism applies in
respect of settlement of claims not yet the subject of proceedings with the additional
requirement that more than 50% of Funded Class members whose claims are the subject of the
proposed settlement vote in favour of it: cl 11.11. There are two points of note:

(1) Clause 11.6 requires a dispute between JPB Liberty, the funder and the Representative,
who notionally represents the group members interests. The protective power of clause
11.6 is much diminished where the clause requires as a trigger a dispute as between
Mr Hamilton in his capacity as a Representative and JPB Liberty of which Mr Hamilton
is the executive director and the sole shareholder.
(2) If counsel’s opinion is that the settlement is fair and reasonable then the group member
and JPB Liberty agree that the lawyers are instructed to do all things necessary to settle
the class action: cl 11.8. If counsel’s advice is otherwise however, there is not
corresponding clause requiring settlement not to proceed.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 22

 Additional undertakings offered by Mr Hamilton
73 During the hearing, Mr Hamilton sought to supplement the arrangements in respect of conflict
management in a number of ways. First, Mr Hamilton proffered a series of undertakings:

Firstly, … that JPB Liberty will not issue any further SFUB tokens to myself, the
applicant, for non-financial contributions without court approval, as I noted yesterday
none have been issued since the start of the proceedings, and that would continue to be
the case.
Secondly, I offer to amend the litigation funding agreement conflicts of dispute
resolution provisions and the conflicts policy as directed by the court to better protect
group members from time to time, as and when required. I note that there is a provision
that allows the litigation funding agreement to be amended unilaterally on 14 days’
notice… that provision is provision 17.4.3 of the litigation funding agreement.
…
The third offered undertaking, … is to seek court approval for any issues or sales by
JPB Liberty of more than $180,000 tokens. That’s 1 per cent of total, either singularly
or in any 365 day period, and taking into account the concerns that seem to be
expressed by the respondents that I might go to the court for every one of 18 million
tokens, … I would limit that, that I wouldn’t seek that approval more than twice in any
365 day period. That would limit any … impact on the court’s time.

74 Upon being asked how it would be appropriate for the docket judge allocated to hear the
substantive proceeding to be involved in that level of management of the arrangements in place
on the applicant’s side in circumstances where such applications may be contested,
Mr Hamilton acknowledged his proposal may result in the docket judge being precluded from
hearing the substantive proceeding. His suggested solution was to offer to limit any such
applications to once in every 365 day period, with such applications to be heard by a judge
other than the docket judge. Mr Hamilton said that his expectation is that an application of this
type would probably only happen once in the entire life of the proceeding, if at all, because “it
would only really happen if a large potential investor sought to come in to support the class
action” and Mr Hamilton does not envisage that happening. Smaller issues of tokens would be
at Mr Hamilton’s discretion without any need to involve the Court. Only token issues that
would result in an issue more than one per cent in the total available issuance would require
Court approval.

75 Mr Hamilton noted that the LFA (on 14 days’ notice) and the CMP can effectively be amended
at will by JPB Liberty and accordingly, offered to undertake to maintain in substance the
protections in cl 3.17 of the CMP as amended.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 23

 CONSIDERATION
76 Mr Hamilton and the respondents did not agree as to the legal basis for relief sought by the
respondents. The parties were also in dispute as to the nature and extent of any obligation owed
by a representative applicant to group members in representative proceeding. I will first address
the applicable principles and then the application of the principles to the proceeding at hand.

Nature of relationship between representative applicant and Group Members

77 At the heart of this application is the issue of conflict of interests between Mr Hamilton and
Group Members. The respondents’ principal argument is that Mr Hamilton’s multiple roles —
as a litigant in person; representative applicant; Chief Executive Officer, director and sole
shareholder of the Funder; the largest holder of SUFB Tokens; and the person who controls the
issue of SUFB Tokens — create, at the least, a real potential for Mr Hamilton’s personal
interests and his duties to the Funder to conflict with his duties to, and the interests of, Group
Members.

78 Mr Hamilton’s submissions oscillated on the seminal issue of the representative applicant’s

duty to group members, at times denying any such duty was owed, but ultimately contending
that the duty was of limited scope and secondary to the representative applicant’s own interests
in successfully prosecuting their own claim. As the argument developed, a central point of
contention between the parties was the ambit of the duties Mr Hamilton owes to Group
Members in conducting the proceeding and whether such duties are secondary to his own
interests in the proceeding.

79 A substantial portion of Mr Hamilton’s written and oral submissions were devoted to

demonstrating that a representative applicant was not a fiduciary of Group Members, in the
sense of being legally bound to put the interests of Group Members ahead of his own. The
contrary position was expressly recognised by the CMP prior to the CMP being amended
during the hearing to delete the adjective “fiduciary” from the statement about the duty owed
by Mr Hamilton to the Group Members. In his supplementary submissions, Mr Hamilton
submits that a representative applicant in a representative proceeding does not owe fiduciary
duties to group members. Mr Hamilton submits that for this reason the starting point for the
respondents’ “entire conflict of interest argument” is flawed. Mr Hamilton submits that his
primary obligation as representative applicant is to pursue his own claim. He says that Group
Members gain the benefit of the litigation without taking on the risks. Mr Hamilton contends
that as representative applicant he owes no fiduciary obligation to Group Members because

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 24

 Group Members could have no reasonable expectation that he would act in the interests of
Group Members to the exclusion of his own interests. He submits that it is the primary
obligation of the Court to protect group members and that any legal representatives acting as
such in the proceeding, including the respondent’s legal representatives, have an obligation to
protect group members which in his submission is derivative of the legal representatives’ duty
to the court.

80 As the argument developed, the point about nomenclature faded in significance. Both
Mr Hamilton and the respondents accepted that the structure and content of Part IVA of the
Act imposes statutory duties on a representative applicant. The respondents’ position was that
it mattered not how the duty was described, whether as fiduciary or as an implied statutory
duty, what is important is the content of the duty owed by a representative applicant to group
members in the conduct of common claims. The difference between the parties thus reduced
as the argument developed to a contest as to the content and scope of the statutory duty.

81 The respondents submit that there is a duty on the representative applicant not to act contrary
to the interests of group members in conducting the representative proceeding: Parkin v Boral
[2022] FCAFC 47; 291 FCR 116 at [126] (Murphy, Beach and Lee JJ). The respondents submit
that the duty is not limited to particular aspects of the conduct of the litigation, such as
settlement approval or class closure, but extends to the conduct of the proceeding generally.
They rely by way of analogy on the duties of a representative applicant’s lawyers to non-client
class members which extend to the preparation and prosecution of the proceeding generally,
and submit that the duty of a representative applicant to group members must be co-extensive,
particularly, where, as here, the representative applicant is acting in person: Kelly v Willmott
Forests (No. 4) [2016] FCA 323; 335 ALR 439 at [308] to [309] (Murphy J).

82 Mr Hamilton submits that the duty is not so wide and is rather a duty not to deprive group
members of their substantive rights. Mr Hamilton submits that the duty does not extend to the
day-to-day management of the case including the making of forensic decisions, decisions about
how and where to spend money and decisions where it cannot be ascertained prospectively
whether those decisions will make any difference in the end result of the case. Mr Hamilton
submits that where it is not possible prospectively to determine how a forensic decision might
affect the outcome of a case then it is not appropriate to suggest that a conflict of interest can
arise in respect of such decisions. Mr Hamilton contends that there is a meaningful distinction
between decisions that affect substantive rights and mere forensic decisions. Further and

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 25

 crucially, Mr Hamilton submits that a representative applicant is justified in pursuing their
interests “primarily” and in treating the group members’ interests as “secondary”. Mr Hamilton
reasons as follows:

(1) Part IVA of the Act is procedural and not substantive, citing BHP Group Limited v
Impiombatao [2022] HCA 33 at [54] (Gordon, Edelman and Stewart JJ) in that it
extends the representative applicant’s claim as the vehicle for determining the claims
of other group members;
(2) The representative applicant’s claim remains the basis of the claim and “always has to
come first” and the group members’ claim “tails on from that, as a procedural matter,
not as a substantive” matter; and
(3) It follows that the scheme of Part IVA tends against the imposition of typical fiduciary
relationships where the fiduciary undertakes to prefer the interests of the beneficiary
over their own interests because the scheme requires the representative applicant to
pursue their own claim “primarily” and to “then secondarily protect the interests of
group members” in a limited way by not depriving group members of their substantive
rights.

83 I am not persuaded by Mr Hamilton’s submissions. They are contrary to authority and

mischaracterise the scheme of Part IVA. For the reasons that follow, I am satisfied that as the
representative applicant in the present proceeding, Mr Hamilton owes a duty to Group
Members not to act in a way that is contrary to their interests in conducting the proceeding.

84 In Parkin v Boral the Full Court recognised that a representative applicant owed a duty to group
members not to act contrary to the interests of group members: at [126]. The Full Court did not
limit the ambit of that duty to particular aspects of, or stages in, the conduct of the litigation,
such as settlement approval or class closing. In the circumstances of this case, where
Mr Hamilton is acting in person and by his conduct of the proceeding and also by exercising
rights conferred on him under the LFA, he can bind Group Members, the duty he owes to Group
Members must be at least co-extensive with the duties of lawyers to non-client group members.

85 I do not accept that a limitation on the ambit of the duty can be drawn by reference to the
distinction that Mr Hamilton seeks to draw between decisions which affect substantive rights
of Group Members and those which are merely forensic or procedural in nature. That
distinction is not sensibly maintainable when considered in context. For example, a forensic
decision not to call evidence on a particular issue or a procedural decision not to pursue one or

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 26

 more of the common claims may readily be seen as potentially impacting the substantive rights
of Group Members. Both decisions, even though not in relation to settlement per se or class
closure, have the real potential to impact Group Members’ interests. Mr Hamilton’s submission
that it is difficult to determine prospectively whether Group Members’ interests will be
adversely affected by a particular decision may be accepted, but it serves to demonstrate why
it is all the more important to the operation of Part IVA for the representative applicant’s
interests to be substantially aligned with those of Group Members, as opposed to the interests
of the Funder, and to recognise that the representative applicant owes a duty not to act in a way
that is contrary to the interests of Group Members. Conflicts may manifest in ways that are
subtle and the interests of group members may be negatively impacted in a way that is
unintentional. Recognising that a representative applicant owes a duty to group members not
to act contrary to the interests of group members requires the representative applicant to be
vigilant in keeping group members’ interests front of mind.

86 Mr Hamilton submits that the authorities cited by the respondents do not support the contention
that a representative applicant owes a fiduciary duty to group members in a representative
proceeding. Further, that statements to that effect in the authorities relied upon by the
respondents are obiter dicta which is not seriously considered. He says that the line of obiter
dicta can be traced to Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR
507 at [40] (French CJ, Bell, Gageler and Keane JJ) which Mr Hamilton submits does not
actually state that representative applicants owe fiduciary duties to group members.
Mr Hamilton submits that I am bound by a line of authority which he describes as being to
contrary effect, namely, that representative applicants do not owe fiduciary duties to group
members. The line of authority relied on by Mr Hamilton in this respect comprises the decision
in Timbercorp Finance Ltd (in liq) v Collins and Tomes [2015] VSC 461 (Timbercorp PJ), the
intermediate appeal in Timbercorp Finance Ltd (In Liq) v Collins and Tomes [2016] VSCA
128 (Timbercorp VCA) and the ultimate appeal in Timbercorp Finance Ltd (In Liq) v Collins
and Tomes [2016] HCA 44; 259 CLR 212 (Timbercorp HCA).

87 Mr Hamilton submits that to recognise a duty that is fiduciary in character as owing by a

representative applicant to group members would disturb “a finely balanced statutory scheme”
and would be inconsistent with the analysis of Part IVA in the High Court’s decision in
Timbercorp HCA and Impiombato.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 27

88 Meta accepts, correctly, that the plurality’s statement in Tomlinson at [40] that representative
parties in class actions typically owe fiduciary duties to group members was obiter dicta.
However, Meta contends that it was seriously considered obiter dicta and that since Tomlinson
there has been a line of binding authorities which affirm this proposition.

89 It is convenient to extract the relevant passage from Tomlinson at [40] in full:

40 Traditional forms of representation which bind those represented to estoppels

include representation by an agent, representation by a trustee, representation
by a tutor or a guardian, and representation by another person under rules of
court which permit representation of numerous persons who have the same
interest in a proceeding. To those traditional forms of representation can
be added representation by a representative party in a modern class
action. Each of those forms of representation is typically the subject of
fiduciary duties imposed on the representing party or of procedures
overseen by the court (of which opt-in or opt-out procedures and approval
of settlements in representative or class actions are examples), or of both,
which guard against collateral risks of representation, including the risk
to a represented person of the detriment of an estoppel operating in a
subsequent proceeding outweighing the benefit to that person of
participating in the current proceeding.
(emphasis added)

90 That passage is directed to forms of representation which bind those represented to estoppels
by the representative. An additional example to the traditional forms of that type of relationship
is identified as “representation by a representative party in a modern class action”. A point
being that in a representative proceeding, the representative has the capacity to take action that
is binding on the represented parties.

91 In that context, the plurality observed that each of the forms of representation identified,
including class actions, are “typically” the subject of various safeguards, namely, “fiduciary
duties imposed on the representing party or of procedures overseen by the court (of which opt-
in or opt-out procedures and approval of settlements in representative or class actions are
examples), or of “both”. Such safeguards protect against the risk inherent in the potential
collision between binding representation and errant representation. The plurality, in obiter,
recognised the complimentary roles that the twin safeguards of fiduciary obligation (or an
analogue arising from statute) and court oversight play in protecting the interests of represented
parties in representative actions. In some contexts, one or other of the safeguards will apply,
but in others, the circumstances may dictate that both safeguards are required to protect the
interests of the represented parties.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 28

92 In the setting of a representative class action, it may readily be seen that the ambit of the two
types of safeguards overlap, but not entirely. Recognising that the representative applicant
owes a duty not to act contrary to the interests of group members serves the purpose of
protecting group members from the representative proceeding being conducted in a way that is
motivated by preferring the self-interest of the representative applicant to the interests of group
members when there is not complete alignment between the relevant interests. The protection
afforded by the court’s supervisory role in relation to settlement approval, for example, may
overlap to some extent with the protection given by imposing a duty on the representative
applicant but only to the extent that the conduct of the proceeding has culminated in a
settlement which is before the court for approval. Where the representative applicant conducts
the proceeding in such a way as to act to the detriment of group members in a way that falls
short of putting forward a settlement for approval, the safeguard of imposing a duty to not act
in a manner contrary to the interests of group members serves an important purpose. Contrary
to Mr Hamilton’s submission that to recognise a duty of this type would disturb the statutory
scheme and be inconsistent with the analysis of Part IVA in Timbercorp HCA and Impiombato,
imposing a duty of this type facilitates the operation of the statutory scheme.

93 In Dyczynski v Gibson [2020] FCAFC 120; 280 FCR 583, the Full Court was concerned with
concessions made by the representative applicant in the representative proceeding which had
the effect of excluding the appellants from the class definition. The appellants were not
informed of those concessions and upon discovering that the class proceeding had been settled
sought to be substituted as the applicants. Murphy and Colvin JJ held that the appellants were
not bound by those concessions primarily because neither the representative applicant nor the
respondent to the class proceeding had sought to give legal effect to the concession by means
of an order or declaration: at [198]. Murphy and Colvin JJ also concluded that a range of other
matters demonstrated that the concession could not provide a proper foundation for a
conclusion that the appellants had ceased to be class members: at [199]. One reason for
reaching this conclusion was that the appellants had not been given notice of the procedure for
the determination of a preliminary question in which the concession had been made: at [204].
Murphy and Colvin JJ held that the solicitors acting for the representative applicant and the
appellants were obliged to inform the appellants about the procedure and had failed to obtain
the appellants’ instructions in respect of the concession and had not informed them of the
concession until after the appeal commenced: at [208]. In this context, their Honours observed
(at [209]):

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 29

 209. Even if [the solicitors] had not entered into a retainer with the appellants [the
solicitors] would have had an obligation to give them notice of the procedure
for determination of the Preliminary Questions. The scheme of Part IVA is
that the applicant has the conduct of proceedings on behalf of the class
members and has fiduciary obligations to them: [Tomlinson] at [40] (French
CJ, Bell, Gageler and Keane JJ). The applicant’s lawyers also owe obligations
to class members but how far those obligations extend is not settled…
210. In acting for the representative applicant [the firm] was obliged to act
consistently with the representative applicant’s fiduciary obligations to class
members. Thus it was necessary for [the solicitors] to notify affected class
members of the procedure for determination of the Preliminary Questions so
that affected class members could decide whether and if so how to best protect
their interests, including by deciding to instruct [the solicitors] to represent
their individual interests if they considered that appropriate.
(emphasis added)

94 Meta submits that the better view is that the paragraphs extracted above form part of the ratio
of Dyczynski. I agree. In addition, paragraph [40] of Tomlinson and paragraph [209] of
Dyczynski have been cited by the High Court as support for the proposition that in exercising
the power to stay a representative proceeding the court recognises that the representative
applicant typically undertakes the fiduciary obligations of a representative party to members of
the group: Wigmans v AMP Limited [2021] HCA 7; 270 CLR 623 at [117] (Gageler, Gordon
and Edelman JJ). Similarly, the minority in Wigmans did not see difficulty in ascribing to a
representative applicant obligations of a fiduciary character: [44] (Kiefel CJ and Keane J). That
critical proposition was reiterated in the same terms as in Dyczynski more recently in Paschke
v Secretary, Department of Social Services [2023] FCAFC 143 at [20] (Anderson, McEvoy
and Hespe JJ).

95 For completeness I note that the statements in Dyczynski have been approved or applied in
multiple single judge decisions in this Court including: Asirifi-Otchere v Swann Insurance
(Aust) Pty Ltd (No 2) [2020] FCA 1355 at [24] (Gleeson J); Kayler-Thomson v Colonial First
State Investments Limited (No 2) [2021] FCA 854 at [82] (Colvin J); and Brady v NULIS
Nominees (Australia) Limited atf the MLC Super Fund [2021] FCA 999 at [28] (Markovic J).

96 For present purposes, it is sufficient to recognise that a representative applicant typically

undertakes obligations akin to the fiduciary obligations owed by a representative party to
represented parties. Mr Hamilton’s unusually extensive interests in this proceeding and the
total alignment of his interests with those of the Funder provide a compelling basis to conclude
that, even more so than in a typical representative action, he is subject to a duty not to act
contrary to the interests of Group Members.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 30

97 Dyczynski is a stark example of how even experienced legal practitioners, including senior
counsel, junior counsel and solicitors, who owe duties to the court and the appellants by reason
of their retainer can through mere inadvertence, or otherwise, breach those strict duties. Unlike
the independent legal representatives retained by the representative applicants in Dyczynski,
Mr Hamilton is appearing as a litigant in person. In Wilkinson v Wilson Security Pty Ltd [2022]
FCA 756, Colvin J made the following observation in respect of a litigant in person who was
not legally qualified and who had commenced representative proceeding as the representative
applicant:

12. … The Court is unable to look to the lawyers for the representative applicant
as independent officers with duties to the court to perform their obligation to
act in the interests of the group members when dealing with the determination
of the common questions by proceedings or settlement: as to which obligation,
see Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323 at
[220], [308] (Murphy J)

98 Notwithstanding that Mr Hamilton is legally qualified, he has been at pains to make clear that
he does not act as a solicitor for the Group Members and is not the solicitor on record. He
eschews owing any professional obligations to Group Members. The Court is not able to rely
on him as it would on an independent solicitor on the record with duties to the court and to
Group Members. The risk that manifested in Dyczynski is more pronounced in this proceeding
— there is no independent solicitor who owes obligations to the court, whether as solicitor on
the record or as legal advisor to the representative applicant. Any reliance which the Court may
otherwise place on Mr Hamilton, either in his capacity as an admitted solicitor or by reason of
the duty that he owes as the representative applicant to Group Members, is undermined by the
numerous conflicts of interests arising from his extensive additional interests in the proceeding
and his alignment with the Funder. For these reasons, notwithstanding that Mr Hamilton sought
to distinguish Wilkinson on the basis that unlike Mr Wilkinson, he is legally qualified, I
consider Colvin J’s analysis of the importance of independent legal representation in
representative proceedings to be compelling, and apt to the circumstances of this proceeding.

99 For completeness I note that the respondents submit that Mr Hamilton’s conduct of past case
management hearings demonstrates his inexperience in conducting representative proceedings.
It is not necessary for me to decide that issue. Even if one assumes, without deciding, that
Mr Hamilton is competent by reason of his qualifications and experience to act as a solicitor in
proceedings of this type, that is not what he is purporting to do in this proceeding. The fact that
he is legally qualified does not ameliorate the risk attendant on enabling him to conduct a
representative proceeding without engaging an independent legal practitioner who owes, and

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 31

 acknowledges, a duty to the Court and to Group Members. It is not just that Mr Hamilton is
not independent – it is that he is adamant that he is not acting as a lawyer for anyone. Were the
proceedings not representative proceedings, then Mr Hamilton would be free to take that
course, even though in doing so, he may suffer the oft recognised risks attendant on a lawyer
acting for themselves. In a representative proceeding, that risk is not confined to the individual
applicant, but is amplified across the whole of the group members.

100 This proceeding has been shorn of an important measure of protective oversight of the manner
in which Mr Hamilton conducts the representative proceeding in circumstances where he has
power to affect the rights of all Group Members. The scheme of Part IVA is that the applicant
has the conduct of proceedings on behalf of the class members and as a result typically owes
fiduciary obligations to them. The Court relies on lawyers’ adherence to their duties as officers
of the Court when acting for a representative applicant, without which the Court would itself
have to supervise the representative applicant’s performance of their fiduciary obligations:
Wilkinson at [12]. To recognise that Mr Hamilton owes a duty to Group Members not to act
contrary to their interests is consistent with the statutory scheme and facilitates the operation
of the scheme in a way that balances the advantages inherent in prosecuting common claims as
representative proceedings and the potential disadvantage visited upon group members as a
consequence of being bound by the representative applicant’s conduct of the proceeding.

101 Mr Hamilton’s submissions to the effect that characterising the representative applicant’s
relationship with group members as fiduciary is a step too far because that would be to require
the representative applicant to act in the interest of the beneficiaries to the exclusion of all
others, particularly the representative applicant’s own, interests, proved to be a straw man
argument. The duty for which the respondents contend, and which I accept, is more limited. It
is a duty not to act contrary to the interests of the Group Members.

102 Mr Hamilton’s reliance on what may be called in shorthand the Timbercorp line of authority
can be addressed in short order:

(1) in the primary judgment Timbercorp PJ, Robson J states at paragraphs [573] to [574]
that the representative plaintiff is not the subject of fiduciary duties owed to group
members and is not required to consider the wider interests of group members. No
authority is cited for either proposition. I respectfully decline to follow these statements
in light of the authorities that I have traversed above;
(2) in Timbercorp VCA the Court stated as follows:

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 32

 213. The analysis of pt 4A set out above shows also that the group members in the
group proceeding were not privies of the plaintiff in respect of unpleaded
claims and defences, and that Tomlinson does not hold otherwise. The plaintiff
was not the agent of the group members; nor was he their fiduciary. The group
members had no control over the conduct by the plaintiff of the group
proceeding. They have no enforceable rights against him in the event that they
consider that he has not advanced, or not properly advanced, their unpleaded
claims. In advancing their amended defences, the group members are not
claiming ‘under or through’ the plaintiff in the group proceeding. It is true
that, by reason of the provisions of pt 4A, the plaintiff represented group
members in that proceeding. And, to the extent of that representation,
group members, in so far as they take its benefit, must also share in its
burden. Nevertheless, the plaintiff did not represent group members in
respect of their unpleaded defences and claims.
(footnotes omitted, emphasis added)

103 Read in context, the Victorian Court of Appeal’s statement that the representative plaintiff was
not the fiduciary of the group members is confined to the unpleaded claims of the group
members because the representative plaintiff did not represent the group members in respect
of those defences and claims. The Court of Appeal’s statements in respect of unpleaded claim
and defences does not assist Mr Hamilton in respect of his obligations to Group Members in
relation to pleaded claims and defences which are the subject of this stay application. There
was no explicit consideration by the High Court of the lower courts’ statements with respect to
the fiduciary nature of the representative plaintiff’s role. Further, the majority referred to
Tomlinson at [40] with apparent approval: at [45] to [46]. Accordingly, the Timbercorp line of
authority does not stand for the proposition that Mr Hamilton urges, namely, that representative
plaintiffs do not owe fiduciary duties to group members. It is also contrary to the express
statements of the High Court in Wigmans, which I have referred to above.

104 Accordingly, in determining the present applications, I will proceed on the basis that
Mr Hamilton owes a duty to Group Members not to act contrary to the interests of Group
Members in conducting the representative proceeding and that duty is not limited to conduct
that relates directly to settlement or class closure in the way in which Mr Hamilton contended.

Stay of Proceeding
105 The Federal Court has the power to stay proceedings arising from a variety of sources including
the Court’s inherent power to control its own proceedings, the implied jurisdiction under ss 22
and 23 of the Act, and r 1.32 of the Rules: Perera v Getswift Ltd [2018] FCAFC 202; 263 FCR
92 at [121] to [125], [135] (Middleton, Murphy and Beach JJ); Chen v Monash University
[2016] FCAFC 66; 244 FCR 424 at [40] to [41] (Barker, Davies and Markovic JJ).

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 33

106 The first point of divergence between Mr Hamilton and the respondents is as to the bases on
which the Court may exercise the power to grant a stay of the proceeding.

107 Mr Hamilton’s submissions were largely directed to the nature of the power of the Court to
grant a stay, rather than identifying the source of the power to grant a stay. In particular,
Mr Hamilton emphasised the reasoning of Kirby J in Campbells Cash and Carry Pty Limited
v Fostif Pty Limited [2006] HCA 41; 229 CLR 386, 450 to 451 especially paragraphs [143] to
[144] extracted below:

143. …it is important to recognise how exceptional it is for a court to bring

otherwise lawful proceedings to a stop, as effectively the primary judge did in
this case. It is very unusual to do so by ordering the permanent stay of such
proceedings …
144. The reason why it is difficult to secure relief of such a kind is explained by a
mixture of historical factors concerning the role of the courts; constitutional
considerations concerning the duty of courts to decide the cases people bring
to them; and reasons grounded in what we would now recognise as the
fundamental human right to have equal access to independent courts and
tribunals. These institutions should be enabled to uphold legal rights without
undue impediment and without rejecting those who make such access a reality
where otherwise it would be a mere pipe dream or purely theoretical.

108 Mr Hamilton submits that granting a stay is “an extreme measure done in exceptional
circumstances with the greatest of caution”.

109 Mr Hamilton submits that a permanent stay should be used as a tool of “absolute last resort”.
Google submits that the statements to that effect relied on by Mr Hamilton are readily
distinguished from the present proceeding because whereas in the context of inter partes
litigation the effect of a stay would be to prevent a determination of the merits of the claim, in
a representative proceeding a stay does not prevent the prosecution of the underlying claims of
the representative applicant or any of the Group Members in other proceedings: Perera at
[122].

110 Mr Hamilton contends that the test for “staying in relation to any issues regarding litigation
funding agreements” was stated by the majority of the High Court in Fostif at [63]:

63. …The Court concluded that whether proceedings funded by a litigation funder
are an abuse of process depends on whether the role of that funder “has
corrupted or is likely to corrupt the processes of the court to a degree that
attracts the extraordinary jurisdiction to dismiss or stay permanently for abuse
of process”…

111 The gravamen of Mr Hamilton’s submission is that the only circumstance in which the Court
can stay proceedings “in relation to any issues regarding litigation funding agreements” is

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 34

 where the Court is satisfied that to allow the proceeding to continue would be an abuse of
process that would result in a “corruption of the processes of the Court”. I reject that
submission.

112 Even in circumstances falling short of an abuse of process, the Court has power to stay
proceedings where to do so is in the broader interests of justice. That is demonstrated by the
decision of the Full Court in Perera where the Full Court dismissed an appeal from the primary
judge’s decision to grant a permanent stay in respect of two of three competing representative
proceedings against the same respondent. The Full Court rejected the primary judge’s
conclusion that the stayed proceedings could be characterised as an “abuse”, but nevertheless
found that there was power to grant the stay because, having regard to all the circumstances
(including the respective positions of the parties and the broader interest of ensuring that class
actions are run expeditiously and in a cost efficient manner), the stay was in the interests of
justice: Perera at [157], [164] to [165]. At [121], the Full Court said:

121. Faced as the Court is with such risks to the proper administration of justice we
consider it to be plain that the Court has power to order a permanent stay of
one or more competing class actions whether in the exercise of its inherent
power, or its express and implied powers to manage the cases before it in the
interests of justice and the parties and consonant with the requirement
under s 37M, or in its equitable jurisdiction.
(emphasis added)

113 The Full Court observed at [126], that the Court’s powers to stay proceedings “are not
constrained by any necessity to fit them into a specified category such as ‘abuse of process’.”
At [138], the Full Court said:

138. In determining whether either condition is satisfied, a consideration of all the

relevant circumstances is required, which necessitates “a broad, merits-based
judgment which takes account of the public and private interests involved and
also takes account of all the facts of the case”: Johnson v Gore Wood & Co
[2002] 2 AC 1 at 31; per Lord Bingham of Cornhill cited with approval in UBS
AG at [7].

114 Although Perera involved three competing open class actions of which two were stayed the
Full Court’s observations were made in respect of the Court’s power generally and not confined
to the particular circumstances of that case. Abuse of process is but one circumstance in which
it may be appropriate to stay proceedings in the interests of justice.

115 The High Court has repeatedly emphasised that it is not possible to describe exhaustively what
will constitute an abuse of process, and that the categories of abuse are not closed: Jago v
District Court (NSW) [1989] HCA 46; 168 CLR 23 at [47] to [48] per Brennan J; Rogers v The

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 35

 Queen [1994] HCA 42; 181 CLR 251 at [255] per Mason CJ, [287] per McHugh J; Ridgeway
v The Queen [1995] HCA 66; 184 CLR 19 at [74] per Gaudron J and the cases there cited;
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [9] to [15]
per Gleeson CJ, Gummow, Hayne and Crennan JJ and the cases there cited; PNJ v The Queen
[2009] HCA 6; 83 ALJR 384 at [3] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
In UBS AG v Tyne as trustee of the Argot Trust [2018] HCA 45; 265 CLR 77, Kiefel CJ, Bell
and Keane JJ said (at [1]):

1. … The varied circumstances in which the use of the court’s processes will
amount to an abuse, notwithstanding that the use is consistent with the literal
application of its rules, do not lend themselves to exhaustive statement. Either
of two conditions enlivens the power: where the use of the court’s procedures
occasions unjustifiable oppression to a party, or where the use serves to bring
the administration of justice into disrepute...

See, similarly, Tomlinson at [25] (French CJ, Bell, Gageler and Keane JJ).

116 In Jago, Gaudron J observed (at [9]) that “in civil proceedings, the power to grant a permanent
stay should be seen as a power which is exercisable if the administration of justice so demands,
and not one the exercise of which depends on any nice distinction between notions of unfairness
or injustice, on the one hand, and abuse of process, on the other hand.”

117 A stay may be justified where there may be the real potential for an abuse of the Courts’
processes: Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd [1997] FCA 9; 72 FCR
261, at [268] to [269]. The Court need not be satisfied that an abuse has in fact occurred in
order to stay the proceeding. That there is “real potential” for an abuse of process is sufficient.

118 In modern litigation, the public interests that must be considered include ensuring the efficient
conduct of litigation consistently with contemporary case management principles. Thus, in
UBS AG, Kiefel CJ, Bell and Keane JJ said (at [38]):

38. The timely, cost effective and efficient conduct of modern civil litigation takes
into account wider public interests than those of the parties to the dispute.
These wider interests are reflected in s 37M(2) of the FCA. As the joint reasons
in Aon Risk Services Australia Ltd v Australian National University [(2009)
239 CLR 175 at 213 at [98]] explain, the “just resolution” of a dispute is to be
understood in light of the purposes and objectives of provisions such as s 37M
of the FCA. Integral to a “just resolution” is the minimisation of delay and
expense. …

119 Similarly, Gordon J (dissenting in the result, but not as to principle) said (at 151):

151. The administration of justice may be brought into disrepute, in such a way as
to amount to an abuse of process, if the public perception is that the legal

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 36

 system is unfair, inefficient, ineffective, expensive (both for the parties and in
terms of the use of public moneys) or contrary to the rule of law. Permitting a
proceeding to continue in such circumstances might suggest tolerance of
behaviour that is contrary to the just, efficient and timely resolution of disputes,
including attempts to re-litigate questions already resolved.

120 A proceeding commenced or carried on consistently with the ordinary procedures of the Court
may nevertheless constitute an abuse of process where it involves unfairness, inefficiency and
undue expense or otherwise is apt to bring the administration of justice into disrepute. A
proceeding may be stayed even if the applicant has a prima facie case. To bring the
administration of justice into disrepute is an expression which is not, in any real sense,
concerned with the public reputation of the court, or public confidence in the court but is
directed to the integrity of the court, including its processes: Victoria International Container
Terminal Ltd v Lunt [2021] HCA 11; 271 CLR 132 at [37] (Edelman J).

121 In the present context, the consideration of the integrity of the Court’s processes is focussed on
Part IVA and the procedures in relation to representative actions. That context includes the fact
that there is no involvement of a solicitor on the record for the applicant. The significance of
the role of a solicitor on the record is that a solicitor’s duty to the Court is paramount:
Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 at [555] to [556] (Mason CJ) and [572]
(Wilson J). A solicitor, as an officer of the Court, is responsible to the Court for the proper
conduct of the litigation before the Court and is answerable to the Court should anything
untoward occur in the litigation: Myers v Elman [1940] AC 282. The solicitor on the record
therefore represents an essential component of the Court’s ability to maintain control over the
litigation before it: QGC Pty Ltd v Bygrave [2010] FCA 659; 186 FCR 376, at [52] to [53]
(Reeve J). These considerations have particular operation in the context of representative
actions, where the involvement of a solicitor who acts for the applicant, rather than a litigation
funder, is one way in which the risk of abuse or conflict is usually mitigated: Clairs Keeley
(a Firm) v Treacy (2004) 29 WAR 479 at [75].

122 Drawing all these principles together, in context of the present application, the essential
question is whether the proceeding ought to be stayed in all of the circumstances in the broader
interests of justice which I have identified. If that question is answered in the affirmative, the
proceeding should be stayed regardless of whether I am satisfied that the proceeding rises to
the level of an abuse of process. If I am satisfied that the proceeding is, or if continued has the
real potential to be, an abuse of process, then I may more readily be satisfied that the interests
of justice demand that the proceeding be stayed. However, if I am satisfied that to allow the

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 37

 proceeding to continue as a representative proceeding has the real potential to bring the
administration of justice into disrepute, then a stay may also be granted.

123 Before turning to apply the principles I have identified to the circumstances of this application,
there are two further related arguments raised by Mr Hamilton that I will address. They relate
to what he says is the significance of the finding in Hamilton (Service Out) that the criteria of
a prima facie case in r 10.43(1)(c) has been met. To the extent that I followed the first part of
his submission, Mr Hamilton contends that the Court by reason of its decision on the ex parte
application for leave to serve out is estopped from granting a stay of the proceeding.
Mr Hamilton submits that:

(1) the Court in Hamilton (Service Out) has actively asserted its jurisdiction to hear the
proceeding on a prima facie case and public interest basis;
(2) a permanent stay of a proceeding is a refusal to exercise jurisdiction citing Jago at 41,
[13] (Brennan J); 76, [14] (Gaudron J);
(3) where a litigant has a prima facie case, a predominant improper purpose in bringing
and maintaining proceeds is not enough to justify a stay — it must also be shown that
the litigant does not intend to pursue the cause of action to a conclusion citing Williams
v Spautz [1992] HCA 34; 174 CLR 509 at [23] to [24] (Mason CJ, Dawson, Toohey
and McHugh JJ);
(4) as the Court has “actively” asserted its jurisdiction in this matter, it is estopped from
renouncing its jurisdiction by staying the proceeding permanently unless it was
convinced that a prima facie case and public interest no longer existed.

124 Mr Hamilton’s submissions are misconceived for many reasons and are rejected. It suffices to
dispense with the submission by noting that it is premised on the assertion that once the Court
has exercised its jurisdiction in a proceeding, it is estopped from refusing to continue to exercise
its jurisdiction by way of a permanent stay. No authority is cited in support of the proposition
and it is contrary to principle. The Court has inherent power to control its proceedings,
including ordering that a proceeding be permanently stayed, to prevent, amongst other things,
an abuse of its process or where to allow the proceeding to continue would bring the
administration of justice into disrepute. If a permanent stay is required to prevent an abuse of
the court’s processes or prevent the administration from being brought into disrepute, it is no
answer to say that the plaintiff has a prima facie or even a stronger case. While the strength of
a case may weigh as a relevant factor in determining whether a permanent stay is granted, the

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 38

 mere existence of a prima facie case does not fetter the Court’s power to stay proceedings: see
for example, Jago at 74, [7] and [9] (Gaudron J).

125 Mr Hamilton appeared in his oral submissions to accept that the finding of a prima facie case
for the purpose of r 10.43(4)(c) in Hamilton (Service Out) cannot ground an estoppel. He then
pivoted and sought to reframe his submissions in respect of the strength of his case and the
underlying public interest as factors weighing against the grant of a stay. To the extent that
Mr Hamilton seeks to rely upon those features of his case as factors weighing against the grant
of the permanent stay, I have given them due consideration noting that the finding in Hamilton
(Service Out) was ex parte for a particular purpose, did not require a detailed consideration of
the evidence in the context of the requirement in r 10.43(4)(c) which is “not particularly
onerous”. I note for completeness that the respondents dispute Mr Hamilton’s characterisation
of the strength of his prima facie case.

126 Relatedly, Mr Hamilton submits that Spautz is authority for the proposition that once a prima
facie case is demonstrated and there is intention by the applicant to pursue the matter to
conclusion, the proceedings cannot be stayed. This submission misapprehends the finding in
Spautz. In Spautz, proceedings commenced by Dr Spautz were stayed by the trial judge. The
trial judge’s decision was overturned in the intermediate appellate court and reinstated by the
High Court. The stay was made where there had been a finding of fact by the trial judge, upheld
by the intermediate appellate court, that Dr Spautz’s purpose in commencing the stayed
proceedings was to exert pressure on the respondents for an ulterior purpose. It is in this context
that the Court made the observations on which Mr Hamilton relies:

23 What the appellants assert here is that the court will with the statement of Lord
Hodson in Connelly.
“To exclude a litigant with a prima facie case, whether prosecutor or
civil claimant, from the courts seems to be ... not justifiable unless an
Act of Parliament so provides”.
However, in that case, a majority of the House of Lords considered that a
superior court has power to prevent an abuse of process, certainly when it
amounts to oppression. The same view was taken by all three members of the
English Court of Appeal in Goldsmith v. Sperrings Ltd. Lord Denning M.R.,
who dissented on the application of the relevant principles to the particular
facts, stated that the court would prevent an abuse of process where, though
the process might appear to be entirely proper and correct, it was used for an
improper purpose. Scarman L.J. was of a like opinion, as was Bridge L.J.
Bridge L.J. identified one difficulty when he said:
“What if a litigant with a genuine cause of action, which he would wish
to pursue in any event, can be shown also to have an ulterior purpose

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 39

 in view as a desired byproduct of the litigation? Can he on that ground
be debarred from proceeding? I very much doubt it.” (Emphasis
added)
So would we. But his Lordship, by implication, evidently sees no difficulty
with the case in which the plaintiff does not wish to pursue his or her cause of
action to a conclusion because he or she intends to use the proceedings for a
collateral and improper purpose.
24 In our view, the power must extend to the prevention of an abuse of process
resulting in oppression, even if the moving party has a prima facie case or must
be assumed to have a prima facie case. Take, for example, a situation in which
the moving party commences criminal proceedings. He or she can establish a
prima facie case against the defendant but has no intention of prosecuting the
proceedings to a conclusion because he or she wishes to use them only as a
means of extorting a pecuniary benefit from the defendant. It would be
extraordinary if the court lacked power to prevent the abuse of process in these
circumstances.
(footnotes omitted)

127 Thus, properly understood the question before their Honours in Spautz was whether the power
to stay a proceeding for an abuse of process resulting in oppression applied even where a prima
facie case could be made out. Their Honours held that it did. In dealing with that specific
question their Honours did not find the inverse proposition, as urged by Mr Hamilton, that
where there is a prima facie case, the power to stay for abuse of process is not enlivened unless
there was no intention to prosecute the proceeding to a conclusion.

128 Applying the principles I have identified, I turn now to consider whether taking into account
all the circumstances of the present application, the proceeding ought to be stayed in the broader
interests of the administration of justice.

129 As mentioned, the respondents contend that to permit the proceeding to continue in its current
form would bring the administration of justice into disrepute for two principal reasons: first,
Mr Hamilton’s intractable position of conflict vis-à-vis Group Members; and second,
Mr Hamilton’s interest in the proceeding has been structured in such a way that, in substance,
he is obtaining prohibited contingency fees as a reward for his non-financial contributions to
the litigation. I will address each issue in turn.

Conflict of Interests
130 It bears emphasis at the outset that the potential for the inadequate management of conflict of
interests arising between Mr Hamilton and Group Members is particularly acute in
circumstances where Mr Hamilton denied in his written submissions that he owed any fiduciary
duties to Group Members, denied that was any “single real conflict of interest arising out of

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 40

 the litigation funding arrangement in these proceedings” and submitted during the hearing that
to the extent that he owed a statutory duty to Group Members it was limited to decisions
affecting substantive decisions only and was secondary to the pursuit of his own primary claim
as the representative applicant.

Potential for conflict in relation to which claims are pursued and how those claims are
resourced
131 There is potential for Mr Hamilton’s interests and those of Group Members to diverge in
relation to which claims are pursued and how those claims are resourced. Under the
arrangements in place in this litigation, including by virtue of, but not limited to, his conduct
of the proceeding as a litigant in person, Mr Hamilton has control over which claims are
pursued in the proceeding and how the prosecution of those claims is resourced. His own claim
for relief in the proceeding is not co-extensive with the claims of other categories of Group
Members. That gives rise to a real potential for Mr Hamilton’s own interests to conflict with
those of Group Members.

132 Mr Hamilton points to his entitlement under the funding arrangements to, in effect, take a cut
of any settlement amounts received in respect of all claims, including those in which he does
not have a personal claim, as demonstrating that his interests are in fact aligned with those of
all Group Members. I do not accept that this is so. The potential for Mr Hamilton to
discriminate in relation to which claims are pursued and how those which are pursued are
resourced by reference to his personal interests as the owner and executive director of the
Funder and a substantial holder of SUFB Tokens is readily apparent.

133 It is uncontroversial that conflicts of interest may arise between a funder and group members
in a funded representative proceeding. The potential divergence in interests between funders
and group members and the consequential conflicts between the interests of the funder, lawyers
and group members is recognised by ASIC’s Regulatory Guide 248: Litigation schemes and
proof of debt schemes: Managing conflicts of interest (RG 248). These conflicts of interest can
be actual or potential, and present or future. JPB Liberty’s own CMP recognises the potential
for conflicts of interest to arise between JPB Liberty and Group Members.

134 Ordinarily, the potential for the interests of a funder to conflict with those of group members
is mitigated through the appointment of a representative applicant, whose interests are aligned
with the interests of group members. A representative applicant therefore instructs their legal
representatives to conduct the proceeding consistently with their interests and those of group

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 41

 members, including where those interests are in conflict with those of the funder. The extent to
which a funder’s interests are to be taken into account in the conduct of proceedings is
ordinarily regulated by a litigation funding agreement, which itself provides conflict resolution
mechanisms, including by providing, for example, for the resolution of disagreements between
the funder and the representative applicant by counsel.

135 The circumstances in the present proceeding are wholly different because Mr Hamilton is not
only the representative applicant, he is also the owner and executive director of the Funder.
Mr Hamilton’s financial interests are entirely aligned with those of the Funder. As a director
of JPB Liberty, Mr Hamilton’s general law and statutory duties to JPB Liberty could come into
conflict with his duty as representative applicant to Group Members, to the extent that
JPB Liberty’s interests conflict with those of Group Members.

136 For reasons of cashflow and risk, Mr Hamilton as owner and executive director of JPB Liberty
has an interest in minimising the costs incurred in conducting the proceeding, because
JPB Liberty is liable to cover those costs on an ongoing basis and in the event of an
unsuccessful outcome, will ultimately be liable for those costs. That is not to suggest that
Mr Hamilton is motivated to minimise the costs incurred in conducting the proceeding to the
point that he would intentionally compromise the prospects of the proceeding being successful.
To the extent that Mr Hamilton’s submissions were premised on the proposition that the
respondents were wrong to suggest that he would intentionally conduct the proceeding in such
a way as to jeopardise a successful outcome of the proceeding that is to miss the point. The
point is that Mr Hamilton’s assessment of the risk/reward calculus on this issue is necessarily
subjective and informed by his own interests, which are aligned with the Funder, and are more
extensive than and different in nature to those of other Group Members.

137 Group Members, who are not liable to service such costs, or if the proceeding is unsuccessful,
bear such costs, have an interest in incurring all costs reasonably necessary to give the
proceeding the greatest prospect of success. From the perspective of Group Members, the
risk/reward calculus on the issue of resourcing the litigation is different to that of Mr Hamilton.
Notwithstanding that Mr Hamilton may at a future time share in any Litigation Proceeds in
respect of the claims in which he is not personally a claimant, his interest in that contingent
reward may be tempered by the fact that JPB Liberty is ultimately responsible for the funding
of the proceeding and meeting any Adverse Cost Orders. Mr Hamilton is uniquely at risk in
this regard because of his concentrated exposure through his ownership of the Funder. There

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 42

 is a real potential for a conflict to arise between the interests of Mr Hamilton and Group
Members in relation to how the proceeding should be conducted and resourced.

138 That potential for conflict is exemplified by Mr Hamilton’s approach to expert evidence. The
respondents submit that JPB Liberty may be motivated not to engage certain expert witnesses
where JPB Liberty wants to cut costs, whereas Funded Group Members’ interests may be
served by retaining those expert witnesses. Mr Hamilton’s response on this issue serves to
underscore the fact that there is a real potential for his interests to conflict with those of Group
Members.

139 Mr Hamilton first contends that the core cartel claims in the proceeding do not require expert
economic evidence and that he has the capacity to prepare economic and market
causation-based evidence without recourse to experts. That conclusion is based on both a
forensic and subjective assessment on which reasonable minds may differ. In the circumstances
of this case, there is no independent legal adviser undertaking the assessment. Mr Hamilton’s
own assessment of this issue is not objective in circumstances where he promotes himself as
the person capable of preparing the evidence in lieu of an expert. Further, the fact that his
approach may reduce the need for JPB Liberty to cover the cost of such evidence may be
another factor in respect of which Mr Hamilton’s and Group Members’ interests diverge and
conflict. A further complication and potential conflict may arise if Mr Hamilton approves the
issue of SUFB Tokens to himself, or at his direction, in recognition of his non-financial
contribution in preparing such evidence. Mr Hamilton’s interests would then be doubly served:
the cost of having this evidence prepared as the proceeding progress would be avoided by the
Funder; and, he would increase his potential reward if the proceeding is successful by
increasing his SUFB Token holding through making a non-financial contribution in respect of
which he approves the issue of further tokens to himself.

140 He further contends that he “may be able to obtain economic expert evidence without paying
any or large amounts of money for it”. That may be so, but it is entirely speculative. If an expert
was to be remunerated by the issue of SUFB Tokens then that may undermine the expert’s
status as independent, and that in turn may not be in the interests of Group Members if it
negatively impacts the prospects of success of the proceeding. Mr Hamilton’s submission that
the Court might order the respondents to pay for the costs of both set of experts or the
appointment of a joint expert is similarly speculative.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 43

141 Mr Hamilton next says that if expert evidence is required in relation to cryptocurrency, then he
“himself is an expert in this area and is able to cite a wide range of external evidence to support
his positions”. Again, Mr Hamilton’s view as to his suitability to perform this role is entirely
subjective. Mr Hamilton would not be capable of giving independent expert evidence. For
Mr Hamilton to commit the Group Members to a course in which he assumes the role of expert
witness as well as being the representative litigant in person, controller of the Funder, major
holder and controller of SUFB Tokens and the “Representative” under the LFA gives rise to
yet a further potential conflict between his interests and theirs.

142 Finally, Mr Hamilton says that if all of these measures do not adequately address the issue and
“it becomes apparent to the Applicant that it is necessary to obtain expert evidence or otherwise
incur costs in order to not impair the Applicant’s prospects of success, then such costs can be
paid for out of existing JPB Liberty funds, sales of additional SUFB Tokens to raise additional
funds or by seeking Court orders that the Respondents pay the costs of both set of experts or
the appointment of a joint expert”.

143 Mr Hamilton’s focus on his own position and his subjective assessment of what is necessary
“in order not to impair [his] prospects of success” is constant. Once Mr Hamilton’s contention
that his interests are completely aligned with Group Members’ interests is rejected, as it must
be, and it is recognised that Mr Hamilton’s risk/reward calculus and that of the Group Members
is materially different, it is clear that to conduct the proceeding by reference to the touchstone
of not impairing Mr Hamilton’s prospects of success on his own claim gives rise to a real
prospect of conflict between his interests and the interests of Group Members. To allow this
representative proceeding to be conducted on this basis creates a real risk of bringing the
administration of justice into disrepute and undermining the integrity of the Court’s processes.

Potential for conflict in relation to settlement of the proceeding

144 The real potential for Mr Hamilton’s interests to conflict with those of Group Members is
further illustrated in relation to settlement. JPB Liberty will be financially exposed if the
proceeding is lost, whereas Group Members will not be so exposed. This difference results in
the potential for JPB Liberty to be motivated to settle the proceeding for a lower sum to avoid
its potential exposure whereas Group Members’ interests may be served by continuing the
proceeding in the hope of achieving a larger return. As Mr Hamilton’s submissions developed
on the application, he ultimately recognised this potential conflict. It was one of the limited
conflicts he recognised as having the potential to impact what he described as Group Members’

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 44

 substantive rights. It was this potential conflict that Mr Hamilton sought to accommodate by
the amendment to cl 3.17 of the CMP during the hearing.

145 The effect of that amendment included introducing a mechanism by which Mr Hamilton and
the Funder would not agree to keep confidential any settlement offers made to Mr Hamilton or
proposed to be made by him and would publish such offers to the JPB Liberty Hive blockchain
and notify “Other Funded Persons”. If at least 30 Other Funded Persons indicate that they want
external legal advice on whether a settlement offer should be made or accepted, then
JPB Liberty is to appoint lawyers to advise Mr Hamilton on this issue. There are a number of
difficulties with cl 3.17 of the CMP, even as amended, in remediating the potential for real
conflict between Mr Hamilton and Group Members. An immediate consequence of restricting
the parties’ ability to make settlement offers capable of being treated as confidential is that it
is likely to stifle offers being freely made, which is not in the interests of Mr Hamilton, Group
Members or the respondents. Requiring the Funder to retain a lawyer to advise Mr Hamilton
on whether a settlement offer should be made or accepted falls short of protecting Group
Members in the event of Mr Hamilton considering but not following any legal advice given.
Issues may also arise in relation to the manner in which such lawyers are instructed and whether
Group Members’ interests are adequately addressed in the process. An issue may also arise in
relation to how the lawyer addresses and weighs the competing interests of Mr Hamilton and
the Funder on the one hand, and the interests of Group Members on the other.

146 The other mechanisms in the LFA directed to resolving conflicts arising in relation to a
proposed settlement are similarly flawed. Clauses 11.6 to 11.8 of the LFA provide a conflict
resolution mechanism which applies when Mr Hamilton and JPB Liberty disagree on whether
to settle the proceeding. In circumstances where Mr Hamilton’s interests are wholly aligned
with JPB Liberty’s, it is difficult to conceive of a scenario in which Mr Hamilton and
JPB Liberty would disagree on a question connected with settlement, so as to engage the
conflict resolution mechanism provided for in the LFA. Although the definition of
“Representative” under the LFA is broad enough to accommodate a scenario where
Mr Hamilton is replaced as the Representative there is no suggestion on the present application
that it is contemplated that Mr Hamilton will be so replaced. Further, even assuming that clause
11.6 is triggered, there is no requirement that the Representative act in accordance with
Counsel’s opinion.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 45

147 Clause 11.10 provides that subject to clause 11.11, the procedure set out in clauses 11.6 to 11.8
of the LFA applies to where the Funded Class Member and JPB Liberty disagree on whether
to settle a Claim not yet the subject of Proceedings. There are three points of note. First,
although clause 11.10 is triggered by a dispute as between the Funded Class Member (as
opposed to Mr Hamilton in clause 11.6), it only applies in respect of Claims which are not yet
the subject of Proceedings. Critically, clause 11.10 does not apply to the claims and allegations
that are the subject of this proceeding and therefore affords no protections in respect of them.
Secondly, adopting a generous interpretation in Mr Hamilton’s favour and assuming that the
references to Representative are to be read as a reference to the Funded Class Member when
triggered via clause 11.10, again, there is no requirement that the Representative act in
accordance with counsel’s opinion. Thirdly, and for completeness, I note that clause 11.11
provides that where there is a proposed settlement of Claims not yet the subject of proceedings
and which also involve the Settlement of Other Claims, the Funded Class Member agrees to be
bound by the proposed settlement provided that more than 50% by value of Funded Class
Members whose claims that are the subject of the proposed settlement vote in favour of it and
advice is received from counsel that the proposed settlement is fair and reasonable. Other Claim
is defined as any claims other persons have or may have against one or more Respondent for
loss and damage caused to them by the Crypto Ad Ban which claims are the same or similar to
the Claims.

148 The CMP highlights, rather than cures, the conflict between Mr Hamilton’s interests as the
owner of JPB Liberty, and those of Group Members, in relation to settlement. It reveals that
the mechanisms for resolving conflicts of interest between the Funder and Group Members rely
upon Mr Hamilton adequately representing Group Members’ interests in the face of those of
the Funder.

149 For example, the CMP identifies that a conflict may arise because JPB Liberty may want to
settle a Funded Class Member’s claim, and the Funded Class Member may not, or vice versa
(per cl 3.13). The CMP provides that where proceedings have been commenced, such a conflict
is to be resolved conclusively by counsel (cl 3.14.1) and is subject to Court approval (cl 3.15).
However, as noted above, that conflict resolution mechanism is triggered by Mr Hamilton
taking a different view on settlement to the Funder. As set out above, the conflict resolution
mechanism triggered by at least 50% by value of the Funded Class Members whose claims are
the subject of the proposed settlement taking a different view on settlement to the Funder only
applies in respect of a Claim that is not yet the subject of the proceeding. Given that

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 46

 Mr Hamilton’s financial interests are aligned with the Funder’s, it is not apparent that this
conflict resolution procedure would be triggered, even if JPB Liberty wants to settle the
proceeding where it is not in Group Members’ interests to do so.

150 I have not overlooked the fact that Mr Hamilton maintained that if his amendment to the CMP
and the undertakings he offered were inadequate to address the potential conflict it was then a
matter for the Court to consider and draft the terms of the CMP and LFA and any accompanying
undertakings to its own satisfaction. This was an aspect of Mr Hamilton’s submissions to the
effect that it was the Court’s primary duty to protect Group Members and that the grant of a
stay must be an “absolute last resort”. In making the proposal that the Court itself redraft the
LFA and CMP and craft such undertakings as are considered appropriate, Mr Hamilton denies
he is seeking an advisory opinion from the Court. He maintains that he is “basically providing
the Court additional tools to help manage conflicts of interest”. He further submits that what
he was proposing was in reality requiring the Court to undertake “a small supervisory or
additional tools function” so as to avoid a stay which must be an absolute last resort. I do not
agree.

151 In my view it is no part of the Court’s function to accede to Mr Hamilton’s invitation to redraft
the commercial arrangements between him, his company and Group Members. Similarly, I do
not accept that in circumstances where Mr Hamilton has not retained lawyers to conduct the
proceeding or to advise, it is appropriate for the Court to step in to fill the void to advise and
supervise the terms and the manner in which the proceeding is conducted by Mr Hamilton.
That would be to impose an onerous burden on the Court to exercise considerable control and
scrutiny over the proceedings in order to ensure that Mr Hamilton was fulfilling his duties as
representative applicant. There are sound reasons of policy why the Court should not perform
that supervisory role. To do so would be antithetical to the Court’s obligation of independence
in discharging its function to hear and determine the dispute between the parties.

Potential for conflict arising from Mr Hamilton’s interests as owner and controller of
JPB Liberty
152 Two aspects of this source of potential conflict have already been addressed, namely, in relation
to the conduct and resourcing of the proceeding; and the settlement of the proceeding, and need
not be repeated. There are however other potential conflicts that may arise in the context of
Mr Hamilton’s ownership and control of JPB Liberty. It is sufficient for present purposes to

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 47

 illustrate the issue by reference to the conflict that may arise consequential on JPB Liberty
ceasing to fund the proceeding.

153 JPB Liberty may decide, in accordance with cl 6.9 of the LFA, in its sole discretion, to cease
funding. This may be contrary to the interests of Group Members who may not otherwise be in
a position to continue the “Ceased Claim” and depending on the terms on which the Ceased
Claim is abandoned, may preclude the Ceased Claim being otherwise pursued.

154 Clause 3.20 of the CMP, addresses the scenario where “JPB Liberty may not want to continue
funding your claim even though you want us to”, or vice versa. That may occur because
JPB Liberty takes the view that a claim is not commercially viable for it to continue to fund or
that the prospects of success or chances of recovery of any judgment sum are not sufficient to
warrant continued funding. The CMP states in cl 3.21 that this “potential conflict” is addressed
by the termination rights and dispute resolution procedures under the LFA.

155 Clause 6.9 of the Litigation Funding Agreement provides:

JPB Liberty may decide, in its sole discretion following consultation with the Lawyers
and the Representative, to cease to fund any Claim, either completely or as against any
particular Respondent (Ceased Claim), by giving You 14 days’ written notice. For the
avoidance of doubt, any such decision by JPB Liberty does not by itself result in a
termination of this Agreement.

156 As mentioned, there are presently no “Lawyers” appointed and so the obligation for
JPB Liberty to consult with the Lawyers is hollow. In the present circumstances, JPB Liberty’s
decision to cease funding is in its sole discretion but must follow consultation with the
“Representative”, being Mr Hamilton. Mr Hamilton is thus required to engage in this
consultation in his role as Representative as defined under the LFA, that is as the representative
applicant in the proceeding. However, he is necessarily in a position of conflict between his
interests as the representative applicant and his interests as the owner of the Funder and his
duties as a director of the Funder. For so long as Mr Hamilton is the Representative, the
Representative’s interests will be aligned with those of JPB Liberty, rather than Group
Members with the result that Group Members’ interests are wholly unprotected in
circumstances where JPB Liberty is considering ceasing funding the proceeding. Even
accepting, as I have found, that Mr Hamilton, as the representative applicant, owes a duty to
Group Members, separate to any obligations arising under the LFA to Funded Class Members,
Group Members’ interests are inadequately protected by that duty in the setting of the pervasive
conflicts of interest attendant on Mr Hamilton’s various roles. While it may be correct that in

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 48

 the event that Mr Hamilton abuses his position, it would be open to Group Members to protect
their interests by seeking to replace Mr Hamilton as the representative applicant, the utility of
that avenue of relief is dependent on the Group Members being in a position to exercise
effective and timely supervision of Mr Hamilton’s conduct of the proceeding and any collateral
decision-making under the LFA.

Potential for conflict arising from Mr Hamilton’s interest as a substantial holder of SUFB
Tokens
157 Mr Hamilton’s status as the holder of a substantial proportion of the SUFB Tokens on issue
which are likely to participate in any Litigation Proceeds also has the potential to give rise to a
conflict of interest with Group Members.

158 Mr Hamilton’s interest in the Litigation Proceeds via his holding of SUFB Tokens, over and
above his interest in the recovery of damages for his own claim, means that his interest in the
proceeding differs to, and may conflict with, that of Group Members who do not hold SUFB
Tokens. For example, Mr Hamilton may consider it commercially preferable to crystallise his
interest in the proceeding through a settlement at an early stage, when a smaller number of
SUFB Tokens have been issued. This would give him an entitlement to a greater pro rata
portion of the 25% of the Litigation Proceeds allocated to SUFB Token Holders than would be
the case if the proceeding settled at a later stage, when more SUFB Tokens may have been
issued, and Litigation Costs may exceed 70% of the Litigation Proceeds. Conversely, for Group
Members, it may be preferable to continue the litigation to achieve a larger overall settlement
at a later stage, or to obtain a judgment in the proceeding, given the allocation of 25% of the
Litigation Proceeds is constant — it is not tethered to the stage at which the proceeding is
resolved. There is a real potential for Mr Hamilton’s interests as a SUFB Token Holder to
conflict with the interests of Group Members.

Potential for conflict arising from Mr Hamilton’s discretionary power to issue SUFB Tokens
coupled with his direct and indirect SUFB Token holdings
159 Some aspects of the potential conflict arising from Mr Hamilton’s direct and indirect interests
in SUFB Tokens, including through JPB Liberty, is addressed at paragraph [43] above and
need not be repeated here. That is not the only conflict of interest that arises in this context.

160 Mr Hamilton has complete control over the number of SUFB Tokens that are issued in
exchange for financial and non-financial contributions, and the terms on which such Tokens
are issued. Mr Hamilton thus has a discretionary power to confer an interest in the Litigation

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 49

 Proceeds on persons, including himself, as he sees fit. As he has acknowledged, he has not
been constrained by any articulated or documented policy in his exercise of this power.
Mr Hamilton’s power to issue SUFB Tokers has the potential to give rise to a significant
conflict between Mr Hamilton’s personal financial interests and those of his associates on the
one hand, and the interests of Group Members on the other hand.

161 As a result of the way in which the arrangements have been structured, SUFB Tokens are an
important source of funding the litigation and therefore are important to the prospects of
success of the litigation. Mr Hamilton’s interests in relation to the issue of SUFB Tokens are
multi-faceted. As already mentioned, Mr Hamilton, being aligned with the Funder and as a
substantial holder of SUFB Tokens (directly and indirectly), is interested in the proceeding
achieving a successful outcome utilising the lowest funding reasonably possible, whether that
funding is provided by JPB Liberty or via issue of SUFB Tokens.

162 Relatedly, Mr Hamilton has an incentive not to cause JPB Liberty to issue any more tokens in
circumstances where he and his associates hold the majority of tokens on issue and the right to
participation is pegged at 25% of the Litigation Proceeds regardless of the stage at which a
resolution is achieved. The continued issuance of SUFB Tokens to persons other than
Mr Hamilton (or persons associated with him) has the potential to dilute Mr Hamilton’s
interests in the Litigation Proceeds. He has an interest in issuing SUFB Tokens to himself, and
his associates, for minimal financial or non-financial contributions, provided that in his
subjective assessment, the proceeding is adequately funded such that he is satisfied that the
prospects of success are reasonable.

163 The position of Group Members is different. It is in Group Members’ interests for as many of
the maximum available number of SUFB Tokens (being 18 million) to be issued as is necessary
for JPB Liberty to build a “war chest” to use in the conduct of the litigation, and to receive such
non-financial contributions from prospective token holders as is necessary to give the litigation
the greatest prospect of success. I accept Mr Hamilton’s submission that an excessive outlay
will not necessarily result in enhanced prospects of success but that is not the issue. Unlike
Mr Hamilton who is aligned with JPB Liberty, Group Members do not have to meet the cost
of funding the proceeding as those costs are incurred, they are not exposed to the potential for
adverse costs orders, and they will only be required to contribute to reimbursing Litigation
Costs under the LFA in the event Litigation Proceeds are generated. In these circumstances,
Group Members’ interests are served by resourcing the preparation and prosecution of the

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 50

 proceeding 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. For completeness I note that the
point in relation to the potential exposure to adverse costs orders may prove to be moot if
Mr Hamilton either obtains an order protecting him against an adverse costs order or
discontinues the proceeding if he is not successful in obtaining such an order.

164 Given that Funded Class Members have agreed under the LFA to allocate 25% of the Litigation
Proceeds to SUFB Token Holders collectively, the issuance of further SUFB Tokens does not
dilute Funded Class Members’ interests in the Litigation Proceeds whereas it may reduce the
prorated return on individual SUFB Tokens, which collectively share in 25% of the Litigation
Proceeds. In this way the divergence in the interests of Mr Hamilton and Group Members with
respect to the issuance of SUFB Tokens gives rise to a real potential for further conflict of
interest to arise between Mr Hamilton and Group Members.

165 The potential for Mr Hamilton to issue tokens to himself and his associates at an undervalue is
real. He is the sole arbiter in relation to the terms on which any SUFB Tokens are issued and
the terms on which the Tokens can be issued are not dictated by documented transparent
policies or otherwise recorded. The interests of Group Members, whose right of participation
in the Litigation Proceeds is of a lesser order of priority than the rights of SUFB Token Holders,
demand that the 25% of the Litigation Proceeds that is reserved for SUFB Token holders is
reserved to reward those who have made contributions that objectively and demonstrably add
value and enhance the prospects of success of the proceeding, regardless of whether the
contribution is financial or non-financial. It is in Group Members’ interests that the issue of
SUFB Tokens is based on an independent and objective value based assessment so as to give
rise to the greatest influx of contributions in return for the 25% participation rights reserved for
SUFB Token Holders. There is a risk with the present arrangements of there being effectively
two markets for the issue of SUFB Tokens, one of which is for persons not associated with
Mr Hamilton and the other is for Mr Hamilton and persons associated with him, with the latter
being subject to a risk of issuance at undervalue or not on arms’ length terms. If this occurred,
and became public, it could undermine the utility of the SUFB Tokens as a source of funding
the proceeding and that could be to the detriment of Group Members generally or in respect of
some claims.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 51

166 Mr Hamilton’s proposed undertaking in relation to involving the Court in approving issuance
which exceeds one percent of the total amount of SUFB Tokens that can be issued in a 365 day
period does not ameliorate this source of conflict. It would be inappropriate to allocate judicial
resources additional to those engaged in the determination of the substantive proceeding to take
on the role that Mr Hamilton proposes. Mr Hamilton submits that he would not seek approval
more than once in any 365 day period but has not justified how it would be an appropriate
application of public resources for this role to be effectively outsourced to the Court. The
potential for the process to be controversial and mire the Court in what is essentially unbounded
commercial decision-making collateral to the proceeding before the Court is plain. Contrary to
Mr Hamilton’s submission, the Court is ill placed to oversee the management of these conflicts,
when they arise outside of a settlement context. In any event, the undertaking as framed would
leave Mr Hamilton with ongoing unfettered issuance powers in relation to all issuance that is
less than designated percentage triggering referral to the Court.

167 Mr Hamilton’s prosecution of the proceeding against the respondents in these circumstances,
with the consequence that Group Members are bound by his conduct and their claims are
extinguished by the resolution of this proceeding if allowed to continue, brings – or, at least,
has the “real potential” to bring – the administration of justice into disrepute.

Mr Hamilton’s receipt of prohibited contingency fees

168 The second argument in support of the grant of a permanent stay is that by reason of his receipt
of SUFB Tokens for non-financial contributions, Mr Hamilton is in effect receiving fees in the
nature of prohibited contingency fees. The respondents submit that given Mr Hamilton is
legally qualified and having regard to the nature of Mr Hamilton’s involvement in the
proceeding, the absence of independent lawyers, the extent and timing of the issuance of SUFB
Tokens to Mr Hamilton for non-financial contributions, the Court should infer that
Mr Hamilton is receiving SUFB Tokens in reward for legal work he has done in connection
with the proceeding, including in the lead up to the proceeding being filed. The respondents
submit that if that be correct then Mr Hamilton is receiving in effect prohibited contingency
fees. The respondents submit that this aspect of the arrangements constitutes an additional basis
to stay the proceedings on the basis that it is a separate abuse of process or otherwise
undermines the proper administration of justice.

169 Mr Hamilton expressly denied when addressing the Court that he was provided for SUFB
Tokens in respect of legal work that he performed. Mr Hamilton submits that the SUFB Tokens

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 52

 awarded to him were for work done prior to filing the proceedings, which work he described
as non-legal work, including in establishing a litigation funding company, creating websites,
signing up class members, and seeking investments. Mr Hamilton was not cross-examined on
his assertions made during his submissions.

170 Meta submits that the Court should infer that Mr Hamilton is receiving SUFB Tokens for legal
work. Meta illustrates the point by reference to the timing of the original statement of claim,
which was dated 13 August 2020. Meta submits that it can be inferred that the statement of
claim was prepared by Mr Hamilton in the period from June to August 2020. Mr Hamilton
received 15,000 tokens for work done in that period.

171 Mr Hamilton submits that the 15,000 SUFB Tokens that he received were for work he
performed for JPB Liberty and for which he caused JPB Liberty to pay him in SUFB Tokens.
Meta submits that if this be correct then it would be contrary to the terms of the LFA for three
reasons. First, the LFA defines SUFB Tokens as tokens issued in order to fund the proceeding.
Secondly, the purpose of the issuance on Mr Hamilton’s account is not aptly described as a
non-financial contribution to the conduct of the proceeding but rather for work done for the
Funder’s book build. Finally, the issuance appears to be contrary to cl 6.2 of the LFA which
provides that the Funder will not seek reimbursement from any Funded Class Member for any
internal overheads incurred as part of the litigation.

172 Given the manner in which the applications were conducted, and having regard to the
seriousness of making a finding that Mr Hamilton as an admitted solicitor has engaged in
conduct of the type alleged, I am not satisfied that it is appropriate to infer that Mr Hamilton is
being rewarded for legal services by the issue of SUFB Tokens. It is equally possible that
Mr Hamilton is being rewarded for non-legal services in the manner in which he asserts even
though arguably that may be inconsistent with the LFA. Given that I have concluded that it is
appropriate to permanently stay the proceeding because of the real potential for the continuance
of the proceeding to bring the administration of justice into disrepute, it is not necessary to
determine this alternative basis on which the respondents rely.

173 For completeness, although Mr Hamilton attacked the precedential value of the authorities on
which the respondents relied in relation to the prohibition on the receipt of contingency fees, I
accept that the proposition established in Clyne v NSW Bar Association [1960] HCA 40; 104
CLR 186 at 203, remains good authority:

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 53

 …[A solicitor] must not in any case bargain with his client for an interest in the subject-
matter of litigation, or (what is in substance the same thing) for remuneration
proportionate to the amount which may be recovered by his client in a proceeding…

It is consistent with the continuing legislative prohibition on contingency fees in all Australian
jurisdictions other than Victoria: Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582
(Bolitho (No 4)) at [50] per Ferguson JA. The decision in Bolitho (No 4) predated the insertion
of s 33ZDA of the Supreme Court Act 1986 (Vic) in 2020 which created an exception to the
legislative prohibition in Victoria.

174 Although, I have concluded that I cannot infer on the material before me that, to date,
Mr Hamilton has been issued SUFB Tokens as a reward for legal services, given the way in
which the proceeding is being resourced and the manner in which Mr Hamilton is approaching
his own risk/reward calculus through the issue of SUFB Tokens to himself and at his direction,
the risk of that occurring in the future cannot be excluded.

Public interest considerations relevant to the grant of relief

175 Mr Hamilton submits that there is a public interest dimension to this proceeding arising from
the private enforcement of Part IV of the CCA, “enhanced” by the proceeding being a
representative proceeding and the private, civil enforcement of Division 1 of Part IV of the
CCA being a preliminary step in the public enforcement of the criminal prohibitions on cartel
conduct. Mr Hamilton submits that there is also public interest in the first judicial consideration
of various provisions of the CCA and that for the proceeding to be stayed where the respondents
have wielded “power, wealth and influence” in an “arbitrary and capricious” manners as
alleged would bring “bring the system of justice into disrepute and undermine the rule of law”.
Mr Hamilton cites Epic Games, Inc v Apple [2021] FCAFC 122: 286 FCR 105 (Middleton,
Jagot and Moshinsky JJ) as an analogous case.

176 At paragraph [40] of Hamilton (Service Out) I noted that the Full Court in Epic held that Part IV
claims necessarily have a public dimension and I accept that there is accordingly a degree of
public interest in the claims the subject of this proceeding. I note for completeness that the stay
the subject of consideration in Epic is distinguishable to the stay sought in this proceeding in
two respects. First, the stay in Epic was a stay of the underlying substantive claim. That is not
the case here where the stay applies to the representative proceeding and group members may
continue to pursue their claims either individually or through a differently constituted
representative proceeding. Secondly, the stay was granted by the trial judge in Epic because of
an exclusive jurisdiction clause which covered the dispute. The relevance of the public interest

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 54

 consideration was that a stay may be refused where the foreign jurisdiction clause offends the
public policy of the forum, whether that policy is evinced by statute or declared by judicial
decision: Akai Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39; 188 CLR 418 at 445
(Toohey, Gaudron and Gummow JJ). In this proceeding, a stay is sought not because of an
exclusive jurisdiction clause but rather because the proceeding itself may bring the
administration of justice into disrepute.

177 I am satisfied that insofar as there is a public interest component to this proceeding,
consideration of that factor does not outweigh the other factors I have identified that weigh in
favour of a stay. Without being exhaustive, those factors include the following. First, that the
grant of a permanent stay of the proceeding does not operate to preclude the prosecution of the
underlying claims in separate proceedings, whether by way of a representative proceeding or
as individual claims. Secondly, notwithstanding the public interest dimension to the
proceeding, it remains the case that due to the potential for conflicts of interests between Mr
Hamilton and Group Members, the continuation of the proceeding as constituted is likely to
bring the administration of justice into disrepute. Thirdly, that risk is heightened in
circumstances where Mr Hamilton is a litigant in person. Finally, the means by which Mr
Hamilton has proposed that these conflicts be managed by dedicated and active judicial
oversight, extending well beyond settlement approval and class closure determinations, are not
consistent with the independence of the Court in fulfilling its judicial function.

178 Mr Hamilton also relies on the evidence of Mr Lange in resisting the relief sought in the
applications on the basis of public interest considerations.

179 Mr Lange deposes to holding 30,000 SUFB Tokens in a Hive account called
@israellycoolblog. Mr Lange is also the executive director of an Israeli registered
not-for-profit (amuta) called Israellycool Israel Advocacy. Mr Lange deposes that on
16 November 2022 his personal and Israellycool’s Facebook pages were suspended without
warning. Mr Lange selected an option which allowed him to disagree with the suspension. On
17 November 2022 the Israellycool Facebook page was published. On 19 November 2022
Mr Lange’s personal Facebook account became available again. Mr Lange deposes that as at
the date of his affidavit, 20 November 2022, he remains unable to post to the Israellycool
Facebook page.

180 Mr Hamilton submits that the suspension of Mr Lange’s personal account and the Israellycool
Facebook page was not coincidental and was in effect retribution for Mr Lange’s support of

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 55

 this proceeding. Mr Hamilton submits that the suspension is relevant to the public interest
which must be considered in determining whether the proceeding ought to be stayed.

181 I have considered Mr Lange’s affidavit and Mr Hamilton’s affidavit dated 20 November 2022.
I am not satisfied on the evidence before me that the suspension of Mr Lange’s personal
Facebook account and the Israellycool Facebook page was in response to Mr Lange’s support
of this proceeding. To the contrary, in Mr Lange’s blog post annexed to his affidavit, Mr Lange
states that he “highly suspects one of the antisemites I have exposed on the website reported
the Israellycool Facebook page. This has happened to me a few times before…”.

182 In any event, for the reasons given at paragraph [177] above, I am not satisfied that the evidence
relied on by Mr Hamilton in this respect weighs against my conclusion that the proceeding
should be permanently stayed.

Conclusion - Stay of proceedings

183 I am satisfied that this proceeding should be stayed because it would otherwise bring the
administration of justice into disrepute and undermine the integrity of the Court’s processes in
relation to representative proceedings. In a representative proceeding, the administration of
justice may be brought into disrepute where the manner in which it is conducted principally
serves the interests of the representative applicant and the litigation funder and leaves the
interests of group members inadequately protected. Such an arrangement is contrary to the
scheme of Part IVA of the Act.

184 In Bolitho (No 4), the issue was whether senior counsel and the solicitor for the applicants
should be restrained from acting in the proceeding in order to ensure the due administration of
justice and protect the integrity of the judicial process in circumstances where the solicitor
(through an indirect shareholding) and the senior counsel (though his spouse’s shareholding)
had substantial interests in the litigation funder and therefore had a financial interest in the
proceeding. Ferguson JA found that the solicitor’s multiple roles (as solicitor for the applicant
and as director, secretary and shareholder of the litigation funder) increased the likelihood of
conflicts and gave the appearance that his role as a solicitor and as an officer of the court was
compromised: at [53]. While Bolitho (No 4) is not directly on point, the observations of
Ferguson JA are apposite. In the present context, her Honour’s observations highlight the
potential in a particular case for conflicted representation, where the representative has a
substantial financial interest in the proceeds of the litigation, to tarnish the appearance of the
due administration of justice.

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 56

185 As I have set out above, there is the very real potential for conflicts of interests to arise and
influence Mr Hamilton’ conduct of the proceedings in ways that are to the detriment of Group
Members. The conflicts set out above arise from the many and varied roles Mr Hamilton
undertakes in and in relation to this proceeding and are not adequately addressed by the LFA,
CMP or the undertakings Mr Hamilton has proffered to the Court. Were the conflicts to arise,
there are real concerns about how Mr Hamilton would address them in circumstances where
he frames his claim as being primary and those of Group Members as being secondary. Even
with the best of intentions, the way in which the myriad of conflicts can manifest may be subtle
and insidious. The protection of Group Members is not appropriately addressed by Court
oversight, particularly in this proceeding where the Court is bereft of an independent solicitor,
that is an officer of the Court, acting on record for the representative applicant. I accept that a
permanent stay is regarded as a tool of last resort, however, I am satisfied that it is required in
this proceeding.

186 I note that in Wilkinson, Colvin J required notice to be given of a declassing application sought
by the respondent in circumstances where the applicant did not oppose the application but
sought for group members to be notified that the proceedings would inter alia, not continue as
a representative action. The purpose of the notice was to afford group members the opportunity
to consider whether they wished to secure legal representation or appoint another representative
applicant. The orders provided that if there were no objections from the group members who
received the notice, the representative proceedings would be de-classed. Similarly, in Paschke
v Secretary, Department of Social Services [2023] FCA 6 (Paschke PJ) (Colvin J) the
representative applicant submitted that group members should be notified “before any decision
was made to discontinue the case as a class action” citing Wilkinson. Colvin J found that notice
was not appropriate where the representative applicant had not demonstrated a proper basis for
his commencement of proceeding and where there was no other person proposed as a
representative applicant and no indication that any other person wished to maintain the
proceedings: Paschke PJ at paragraph [23]

187 In these applications, Mr Hamilton as the representative applicant did not agitate the issue of
notice. Mr Hamilton in his submissions has made clear that he considers the absence of legal
representation to be of benefit for Group Members, at least until after the determination of
liability. Similarly, Mr Hamilton has not undertaken that he be replaced as a representative
applicant or even indicated that there might be a willing alternative representative applicant
who is acceptable to the Funder. In these circumstances, I do not consider there to be utility in

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 57

 directing that the stay be suspended to allow a notice to be given to Group Members. I will,
however, order that Mr Hamilton give notice to Group Members and SUFB Token Holders of
the orders which I have made in determining the present applications and provide a link to the
reasons for judgment when they are published on the Court’s website.

De-classing order
188 As an alternative to a stay, the respondents submit that the Court should exercise its power
under s 33N(1) of the Act to de-class the proceeding. As I am satisfied that it is appropriate to
grant a permanent stay of the proceedings, it is not necessary to consider the alternative claim
for relief.

Costs
189 The respondents seek the costs of their applications. The respondents have been successful in
their applications and costs ordinarily follow the event. I do not see a basis for departing from
this course. I will order accordingly. In doing so, I will reserve to the parties a window of
opportunity to apply to vary the cost order if they wish to do so.

CONCLUSION
190 I am satisfied that to permit the proceedings to continue would bring the administration of
justice into disrepute. Accordingly, I will order that the proceeding be permanently stayed.

I certify that the preceding one

hundred and ninety (190) numbered
paragraphs are a true copy of the
Reasons for Judgment of the
Honourable Justice Cheeseman.

Associate:

Dated: 29 September 2023

Hamilton v Meta Platforms, Inc. [2023] FCA 1148 58