My Submissions for Feb 2023 Hearing in Crypto Class Action - Part 2 / 3

Public Interest Considerations

1. If the above weight of authority were not already an insurmountable
   obstacle to the Respondents' applications to stay these proceedings,
   the bar rises further still due to three important public interest
   considerations:

   1. there is a substantial public interest in the proceedings,
      including as private enforcement of Part IV of the CCA^[1];

   2. that the public interest in Part IV enforcement is enhanced by
      the proceedings being representative proceedings^[2];

   3. the private, civil enforcement of Division 1 - Cartel Conduct of
      Part IV of the CCA is a preliminary step in public enforcement
      of the criminal prohibitions on cartel conduct (CCA ss 45AF and
      45AG).

2. These proceedings also satisfy the public interest of aiding in the
   development of the law generally^[3]. In particular the proceedings
   involve:

   1. the first application for a No Adverse Cost Order under s 84(2)
      of the CCA;

   2. likely the first judicial examination of the new concerted
      conduct provisions in s45(1(c) of the CCA^[4];

   3. likely the first judicial consideration of the provisions
      previously known as s4D exclusionary provisions since their move
      into Division 1 - Cartel Conduct of Part IV of the CCA^[5]; and

   4. the first application of market based causation to
      cryptocurrency markets^[6].

3. The comments of Brennan J in Jago are apt to these proceedings due
   to the above considerations.

"Moreover, although our system of litigation adopts the adversary
method in both the criminal and civil jurisdiction, interests other
than those of the litigants are involved in litigation, especially
criminal litigation. The community has an immediate interest in the
administration of criminal justice to guarantee peace and order in
society. The victims of crime, who are not ordinarily parties to
prosecutions on indictment and whose interests have generally gone
unacknowledged until recent times, must be able to see that justice is
done if they are not to be driven to self-help to rectify their
grievances. ...

And it is likely to engender a festering sense of injustice on the
part of the community and the victim. The reasons for granting stay
orders, which are as good as certificates of immunity, would be
difficult of explanation for they would be largely discretionary. If
permanent stay orders were to become commonplace, it would not be long
before courts would forfeit public confidence. The granting of orders
for permanent stays would inspire cynicism, if not suspicion, in the
public mind."^[7]

1. In Epic, the Full Court examined in detail the public policy
   reasons for refusing to grant a stay of proceedings, which, as in
   these proceedings:

   1. involve alleged breaches of Part IV of the the CCA^[8];

   2. which "has, and is continuing to, adversely affect the state of
      competition in markets in Australia and very large numbers of
      Australians"^[9];

   3. which presents important opportunities for clarifying the
      law^[10], as noted above;

   4. which involves the Second Respondent, both as intervener in that
      appeal and as the respondent in very similar Part IV proceedings
      by Epic Games, Inc.^[11]

2. In Epic those reasons were strong enough to over-ride "a
   contractual agreement with Apple to litigate in the Northern
   District of California"^[12] and where there were proceedings in
   that jurisdiction which had already been heard^[13] and thus there
   was no risk of stultification of proceedings.

3. In Epic the Full Court concluded that "having regard to the issues
   in this proceeding, and the impact a determination by this Court
   will have on consumers in Australia, this is a very strong policy
   consideration that favours denying a stay of this proceeding."^[14]

4. The Applicant submits that the public policy considerations in these
   proceedings are as strong or even stronger than in Epic.

5. The level of harm to Australian consumers caused by the alleged
   breaches is arguably greater in these proceedings than in Epic.
   Not being able to download apps to your iPhone from non-Apple
   sources and indirectly paying the cost of the 30% commission Apple
   charges developers^[15] is a substantial detriment to consumers.

6. But not even hearing about, or not being able to obtain critical
   information about a new industry using new technology
   (blockchain/cryptocurrency) that seeks to revolutionise both finance
   and the internet and provide great consumer benefit is even worse.
   The delay in the development of the cryptocurrency industry caused
   by the Respondents' ad ban also prevented consumers receiving these
   benefits earlier.

7. Moreover the direct financial harm to the value of investments in
   cryptocurrency of millions of Australian consumers^[16] is arguably
   orders of magnitude larger than the pass through costs to millions
   of Australian consumers of allegedly excessively high app store
   commissions on small retail transactions via apps. The size of an
   individual consumer actual or potential investment in cryptocurrency
   is typically many orders of magnitude larger ($100s to $millions)
   than spending on apps and in-app purchases (tens or hundreds of
   dollars).

8. Cartel conduct is also the most serious and damaging type of
   anti-competitive conduct prohibited by Part IV and this is
   recognised by the criminal sanctions in ss 45AF and 45AG. Thus the
   public interest is even greater than in enforcement of non-criminal
   Part IV provisions such as in Epic.

9. These proceedings involve more opportunities to clarify the
   operation of the law (as outlined above) than Epic.

10. Finally, as a class action, if successful, these proceedings will
    provide direct financial compensation to millions of consumers
    harmed by the Respondents conduct, whereas in Epic the broad
    consumer benefit is both indirect and forward looking. It will not
    compensate consumers for damage suffered in the past.

11. Moreover, unlike Epic, if the Respondents' applications to stay
    proceedings, either permanently, or until further order, were
    granted it would lead to a stultification of these important public
    interest proceedings enforcing Part IV of the CCA.

12. There are no other viable mechanisms for enforcing Part IV of the
    CCA against the Respondents.

13. The ACCC has not commenced or even foreshadowed enforcement or
    investigatory action, despite numerous notifications by the
    Applicant^[17], the ACCC[']{dir="rtl"}s ongoing enquiries into the
    application of Part IV to the Respondents^[18] and the establishment
    of a prima facie case in these proceedings.

14. Traditional litigation funding firms have been unwilling to fund
    these proceedings^[19], despite it having a very high value book
    build^[20] and the establishment of a prima facie case.

15. The considerations of Brennan J above are particularly relevant
    given the characteristics of the Respondents which:

    1. are among the most powerful and wealthy companies in the
       world^[21];

    2. control crucial channels of communications and information flows
       relied upon by the public, businesses and governments
       alike^[22];

    3. have exercised their power to influence political, legislative
       and regulatory processes in their favour, de-platform entire
       industries and become the arbiters of acceptable speech.

16. These combination of factors represent power, wealth and influence
    on a scale never before held by corporations and surpassing that of
    many nation states. Moreover the processes by which they wield this
    power lacks any of the checks and balances by which sovereign
    democratic governments and judicial systems operate. In particular
    there is a complete lack of natural justice, procedural fairness,
    freedom of political discourse and other essential elements of rule
    of law in the manner in which they exercise their power^[23].

17. This is well illustrated by the following examples.

    1. The suspension of the Israellycool Facebook page by the First
       Respondent as set out in the 20 November 2022 affidavit of David
       Lange.

    2. The Respondents' admissions that in the first half of 2021 they
       both suspended former US President Donald Trump from their
       platforms^[24].

    3. The First Respondents' admission that in February 2021 it
       blocked news domains and pages from its Facebook platform in
       Australia. This occurred when the Australian Parliament was
       considering potential legislation making the First Respondent
       pay publishers for content. There is also evidence that it also
       took down pages of Australian hospitals, emergency services and
       charities as part of a deliberately over-broad definition of
       news.^[25]

    4. The banning of the advertising of the entire cryptocurrency
       industry, the subject matter of these proceedings, of which the
       core legal documents and public announcements of the ban have
       been admitted as authentic by the First Respondent.

    5. The use of automated tools to completely cut off the online life
       of a parent trying to get medical help for his child and the
       failure to rectify the clear injustice or provide proper
       procedural fairness as illustrated by the story of Mark as told
       by The New York Times.^[26]

18. In circumstances where a prima facie case and public interest has
    been established, refusal by this Court to exercise its jurisdiction
    over companies which have such power, wealth and influence and have
    wielded it in the manner outlined above against the sovereign nation
    of Australia itself, the President of the United States and
    arbitrarily and capriciously against both individuals and whole
    industries would lead any reasonable member of the public to
    conclude that these companies were above the law.

19. This would bring the system of justice into disrepute and undermine
    rule of law in Australia.

Mitigation and management of any harms using other Court powers

1. If the Court were to find that the concerns raised by the
   Respondents have any real validity, it must first examine whether
   such concerns can be managed or mitigated using other tools
   available to the Court before exercising the most exceptional and
   highly unusual power to stay these proceedings.^[27]

2. "The limited scope of the power to grant a permanent stay
   necessarily directs an enquiry whether there are other means by
   which the defect attending proceedings can be eliminated or
   remedied."^[28]

3. The Court has extensive powers and many tools, including under Part
   IVA of the FCAA, to manage proceedings, practitioners, costs and
   approve settlements.

4. Given the strong public interest considerations in these proceedings
   outlined above, the very strong arguments against staying
   proceedings and the real question as to whether the Court can now
   refuse to exercise jurisdiction having previously actively decided
   to exercise it on prima facie case and public interest grounds,
   the use of other tools available to the Court must be preferred to
   the extreme step of staying important public interest proceedings.

5. If, despite the Applicant's arguments regarding lack of conflict of
   interest above, the Court still has concerns about possible
   conflicts of interest arising from the Applicant's discretion to
   issue SUFB Tokens, then future issuances or sales of SUFB Tokens
   could be made subject to Court approval. The applicant is willing to
   make undertakings to this effect if the Court considers this
   necessary.

6. If, despite the benefits of self representation outlined above and
   the Applicant's extensive legal skills and experience outlined
   below, the Court still has concerns about the self-represented
   Applicant's ability or resources to handle the complexities of a
   large competition law class action or his obligations to group
   members, an option exists for the Court to enable the appointment of
   a top-tier law firm as solicitor on the record for the Applicant and
   senior counsel or to provide legal support and guidance for the
   self-represented applicant.

7. In Okanagan, an important public interest case in Canada^[29],
   "the Supreme Court of Canada went one step further by holding that,
   in very exceptional circumstances, the costs orders that may be made
   in favour of those bringing public interest litigation include
   ordering, early in the litigation, the defendant to provide advance
   financing to the plaintiff to enable them to proceed with the
   litigation."^[30] [emphasis in original]

8. The Canadian Supreme Court found that three requirements must be
   satisfied for such an order to be made:

   1. the litigation would be unable to proceed if the order were not
      made;

   2. the claim advanced by the plaintiff is prima facie meritorious;
      and

   3. the issues raised go beyond the individual interests of the
      plaintiff, are of public importance, and have not been resolved
      in previous cases.^[31]

9. These proceedings clearly meet all three requirements as outlined in
   these submissions and in prior submissions and evidence filed by the
   Applicant^[32].

10. As noted, in Public Interest Cost Orders, an order requiring the
    Respondents to provide advance financing or even fully fund the cost
    of providing the Applicant with suitable big firm and senior
    representation, or legal support is not foreign to the Australian
    legal landscape.^[33] Moreover, the Respondents' financial resources
    are so great that such funding would place no financial burden on
    them whatsoever.

11. Moreover, while this would be an exceptional step, if the Court
    considers exceptional steps are necessary to deal with the
    Respondents' concerns, it is open to the Court to make such orders
    and, on the basis of the above authority, this Court is obligated to
    adopt these in preference to staying proceedings.

Legal Basis for Declassing Proceedings

1. In Perera, the Full Federal Court found that the power of the
   Court under s 33N of the FCAA to order that proceedings no longer
   continue as representative proceedings is quite limited in scope and
   "requires consideration of the comparator of whether it is in the
   interests of justice that proceedings be determined in numerous
   individual non-representative proceedings."^[34]

2. This comparison requires each of the criteria at s 33N(1)(a) - (d)
   to be assessed for both the current proceedings and numerous
   individual non-representative proceedings.^[35]

3. "Section 33N(1) does not involve a comparison between the
   representative proceedings and another identical or hypothetical set
   of representative proceedings."^[36]

4. "The inquiry is not whether the common issues might be more
   efficiently resolved by way of some other representative
   proceedings."^[37]

5. In assessing each of the s 33N(1) criteria it is readily apparent
   that the interests of justice are clearly in favour of the
   proceedings remaining as representative proceedings.

6. s 33N(1)(a): In these proceedings there are tens if not hundreds of
   millions of group members. The costs of millions of individual
   non-representative proceedings would obviously dwarf that of these
   representative proceedings.

7. s 33N(1)(b): These proceedings include damages claims on numerous
   different bases and in relation to numerous different sub-classes
   for millions of people. No non-representative proceedings could
   obtain damages for persons other than the applicant in that
   proceeding.

8. s 33N(1)(c): While these proceedings involve millions of group
   members, it is not until the damages stage that the particular
   circumstances of group members will need to be considered. The
   Applicant's claims in relation to Part IV breaches rely entirely
   upon the conduct of the Respondents and not the particular conduct
   of the Applicant or any group members. Thus liability can be
   established in a very efficient and effective way by representative
   proceedings whereas individual proceedings would involve massive
   duplication of resources.

9. s 33N(1)(d): The Respondents allegations of conflict of interest
   arising from the litigation funding arrangements do not fall within
   the terms of s 33N(1)(d). The litigation funding arrangements are
   not relevant to the appropriateness of representative proceedings
   themselves compared to non representative proceedings.

10. Moreover, there are many other reasons why these representative
    proceedings are more appropriate method to pursue the group members
    claims than numerous non-representative proceedings. These include:

    1. because many group members's claims are too small to be
       economically pursued individually, especially against the
       economic might of the Respondents;

    2. because many group members rely upon the services of the
       Respondents for their personal and business communications they
       will naturally be reluctant to bring proceedings against the
       Respondents because of the risk of their accounts being
       suspended or being de-platformed;

    3. because Part IV competition law breaches in general and
       unlawful cartels in particular are broad economic wrongs they
       inherently have a large number of victims that may not even
       realise they have been harmed by the unlawful conduct.

11. Indeed these proceedings amply fulfil the three internationally
    recognised objectives of class action devices:

"First, by aggregating similar individual actions, class actions serve
judicial economy by avoiding unnecessary duplication in fact-finding
and legal analysis. Second, by distributing fixed litigation costs
amongst a large number of class members, class actions improve access
to justice by making economical the prosecution of claims that any one
class member would find too costly to prosecute on his or her own.
Third, class actions serve efficiency and justice by ensuring that
actual and potential wrongdoers modify their behaviour to take full
account of the harm they are causing, or might cause, to the
public."^[38]

First Respondent's Contingency Fee Argument

1. The First Respondent asserts at [51 - 64] that the Applicant is
   obtaining prohibited contingency fees by receipt of SUFB Tokens for
   non-financial contributions to the prosecution of proceedings.

2. An examination of the actual terms of prohibition on contingency
   fees in s 183 of the Legal Profession Uniform Law (NSW), which
   the First Respondent conspicuously fails to cite, reveals that it
   clearly has no applicability to the Applicant's receipt of SUFB
   Token for non-financial contributions.

"(1) A law practice must not enter into a costs agreement under which
the amount payable to the law practice, or any part of that amount, is
calculated by reference to the amount of any award or settlement or
the value of any property that may be recovered in any proceedings to
which the agreement relates."

1. In these proceedings the Applicant is not a law practice and there
   is no costs agreement. The First Respondent has accepted that the
   Applicant is not a law practice^[39] and has not alleged that there
   is a costs agreement.

2. The First Respondent then cites and (mis)quotes^[40] the 62 year old
   case of Clyne v NSW Bar Association (1960) 104 CLR ("Clyne")
   which, again, is clearly inapplicable on its own terms.

3. In considering the applicability of maintenance and champerty (which
   were then still illegal) to solicitors, the High Court said that a
   solicitor "must not 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 that may be
   recovered by his client in a proceeding..."^[41]

4. In these proceedings there is no solicitor, no client and no bargain
   between them. The First Respondent has accepted the first two facts
   and implicitly the third.^[42]

5. Clyne was decided 33 years before the Maintenance, Champerty and
   Barratry Abolition Act 1993 (NSW) and 46 years before Fostif
   decided that the policy of the law had changed: "[t]he law now
   looks favourably on funding arrangements that offer access to
   justice so long as any tendency to abuse of process is
   controlled."^[43]

6. In light of the above ratio decidendi in Fostif it is
   questionable whether Clyne is still good law, at least in Federal
   Courts, on the contingency fee issue. The statements regarding
   contingency fees in Clyne are obiter dicta, as the Court there
   was not called upon to determine whether there were unlawful
   contingency fees.

7. The First Respondent cites Bolitho v Banksia Securities Ltd (No 4)
   [2014] VSC (Bolitho No 4) as authority for Clyne still
   being good law on the contingency fee issue, but that case
   inexplicably fails to consider the High Court authority of Fostif.
   Fostif is binding on this Court while Bolitho No 4, being a
   first instance Victorian case considering Victorian rather than
   uniform national legislation, is not^[44].

8. In any case, the issue in Clyne that led to the High Court's
   comments regarding contingency fees arose from a consideration of
   the application of the then law of maintenance and champerty to
   solicitors acting for a client. The effect of these comments is that
   maintenance of proceedings is permitted to solicitors (that is their
   legitimate business), but champerty is not.

9. The abolition of the crimes and torts of maintenance and champerty
   made both permissible to all, subject to remaining public policy
   considerations. Fostif then reformulated these public policy
   considerations in relation to litigation funding.

10. It can thus be seen that residual public policy concerns about
    maintenance in general and champerty in particular are the source
    for all the First Respondent's cited legal authority in relation to
    contingency fees.^[45]

11. These cases and resulting concerns about contingency fees are
    completely inapplicable because the litigation funding arrangements
    in the current proceedings do not involve maintenance at all, and
    thus cannot involve champerty.

12. Maintenance is variously described as:

    1. the "assistance or encouragement of a party to an action in
       which the maintainer had no interest"^[46] (emphasis added)

    2. "the act of assisting the plaintiff in any legal proceedings in
       which the person giving the assistance has no valuable
       interest, or in which he acts from any improper motive.^[47]
       (emphasis added)

13. Thus it is completely impossible for the applicant in any
    proceedings to be engaged in maintenance.

14. In these proceedings not only does the Applicant have an interest in
    the subject matter of proceedings independent of any litigation
    funding arrangement, but so too does JPB Liberty and all Token
    Holders, who hold Listed Cryptocurrencies and thus are group members
    in the proceedings.

15. In addition, because these are proceedings under Part IV of the CCA,
    seeking an injunction under s 80 of the CCA, they are proceedings
    which can be brought by anyone and where everyone has an interest -
    that interest being the public interest.^[48]

16. There can be no champerty without maintenance as champerty is a
    sub-species of maintenance^[49].

17. Thus, when analysed from first principles using binding High Court
    authority, it is a complete absurdity to accuse the Applicant (or
    any applicant) of obtaining prohibited contingency fees.

Professional Experience

1. The Respondents have unwisely^[50] chosen to take issue with the
   Applicant's professional experience, making incorrect and
   misleading claims. This is despite it being clear from the evidence
   and other documents filed in these proceedings that the Applicant
   is a very experienced and senior solicitor with substantial
   competition law, advocacy and class action experience^[51].

2. Both Respondents incorrectly and misleadingly allege that the
   Applicant is "inexperienced with conducting class action
   litigation" and that "there is no evidence to suggest that Mr
   Hamilton has any substantial experience in conducting class actions
   in Australia."^[52]

3. These submissions are misleading because the majority of legal
   representatives conducting class action litigation in Australia
   have no prior experience in doing so.

"Since 2005, between 51% and 70% of legal representatives acting for
class representatives had not previously acted on a class action. The
highest number, but lowest proportion, of inexperienced plaintiff
lawyers was shown to be from 2014 to 2017, when 51% (22) of legal
representatives in class action proceedings had no prior experience in
running class actions."^[53]

1. These statements are incorrect because the Applicant does indeed
   have experience in conducting class action litigation, which is
   substantial by the standards set out above, and the evidence of
   this has been on the Court record in these proceedings for over two
   years.

2. In particular, the case of Shurat HaDin, Israel Law Centre v Lynch
   No. 2 [2014] FCA 413 (Shurat HaDin No 2), a representative
   proceedings in which the Applicant acted as solicitor on the record
   and advocate and obtained the second cost-capping order granted in
   Federal representative proceedings^[54] is cited in three documents
   previously filed in these proceedings.^[55]

3. There are four reported judgements in those representative
   proceedings in which the Applicant acted as solicitor on the record
   and advocate, all of which are easily discoverable by a simple
   search for "APS Hamilton" on www.austlii.edu.au.^[56]

4. This case has had substantial value as precedent^[57] and Shurat
   HaDin No 2 is cited a number of times in an important recent law
   review article on the topic of public interest costs orders in
   federal class actions^[58], which is clearly relevant to these
   proceedings, especially the Applicant's No Adverse Cost Order
   application.

5. Moreover, in baselessly impugning the Applicant's ability to manage
   his fiduciary obligations to group members and the complexity and
   technicality of cartel conduct representative proceedings, the
   Respondents ignore the Applicant's legal seniority, experience,
   skills and achievements as set out in his 2009 CV.

6. In particular, the Applicant's role and achievements in the
   landmark judgements in LK v Director-General, Department of
   Community Services [2009] HCA 9 (11 March 2009) (LK)^[59]
   and Australian Communications Network Pty Ltd v Australian
   Competition and Consumer Commission [2005] FCAFC 221 (25
   October 2005) (ACN)^[60] (ACCC application for special leave
   to the High Court refused) represent career pinnacles which few
   solicitors ever achieve. The renown legal practitioners with whom
   the Applicant worked and successfully opposed both directly in
   Court, and via legal arguments in these cases are a matter of
   public record.

7. Thus not only does the Applicant have substantial experience in all
   areas of the law which are relevant to these proceedings, the
   Applicant has made substantial contributions to the development of
   the law over his legal career.

8. Something also must be said about two additional matters:

   1. the lack of respect for the Applicant's legal seniority to each
      of the legal practitioners representing the Respondents in
      these proceedings - the Court can take judicial notice of the
      admission dates of all practitioners before it; and

   2. the lack of competition law experience of most of the legal
      representatives of the Respondents. The Court can take judicial
      notice of the biographies of solicitors on the record and
      counsel on their respective websites^[61]. Only counsel for the
      Second Respondent lists competition law experience in his
      biography.

9. This is in sharp contrast to the extensive competition law
   experience of the Applicant as set out in the 2009 CV, particularly
   in the period 1994 to 2008. Telecommunications regulatory law
   involves a significant competition law component, especially when
   working for a former monopolist.

10. It is ironic that in proceedings which substantially revolve around
    the alleged unlawful cartel and anti-competitive concerted conduct
    of the Respondents, the Respondents and their legal representatives
    are engaging in cartel-like concerted conduct by advocating for
    self-represented applicants to be excluded from bringing
    representative proceedings.

11. The Respondents' legal representatives are competitors in relation
    to the provision of legal services to clients and advocacy services
    in Court and the Respondents are competitors in relation to the
    acquisition of these services. Their joint advocacy of excluding
    self-represented applicants may be considered an arrangement or
    understanding with the purpose or effect of providing for the the
    controlling or maintaining of the price for legal and advocacy
    services by excluding competition from self-represented
    applicants^[62]. It may also be considered concerted conduct with
    the purpose or effect of substantially lessening competition in the
    market for provision of class action legal and advocacy
    services^[63].

12. Self-representation competes with the legal services offered by
    solicitors and barristers and concerted conduct to exclude a class
    of actual or potential competitors is problematic from both a
    competition law and access to justice perspective.

13. Perhaps if the Respondents' legal representatives had more
    experience in competition law, the core subject matter of these
    proceedings, rather than just litigation generally, they would see
    how inappropriate it is to attempt to exclude self-represented
    applicants from bringing representative proceedings.

Professional Conduct

1. The First Respondent has also unwisely chosen to raise the case
   management history of these proceedings in an attempt to impugn the
   Applicant's professional conduct and suitability to be a
   representative applicant.

2. A simple review of the correspondence preceding the 25 October 2022
   case management hearing and the concessions by counsel for the
   First Respondent in oral argument, reveals that hearing was
   necessitated in part by the Respondents' failure to accept the
   Applicant's repeated offer from 22 September 2022 onwards to create
   and provide a document containing information regarding his related
   parties, but only to the Respondents' external legal
   representatives^[64]. This offer was only finally accepted in oral
   submissions at the 25 October 2022 case management hearing.^[65]

3. The hearing was further necessitated by the terms of the document
   production orders drafted by the Respondents not being apposite to
   the nature of the location of the relevant material (the Hive
   blockchain) and genuine concerns to protect the identity and
   private information of group members (including Token Holders), in
   relation to which the Applicant was successful in obtaining
   suitable protections.

4. This is an example of the Applicant being perfectly capable of
   protecting the interests of the group members and managing his
   obligations to the Court.

5. These proceedings have been on foot since August 2020 with very
   extensive pleadings, evidence and submissions filed by the
   Applicant. The Applicant has met every Court ordered timeline for
   filing of material and has successfully navigated at least seven
   case management and interlocutory hearings before two Judges, prior
   to being granted leave to serve. Courts are naturally, initially
   skeptical of a self-represented applicant bringing a class action
   against the largest companies in the world for billions of dollars
   in damages. The Applicant overcame that initial skepticism and has
   successfully established a prima facie case and public interest
   in these proceedings.

6. In contrast, both Respondents failed to file their submissions on
   this interlocutory application by the deadline set out in order 7
   of the 27 October 2022 Orders, despite having months to prepare
   them and two weeks to finalise them after the serving of the
   Applicant's evidence.

7. The First Respondent failed to file its interlocutory application
   by the deadline set out in order 2 of the 21 September 2022 Orders,
   despite it only being 4 sentences long and already in draft form at
   the first case management hearing on 21 September 2022^[66]. There
   was no real basis for this failure arising from the disputes
   regarding document production. This is evident from the First
   Respondent's filed interlocutory application being substantially
   the same as foreshadowed at the first case management hearing and
   by the fact that the Second Respondent filed on time and later
   sought a small amendment to match the First Respondent's
   application.

8. The First Respondent has conspicuously mis-named the Applicant as
   "Paul Stuart Alexander Hamilton" in the 8 November 2022 affidavit
   of Mark Anthony Wilks, thus also misnaming these proceedings. This
   was brought to the attention of the First Respondent on 24 November
   2022 and there has been no response from the First Respondent.

9. These are relatively minor issues, but are nonetheless
   unprofessional and undermine the implicit assumption underlying the
   Respondent's attacks on self-represented applicants, that only a
   big firm of solicitors can effectively conduct representative
   proceedings.

10. A far more serious issue is the First Respondent's conduct in
    relation to David Hans Lange and Israellycool Israel Advocacy, as
    set out in the 20 November 2022 affidavit of David Hans Lange and
    the 21 November affidavit of Andrew Paul Stuart Hamilton at [10 -
    13].

11. The First Respondent's legal representatives have either allowed or
    failed to prevent their client from suspending, arbitrarily and
    without legitimate cause, the Facebook account of the only Token
    Holder (a group member in these proceedings) whose Facebook page
    was readily identifiable from the documents produced or listed by
    the Applicant in response to document production orders. This is
    despite a number of specific warnings about such conduct by the
    Applicant prior to the relevant documents being produced.

12. The First Respondent failed to respond to the Applicant's
    correspondence of 17 November 2022^[67] raising its concerns about
    such conduct for almost 4 weeks. A letter containing a bare denial
    was received by the Applicant less than 24 hours before these
    submissions were due to be filed and served.

13. It is clear that the administration of justice will be undermined
    if respondents in representative proceedings are permitted to
    suspend or withdraw services to those persons who join or fund
    representative proceedings against them.

14. No litigation funder would fund and no group member would be part
    of proceedings against banks, telecommunications and utility
    companies or big tech companies if there was even the perception or
    possibility that doing so could lead to the withdrawal of these
    services which are essential to modern life and business.

15. This would substantially undermine Part IVA of the FCAA, bring the
    administration of justice into disrepute and could potentially be
    considered a perversion of the course of justice, especially when
    the representative proceedings involve public interest in enforcing
    Part IV of the CCA and may lead to criminal cartel prosecutions.

Cases cited by Respondents

[Wilkinson v Wilson Security Pty Ltd]{.underline}

1. As will already by evident from the examination of the Full Court
   authority regarding the correct interpretation of s33N of the FCAA
   in Perera above, the observations regarding s33N by Colvin J in
   Wilkinson v Wilson Security Pty Ltd [2022] FCA 756
   (Wilkinson) are, with respect, plainly wrong.

2. Wilkinson failed to either recognise or apply the binding
   authority of Perera.

3. In addition Wilkinson has no precedential value or applicability
   to the present proceedings because:

   1. the representative applicant did not contest the s33N
      application;

   2. it was decided on the papers without the benefit of a hearing;

   3. respondent counsel clearly failed in their obligation to bring
      the binding authority of Perera, and other relevant authority
      regarding fundamental rights to be heard by the Courts, to the
      attention of the Court^[68];

   4. the self-represented applicant had no legal experience and was
      a security guard by profession - none of the concerns Colvin J
      raised about that applicant[']{dir="rtl"}s capability to
      prosecute proceedings or meet their fiduciary obligations are
      applicable here;

   5. Colvin J, with respect, made an error of law in stating that
      "Part IVA is silent on the question whether a representative
      applicant can conduct representative proceedings without being
      legally represented." In fact Part IVA makes no mention of
      lawyers at all and the right of an an applicant to bring
      representative proceedings is structurally an extension of
      existing fundamental rights to be heard before the Courts.

   6. Colvin J cites a recommendation from Australia Law Reform
      Commission (ALRC) Report No 46^[69] published in 1988, that
      representative applicants be legally represented^[70] without
      noting:

      1. the date of ALRC 46, 34 years ago;

      2. the fact that Parliament declined to implement this
         recommendation, while drafting Part IVA of the FCAA on the
         basis of other recommendations of ALRC 46; and

      3. that the subsequent report on representative proceedings in
         2018, ALRC 134, did not made a similar recommendation;

   7. the Fair Work jurisdiction is a very different one from Part IV
      of the CCA. In particular it lacks the public interest
      dimension referred to in Hamilton at [40].

4. The First Respondent attempts to justify both Respondents' heavily
   reliance upon Wilkinson by incorrectly claiming that this Court is
   bound to apply Colvin J's reasoning unless it is plainly
   wrong.^[71]

5. But Farah does not stand for this proposition at all. Instead it
   states at [135]:

"Intermediate appellate courts and trial judges in Australia should
not depart from decisions in intermediate appellate courts in another
jurisdiction on the interpretation of Commonwealth legislation or
uniform national legislation unless they are convinced that the
interpretation is plainly wrong." [emphasis added]

1. Farah at [135] cites Australian Securities Commission v
   Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 112 ALR 627
   which states at [4]:

"Although the considerations applying are somewhat different from
those applying in the case of Commonwealth legislation, uniformity of
decision in the interpretation of uniform national legislation such as
the Law is a sufficiently important consideration to require that an
intermediate appellate court - and all the more so a single judge -
should not depart from an interpretation placed on such legislation
by another Australian intermediate appellate court unless convinced
that that interpretation is plainly wrong". [emphasis added]

1. Wilkinson is not a decision of an "intermediate appellate court".
   It is a trial judge decision made without a contradictor on the
   papers and the "reasoning" cited by the Respondents is obiter
   dictum, not the ratio decidendi of the case.

2. I note that in addition to mis-stating the legal effect of Farah,
   Respondent counsel in these proceedings have also failed to bring
   the binding authority of Perera to the attention of the Court in
   relation to the interpretation of s33N despite citing it elsewhere
   in submissions.

3. In such circumstances where respondent counsel fail in their duty to
   the Court to disclose binding authority, it is perhaps not
   surprising that a self represented applicant with no legal
   experience, may be unable to effectively prosecute their case.
   However the remedy for this is to enforce opposing counsel's
   obligations, not to attempt to extinguish fundamental rights to be
   heard by the Courts.

[Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd]{.underline}

1. The First Respondent cites Magic Menu at [23] and [52] as
   support for the following propositions:

   1. 'that a stay may be justified "... where there may be real
      potential for an abuse of the Courts' processes"';

   2. that the ability of the Courts to treat agreements for
      maintenance as contrary to public policy, and therefore illegal,
      remains unaffected by the statutory provisions (abolishing the
      torts and crimes of maintenance and champerty).

2. On both propositions, Magic Menu has been superseded by the
   decision of the High Court in Fostif, which the Respondents
   conspicuously fail to bring the to the Court's attention.^[72]

3. Moreover the First Respondent's partial quote from Magic Menu at
   [23] of its submissions is misleading, both as to what the Court
   actual said and the fact that it was obiter dicta, not a holding
   of the Court.

4. The full text of the relevant paragraph is set out below:

"The New South Wales Law Reform Commission concluded, in its
Discussion Paper, with the observation that further consideration as
to the remedies which might be provided to the other party with
respect to interference in litigation, was necessary. These will
concern costs but may extend to other aspects of compliance with
procedures. Where more is involved, and where there may be the real
potential for an abuse of the Courts' processes it seems to us that a
stay might, in some cases, be justified. Whilst it had been said in
Martell v Consett Iron(388-9) (referred to in this respect in Hodges v
New South Wales [988] HCA 9; (988) 62 ALJR 90, 93) that it would not
be right to stay a maintained action, that was with respect to an
action brought on the tort and which had not been determined. It could
not then have been concluded that there was unlawful conduct and the
stay was, for that reason, premature. But that is different from the
position where an abuse of process has occurred, or is likely to. The
question whether a stay ought then be imposed was left open by Atkin
LJ in Wild v Simpson [99] 2 KB 544, 564. It is noteworthy however
that here a stay of the proceedings has never been sought. That
approach is consistent with there having been no allegation of an
abuse of process pleaded. We shall refer to this again later in these
reasons."^[73] (emphasis added)

1. It is simply not good law to state that "a stay may be justified
   where there may be real potential for an abuse of the Courts'
   processes". The correct legal test and considerations are set out
   under the heading "Legal Basis for Staying Proceedings" above.

2. The second proposition for which the First Respondent relies upon
   Magic Menu is again substantially narrowed and constrained, at
   least in the context of litigation funding, by the High Court's
   decision in Fostif^[74].

[Bolitho v Banksia Securities Limited (No 4)]{.underline}

1. The inapplicability of Bolitho No 4, to these proceedings has
   already been examined briefly above under the heading "First
   Respondent[']{dir="rtl"}s Contingency Fee Argument."

2. Bolitho No 4 concerns a solicitor and senior counsel, acting for a
   representative applicant (Mr Bolitho) where the solicitor and
   counsel (and their related parties) held a 90% interest in the
   litigation funder funding the proceedings, which was charging a 30%
   success fee.

3. The Victorian Supreme Court's concerns about the above arrangement
   arose primarily from concerns that it skirted the prohibition on
   solicitors charging contingency fees.^[75] It was not suggested
   that the legislative prohibition on contingency fees was directly
   applicable on its terms.

4. Instead the Court relied upon the obiter in Clyne^[76]
   analysing the application of the then prohibitions on maintenance
   and champerty, which concluded that a solicitor charging contingency
   fees was a form of champerty and was thus prohibited.

5. However as noted above, these concerns can never arise in relation
   to the applicant in any proceedings because the applicant, by
   definition, can never engage in maintenance of his own case and thus
   cannot engage in champerty of his own case.

6. While relying heavily upon Clyne, Bolitho No 4 failed to
   consider either the abolition of the torts and crimes of maintenance
   and champerty or the far more recent and binding decision of
   Fostif which stated that the policy of the law had changed.

7. It thus, with respect, cannot be considered good law on the issue of
   solicitors charging contingency fees, even at the time it was made.

8. Since the decision in Bolitho No 4, the Victorian Parliament has
   passed legislative changes permitting solicitors to obtain
   contingency fees in class actions^[77] and ALRC 138 recommends that
   contingency fees be permitted nationally^[78] This substantially
   changes the fundamental basis on which this case was decided.^[79]
   The views of a fair-minded, reasonable informed member of the public
   (the Observer as defined in that case) about these matters have
   changed substantially since 2014.

9. Thus is it certainly not good law today on the issue of solicitors
   charging contingency fees.

10. In any case, the case is directed completely at the roles of
    solicitor on the record and senior counsel, and the Court's
    supervision of them, not the role of applicant. It is thus
    completely inapplicable to these proceedings where there is neither
    a solicitor on the record nor senior counsel appearing.

11. Ordering a practitioner not to act is also a very different (and far
    less serious) remedy than permanently staying proceedings that have
    been regularly brought.

12. This is further reinforced by the fact that the Court in Bolitho No
    4 refused Mr Godfrey's application to restrain Mr Bolitho from
    continuing to retain the solicitor and senior counsel, instead
    ordering the solicitor and senior counsel to cease acting for Mr
    Bolitho. The Court noted that its inherent jurisdiction is not about
    restraining litigants from retaining lawyers of their choice.^[80]

13. The Court's statement that its inherent jurisdiction does not allow
    it to interfere with a litigant's choice as to how he is represented
    in Court, applies not just to choice of lawyers but also the choice
    to act for oneself.

14. As a first instance judgement from another Australian jurisdiction
    in relation to Victorian state law (the powers of the Victorian
    Supreme Court) rather than Federal or national uniform law it is
    doubly not binding on this Court, and should not be considered
    persuasive for the reasons set out above.

15. Finally, one of the factors considered by the Court in Bolitho No 4
    was that there was little risk of stultification of
    proceedings.^[81] In contrast, in these proceedings the risk of
    stultification is great. Further, the risk of stultification of an
    important public interest case affecting millions of Australians
    cannot be compared to a small number of bond holders who had other
    representation options to pursue their claims.

[Bolitho v Banksia Securities Limited (No 18) (Bolitho No
18)]{.underline}

1. The First Respondent cites Bolitho No 18^[82] as support for the
   proposition that the Applicant "is in substance acting as a
   solicitor in the present proceedings, providing legal services to
   himself as lead applicant"^[83].

2. Bolitho No 18 provides no support for this highly dubious
   proposition whatsoever. It is not a case dealing with a self
   represented applicant who is also a solicitor. It deals with the
   control exercised by a solicitor (Mark Elliot) who was not the
   solicitor on the record in the relevant proceedings.

3. All the analysis of this issue in Bolitho No 18 is based on their
   being a solicitor-client relationship, where the solicitor in that
   relationship was not the real solicitor in control of the
   proceedings.

4. In these proceedings there is no solicitor-client relationship. The
   suggestion that the Applicant is providing legal services to himself
   is an entirely artificial attempt to create a solicitor - client
   relationship inside the Applicant's head.

5. The suggestion that a self represented applicant should be
   considered to be providing legal services to himself is entirely
   contrary to the Legal Profession Uniform Law (NSW) 2014
   ("LPUL").

6. It would have the consequence that every self represented applicant
   who was not a qualified entity was in breach of s 10 of the LPUL -
   prohibition on unqualified entities engaging in legal
   practice.^[84]

[Clairs Keeley (a Firm) v Treaty (2004) 29 WAR 479 (Clairs
Keeley)]{.underline}

1. The first and obvious point to be made about Clairs Keeley is that
   it is clearly no longer good law, having been overriden by
   Fostif^[85], which deals with the same subject matter and issues
   and rules that the policy of the law with regard to litigation
   funding has changed.

2. The second point is that Clairs Keeley deals with maintenance and
   champerty, whose inapplicability to these proceedings has been
   analysed in detail above. In addition Western Australia has not yet
   abolished the torts of maintenance and champerty^[86] unlike NSW,
   where the applicant is a solicitor and JPB Liberty is registered.

3. The third point is that the main concern of the Court in Clairs
   Keeley is the degree of control that the third party litigation
   funder would exercise over the conduct of proceedings^[87]. The
   Court is concerned that the proceedings would be controlled
   primarily by the funder rather than the applicant.

4. This concern is obviously not applicable to these proceedings
   because the Applicant controls JPB Liberty and thus the proceedings
   are controlled exclusively by the Applicant. Companies are
   controlled by their directors and shareholders, not the other way
   around.

5. In any case, the basis of Courts' concern regarding a funder
   controlling a class action rather than the applicant is that the
   funder is not in front of the Court or directly subject to its
   control.

6. This is not the case here. The person controlling these proceedings
   is the Applicant who is most certainly in front of the Court.

---

Footnotes / Endnotes

---

1. Hamilton at [40] ↩

2. ibid. ↩

3. See Epic at [105] and [107] and Public Interest Cost
   Orders at page 663 citing Australian Law Reform Commission, Costs
   Shifting: Who Pays for Litigation (Report No 75, 1995) (ALRC
   75) 147 recommendation 45. ↩

4. See ConSub at [125 - 131]. ↩

5. See ConSub at [32 - 34]. ↩

6. See ConSub at [133 - 151]. ↩

7. Jago per Brennan J at [28]. See also Mason CJ at [20] ↩

8. Epic at [2]. Epic involves alleged breaches of ss 46, 47
   and 45 (a) & (b) of the CCA while these proceedings involve alleged
   breaches of ss 45AK, 45AJ, 45 (a) & (b) and 45 (c) of the CCA. ↩

9. Epic at [97] ↩

10. Epic at [105] and [107]. ↩

11. Epic at [18]. ↩

12. Epic at [6]. ↩

13. Epic at [8 - 9]. ↩

14. Epic at [108]. ↩

15. Epic at [4]. ↩

16. The value of Australian consumer cryptocurrency holdings in early
    2018 can be roughly estimated from the sample of the values of
    funded group members cryptocurrency holdings of can be seen at MAW -
    2 pages 196 -211, noting that over 25% of funded group members are
    Australian and estimates of the number of Australian cryptocurrency
    holders - See [9 - 10] and Annex B of Andrew Hamilton 23 October
    2022 Affidavit. ↩

17. See [36 -37] & [44] of 27 August 2020 affidavit of Andrew
    Hamilton and [5] of 20 November 2022 affidavit of Andrew Hamilton. ↩

18. See ACCC Digital Platforms Inquiry - Final Report ("ACCC
    Report") at Annex L to 10 December 2020 affidavit of Andrew
    Hamilton, particularly Recommendations 4, 5 on page 31and ongoing
    investigations on page 38. The Court may also take judicial notice
    under s 144 of the Evidence Act 1995 of the subsequent ACCC
    inquiries and reports regarding Digital Platforms. ↩

19. See [39 - 43] of 27 August 2020 affidavit of Andrew Hamilton
    and [7] of 20 November 2022 affidavit of Andrew Hamilton. ↩

20. See MAW - 2 page 453 ↩

21. See the Respondents' 2019 Annual Reports at Annexes C and D of 27
    August 2020 affidavit of Andrew Hamilton, particularly their revenue
    and cash reserves and the ACCC Report, particularly at page 4.

    "A large part of this Inquiry has focussed on Google and Facebook.
    This reflects their influence, size

    and significance. Google and Facebook are the two largest digital
    platforms in Australia and the

    amount of time Australian consumers spend on Google and Facebook
    dwarfs other rival applications and websites."

    The Court may also take judicial notice of the power and wealth of
    the Respondents under s 144 of the Evidence Act 1995. ↩

22. See ACCC Report page1 "The ubiquity of the Google and Facebook
    platforms has placed them in a privileged position. They act as
    gateways to reaching Australian consumers and they are, in many
    cases, critical and unavoidable partners for many Australian
    businesses, including news media businesses." ↩

23. See examples and the ACCC Digital platform services inquiry
    Interim Report No. 5 - Regulatory reform, September 2022 at section
    4.2.3 on page 90 ,where the ACCC expresses concerns about digital
    platforms unqualified discretion to suspend or terminate users
    accounts and block content and section 4.3 on pages 98 - 102, where
    the ACCC criticises the Respondents internal dispute resolution
    processes for "lack of transparency", "lack of independence and
    oversight over how digital platforms' terms, conditions and policies
    are applied or enforced and how appeals are assessed." at section
    4.3.1 on page 98. ↩

24. See also pages 5-7 of Annex A to Andrew Hamilton 23 October 2022
    affidavit. ↩

25. id. at pages 9 -14. ↩

26. id. at pages 15 - 19. ↩

27. Fostif per Fostif Majority at [93] and [95]. ↩

28. Jago per Gaudron J at [16], See also Mason J at [15 - 18],
    Brenan J at [17 - 20] and [23]; Deane J at [10 - 11] and
    Toohey J at [24 - 29] all making the same point. ↩

29. British Columbia (Minister of Forests) v Okanagan Indian Band
    [2003] 3 SCR 371, 398 [38]

    (LeBel J for McLachlin CJ, Gonthier, Binnie, Arbour, LeBel and
    Deschamps JJ) (Okanagan). ↩

30. Public Interest Cost Orders at 665, citing Okanagan at 400
    [41]. ↩

31. Okanagan at 399--400 [40]. ↩

32. See ConSub and the Applicant's submissions to the 11 September
    2020 interlocutory hearing at [28 - 64] (regarding the Applicant's
    application for a No Adverse Costs Order). ↩

33. Public Interest Cost Orders at footnote 82, citing the
    Australian Tax Office's Test Case Litigation Program. ↩

34. Perera at [60]. ↩

35. id. at [60 - 61]. The Second Respondent cites Kikuyu v
    Hazzard [2022] FCA 310 at [4] as authority for a different test
    than established in Perera. However, with respect, this case is
    not good law on the question because it failed to cite or consider
    the binding authority of Perera. Lee J did not have the benefit of
    a contradictor as the de-classing was unopposed and the judgement
    was delivered ex tempore. ↩

36. id. at [61]. ↩

37. ibid. ↩

38. Public Interest Cost Orders at page 659 citing Hollick v City of
    Toronto [2001] 3 SCR 158, 170 [15] (McLachlin CJ for the
    Court). ↩

39. Meta submissions at [11]. ↩

40. The quote from Clyne at 203 set out on page 18 of Meta's
    submissions is missing the words "since it is, in a sense, the
    business of a solicitor" in the second line between "solicitor" and
    "to maintain". ↩

41. Clyne at 203. ↩

42. Meta Submissions at [11]. ↩

43. Fostif at [65] per Fostif Majority. ↩

44. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
    ("Farah") at [135] per Gleeson CJ, Gummow, Callinan, Heydon
    and Crennan JJ; Australian Securities Commission v Marlborough Gold
    Mines Ltd [1993] HCA 15; (1993) 112 ALR 627 at [4]. ↩

45. Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (Magic
    Menu) (1997) 72 FCR 261; Clyne and Bolitho No 4; Bolitho v
    Banksia Securities (Receivers and Managers Appointed) (in lie) No

    1. [2021] VSC (Bolitho No 18)
    ↩

46. Magic Menu at 268. ↩

47. Fostif at footnote 58 per Fostif Majority citing A Digest of
    the Criminal Law (Crimes and Punishments), (1877) at 86. ↩

48. Truth About Motorways Pty Limited v Macquarie Infrastructure
    Investment Management Limited [2000] HCA 11 at [9, 13, 20] per
    Gleeson CJ & McHugh J [26, 30] per Gaudron J [71, 73] per Gummow
    J; Phelps v Western Mining Corporation Ltd (1978) 20 ALR 183 at
    [189]; Epic at [23 - 24]; Hamilton at [40]. See also
    discussion at ConSub at [158 - 176]. ↩

49. Fostif at footnote 58 per Fostif Majority and Magic Menu at

    ↩

50. The Applicant would have preferred to avoid the unseemly
    comparison of the relevant professional experience of all the
    experienced legal practitioners appearing before the Court in these
    proceedings, but the Respondents unjustified attacks on the
    Applicant's professional experience and conduct cannot go
    unanswered. ↩

51. See the Applicant's 2009 Curriculum Vitae at Annex F to the 27
    August 2020 affidavit of Andrew Hamilton ("2009 CV") and class
    action experience discussed below. ↩

52. Meta submissions at [82 -84]; Google submissions at [67 (c)
    and (d)] ↩

53. See ALRC 134 at [3.42] citing Vince Morabito, [']{dir="rtl"}The
    First Twenty-Five Years of Class Actions in Australia: An Empirical
    Study of Australia[']{dir="rtl"}s Class Action Regimes, Fifth
    Report[']{dir="rtl"} (July 2017). ↩

54. See Petrovski, Bill; Li, Katrina; Morabito, Vince; Nichol, Matt
    --- "Public Interest Costs Orders in Federal Class Actions: Time
    for a New Approach" [2022] MelbULawRw 7; (2022) 45(2) Melbourne
    University Law Review 651 (Public Interest Cost Orders) at
    Part V. ↩

55. See footnote 4 of the Applicant[']{dir="rtl"}s submissions filed
    on 11 December 2020; List of authorities filed on 10 December 2020
    and Complete List of Authorities filed on 1 March 2021. ↩

56. Shurat HaDin, Israel Law Center v Lynch [2014] FCA 226;
    Shurat HaDin No. 2; Shurat HaDin, Israel Law Center v Lynch (No
    3) [2014] FCA 749; Shurat HaDin, Israel Law Center v Lynch (No
    4) [2014] FCA 1216. ↩

57. Shurat HaDin No. 2 has been cited in 20 cases and two law
    journal articles. See
    [https://www.austlii.edu.au/cgi-bin/LawCite?cit=[2014]%20FCA%20413]{.underline} ↩

58. Public Interest Cost Orders ↩

59. LK has been cited in 155 cases and four law journal articles.
    See
    [https://www.austlii.edu.au/cgi-bin/LawCite?cit=[2009]%20HCA%209]{.underline} ↩

60. ACN has been cited in 15 cases. See
    [https://www.austlii.edu.au/cgi-bin/LawCite?cit=[2005]%20FCAFC%20221]{.underline} ↩

61. https://tenthfloor.org/barrister/matthew-darke-sc/;
    https://www.banco.net.au/barristers/robert-yezerski;
    https://www.corrs.com.au/people/mark-wilks;
    https://www.herbertsmithfreehills.com/our-people/leon-chung ↩

62. See CCA s45AD (2) (b). ↩

63. See CCA s 45(1)(c). Only a single member of a cartel or
    participant in concerted conduct group needs to be a constitutional
    corporation for these provisions to effectively apply to all
    participants. ↩

64. See MAW - 2 at page 78. ↩

65. See Transcript at MAW - 2 at page 163 lines 26-27 ↩

66. See Meta position paper at the first case management hearing. ↩

67. At page 1 of Exhibit APSH - 1 to 21 November 2022 Affidavit of
    Andrew Hamilton. ↩

68. LEGAL PROFESSION UNIFORM CONDUCT (BARRISTERS) RULES 2015 - REG
    29 ("Barrister Reg 29") ↩

69. Grouped Proceedings in the Federal Court [1988] ALRC 46
    ("ALRC 46") ↩

70. Wilkinson at [13]. ↩

71. Meta Submissions at [71] citing Farah. ↩

72. In potential breach of Barrister Reg 29. ↩

73. Magic Menu per Lockhart, Cooper and Kiefel JJ at 268-269. ↩

74. Fostif at [63 -95] and particularly [63] & [93] per
    Fostif Majority. ↩

75. Bolitho No 4 at [50 - 51]. ↩

76. at 203. ↩

77. See s 33ZDA of Supreme Court Act 1986 (Vic). ↩

78. ALRC 138 Recommendation 138 at page 11. ↩

79. Bolitho No 4 at [50] ↩

80. Bolitho No 4 at [32] ↩

81. id. at [55]. ↩

82. Bolitho No 18 at [88] per Dixon J. ↩

83. Meta submissions at [57]. ↩

84. s 6 of the LPUL provides that "legal services means work done,
    or business transacted, in the ordinary course of legal practice;" s
    10 (1) of LPUL provides "An entity must not engage in legal practice
    in this jurisdiction, unless it is a qualified entity." ↩

85. As outlined in detail throughout the above submissions. ↩

86. The Law Reform Commission of Western Australia recommended their
    abolition in "Maintenance and Champerty in Western Australia,
    Project 110: Final Report", February 2020 at Recommendation 1. ↩

87. See Clairs Keeley at [57 - 79] and [124], [126], [130]
    and [132]. ↩