FEDERAL COURT OF AUSTRALIA

Bain v International Capital Markets Pty Ltd (No 2) [2024] FCA 847

ORDERS

THE COURT NOTES THAT:

A.    On 4 July 2024, a concurrent hearing of the Federal Court of Australia and the Supreme Court of Victoria was conducted to hear and determine:

(a)    interlocutory applications brought by Nathan Vingrys in two proceedings brought in this Court, being Nathaniel Bain v International Capital Markets Pty Ltd (ACN 123 289 109) and Anor (VID1088/2023) (Bain Proceeding) and Christopher Wyer v International Capital Markets Pty Ltd (ACN 123 289 109) and Anor (VID88/2024) (Wyer Proceeding), seeking orders that those proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and/or s 1337H(2) of the Corporations Act 2001 (Cth), or in the alternative that those proceedings be permanently stayed; and

(b)    interlocutory applications brought by each of Nathaniel James Bain and Christopher Wyer in a proceeding in the Supreme Court of Victoria, being Nathan Vingrys v International Capital Markets Pty Ltd (ACN 123 289 109) and Anor (S ECI 2024 01169) (Vingrys Proceeding), seeking the permanent stay of that proceeding or alternatively that the whole of the Vingrys Proceeding be transferred to the Federal Court of Australia pursuant to s 5(1)(b) of the Jurisdiction of the Courts (Cross-vesting) Act 1987 (Vic).

B.    The following orders are made in each of the Bain Proceeding and the Wyer Proceeding and are conditional upon the due execution of the following agreements by the following persons within 14 days of the date of these orders:

(a)    the Conditional Costs Agreement and Costs Disclosure Statement annexed to the Affidavit of Mathew Glen Chuk dated 17 June 2024 (Conditional Costs Agreement) to be entered into between Echo Law Pty Ltd (ACN661 368 752) (Echo Law) and each of Mr Bain and Mr Wyer;

(b)    the Agency Agreement annexed to the Affidavit of Mathew Glen Chuk dated 17 June 2024 (Agency Agreement) to be entered into between Echo Law and Piper Alderman (ABN 42 843 327 183) (Piper Alderman);

(c)    the Litigation Management and Funding Agreement annexed to the Affidavit of Mathew Glen Chuk dated 17 June 2024 (Litigation Management and Funding Agreement) to be entered into between CASL Funder Pty Limited as trustee for CASL Portfolio Fund 1 Trust (the Funder) and each of Mr Bain and Mr Wyer; and

(d)    the Standard Lawyer Terms (being schedule 3 to the Litigation Management and Funding Agreement) (Standard Lawyer Terms) to be entered into between the Funder, Echo Law and Piper Alderman .

THE COURT ORDERS THAT:

Application to intervene and stay the proceeding

1.    Nathan Vingrys be granted leave to intervene in the Bain Proceeding and the Wyer Proceeding for the purpose of the hearing and determination of his interlocutory applications dated 31 May 2024.

2.    The interlocutory applications of Nathan Vingrys dated 31 May 2024, seeking orders that the Bain Proceeding and the Wyer Proceeding be transferred to the Supreme Court of Victoria pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and/or s 1337H(2) of the Corporations Act 2001 (Cth), or in the alternative that those proceedings be permanently stayed, be dismissed.

3.    Nathan Vingrys bear his own costs of the interlocutory applications dated 31 May 2024 in the Bain Proceeding and the Wyer Proceeding and there be no other costs order against Mr Vingrys in those proceedings.

Consolidation

4.    Pursuant to r 30.11 of the Federal Court Rules 2011 (Cth) (the Rules) and s 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), the Bain Proceeding be consolidated with the Wyer Proceeding and the consolidated proceeding be known as Nathaniel Bain and Anor v International Capital Markets Pty Ltd (ACN 123 289 109) and Anor and be identified as VID1088/2023 (Consolidated Proceeding).

5.    The Applicant in each of the Bain Proceeding and the Wyer Proceeding are to be the Applicants in the Consolidated Proceeding.

6.    Pursuant to r 1.32 of the Rules and s 33ZF of the Act, Echo Law be granted leave to be named as solicitors on the record for the Applicants in the Consolidated Proceeding on the following bases:

(a)    Piper Alderman will act as Echo Law’s agent (together, the Lawyers) for the prosecution of claims the subject of the Consolidated Proceeding as provided for pursuant to the Agency Agreement;

(b)    the Lawyers must conduct the Consolidated Proceeding in accordance with:

(i)    the Conditional Costs Agreement;

(ii)    the Agency Agreement;

(iii)    the Litigation Management and Funding Agreement; and

(iv)    the Standard Lawyer Terms;

(c)    all correspondence sent to the Respondents or the Court on behalf of the Applicants and group members in the Consolidated Proceeding will be sent by Echo Law;

(d)    a single counsel team will be engaged to represent the Applicants and the group members in the Consolidated Proceeding;

(e)    the Applicants will jointly:

(i)    make any interlocutory applications that are necessary in the Consolidated Proceeding save for any application in respect of non-common issues;

(ii)    respond to any interlocutory applications filed by the Respondents in the Consolidated Proceeding; and

(iii)    retain, brief and instruct expert witnesses in the Consolidated Proceeding.

7.    Costs incurred to date in the Wyer Proceeding are to be costs in the Consolidated Proceeding.

8.    Costs incurred to date in the Bain Proceeding are to be costs in the Consolidated Proceeding.

9.    In the event that the Applicants in the Consolidated Proceeding are required to provide security for costs, the Funder will provide a form of security for costs that shall be acceptable to the Respondents, or as otherwise ordered by the Court.

10.    In the event that an adverse costs order is made against the Applicants in the Consolidated Proceeding, the Funder will meet any such order, unless otherwise ordered by the Court.

11.    Pursuant to s 33ZF and s 54A of the Act, an independent costs referee (Costs Referee) be appointed for the purpose of:

(a)    conducting inquiries every six months (commencing from the date of the making of these orders) as to the question of whether there is unnecessary or excessive work (including any duplication of work) being performed by the Lawyers in the Consolidated Proceeding, having regard to:

(i)    the skills and experience of the Lawyers;

(ii)    the objective of ensuring that the total legal costs are reasonable and proportionate; and

(iii)    the objective of minimising, to the greatest extent possible, the legal costs incurred through overlapping or duplicated work;

(b)    providing confidential written reports (of no more than 8 pages) to the Court (Costs Report) and to the Lawyers every six months (commencing after the date of the making of these orders) stating the Costs Referee’s opinion on the question set out in paragraph 11(a) above.

12.    Within 14 days of the date of these orders, the Applicants are to identify a suitable candidate to carry out the role of Costs Referee, provide the candidate’s curriculum vitae to the Court and seek orders from the Court for that candidate’s appointment.

13.    The Lawyers must provide such information, access to personnel and access to documents as the Costs Referee requires.

14.    The reasonable fees of the Costs Referee shall be borne equally by the Applicants in the Consolidated Proceeding and shall not be recoverable against the Respondents in the Consolidated Proceeding.

15.    The costs of any work performed in the Consolidated Proceeding on and after the date of these orders that has been identified by the Costs Referee and/or the Court as costs relating to work that has been performed by reason of there being two firms conducting the Consolidated Proceeding, and where such work would not have needed to be performed if there was only one firm conducting the Consolidated Proceeding, are not to be recoverable against the Respondents in the Consolidated Proceeding.

Pleadings

16.    The Applicants in the Consolidated Proceeding file and serve a consolidated statement of claim by 23 August 2024.

Costs

17.    The costs of the parties in respect of the concurrent hearing on 4 July 2024 and the interlocutory applications heard at the concurrent hearing (including the interlocutory applications filed in proceeding S ECI 2024 01169 in the Supreme Court of Victoria) be taken to be costs in the cause in the Consolidated Proceeding.

Further case management

18.    The Consolidated Proceeding be listed for further case management at 9.30 am on 30 August 2024.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

A.    INTRODUCTION

1    Three representative proceedings have been commenced against International Capital Markets Pty Ltd (ICM) and the (alleged) owner and controller of that company, Andrew Budzinski.

2    Two of the proceedings were commenced in this Court, being:

(a)    a proceeding brought by Nathaniel Bain, represented by Echo Law, in proceeding VID1088/2023 (Bain proceeding), which was commenced on 20 December 2023; and

(b)    a proceeding brought by Christopher Wyer, represented by Piper Alderman, in proceeding VID88/2024 (Wyer proceeding), which was commenced on 6 February 2024.

3    The third proceeding was commenced in the Supreme Court of Victoria, being a proceeding brought by Nathan Vingrys, represented by Banton Group, in proceeding S ECI 2024 01169 (Vingrys proceeding), which was commenced on 14 March 2024.

4    Each of the proceedings is an “open class” representative proceeding, and each proceeding raises similar allegations against the respondents. As such, the proceedings can be described as “competing class actions”, as that phrase is used in the Federal Court’s Class Actions Practice Note.

5    As the High Court confirmed in Wigmans v AMP Ltd (2021) 270 CLR 632 (Wigmans HC) at [106] (Gageler, Gordon and Edelman JJ), multiplicity of proceedings is not to be encouraged and competing representative proceedings run by different firms of solicitors, with different funders, may in principle be inimical to the administration of justice. The disbenefits include the duplication of costs for all parties and the Court in conducting multiple proceedings and the burden imposed on the respondent in having to respond to each of the proceedings. Multiplicity may be addressed in a number of ways, including by: consolidating the relevant proceedings; de-classing one or more of the proceedings; holding a joint trial of all proceedings with each left constituted as open class proceedings; staying one or more of the proceedings; or closing the classes in one or more of the proceedings but leaving one of the proceedings as an open class proceeding, with a joint trial of all.

6    By early March 2024, and prior to the commencement of the Vingrys proceeding, an agreement was reached between Messrs Bain and Wyer, in their capacity as representative applicants in respect of the Bain and Wyer proceedings, to apply to the Court to consolidate those proceedings (consolidation application).

7    On 31 May 2024, Mr Vingrys filed interlocutory applications in each of the Bain and Wyer proceedings seeking orders that those proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and/or s 1337H(2) of the Corporations Act 2001 (Cth) (Corporations Act), or in the alternative that those proceedings be permanently stayed (FC stay applications).

8    On 31 May 2024, each of Mr Bain and Mr Wyer filed interlocutory applications in the Vingrys proceeding seeking the permanent stay of that proceeding or alternatively that the proceeding be transferred to this Court pursuant to s 5(1)(b) of the Jurisdiction of the Courts (Cross-vesting) Act 1987 (Vic) (SC stay application).

9    Multiplicity issues frequently arise in proceedings issued within a single court. In some cases, multiplicity issues have arisen in proceedings issued in this Court and in the Supreme Court of a State or Territory, but the parties have agreed to the transfer of one of the proceedings to the other court to enable the resolution of the multiplicity issue in a single court (see for example Edwards v Hyundai Motor Company Australia Pty Ltd [2023] FCA 1134 and Jowene Pty Limited v Downer EDI Limited [2023] FCA 924). In the present matter, the multiplicity issue arises in proceedings issued in this Court and in the Supreme Court of Victoria, both exercising federal jurisdiction in respect of the subject matter of the proceedings. Each of the applicants has given reasons for wishing to conduct their proceeding in the court of their choice, and none of the applicants have consented to the transfer of their proceeding to the other court.

10    A protocol was agreed between the Federal Court of Australia and the Supreme Court of Victoria on 5 June 2019 addressing communication and cooperation between the courts in class action proceedings (Protocol). The Protocol states:

This Protocol addresses measures by which representative or class action proceedings involving common parties and the same or similar issues that are commenced at or about the same time in the Supreme Court of Victoria and the Federal Court of Australia can be cooperatively managed with a view to facilitating access to justice and the just, quick and cheap resolution of the real issues in dispute.

A similar protocol operates between the Supreme Court of New South Wales and the Federal Court of Australia dated 1 November 2018.

By this protocol, each court intends to facilitate the cooperative and efficient management of similar or substantially similar class actions on foot in each of the Supreme and Federal Courts at the same time.

11    The Protocol is a reflection of the necessary comity that is required between the Supreme Courts of the States and Territories and the Federal Court of Australia in the concurrent exercise of federal jurisdiction: see Wileypark Pty Ltd v AMP Ltd (2018) 265 FCR 1 (Wileypark) at [11] per Allsop CJ. Under the Protocol, the courts aim to promote the efficient and timely coordination and administration of competing class action proceedings in the most convenient and appropriate jurisdiction having regard to: the issues raised in the respective proceedings; the interests of the parties and group members in the respective proceedings; the minimisation of costs and inconvenience to the parties; the management of the competing class action proceedings in ways that are proportionate to the size and nature of the respective classes, the complexity of the issues, the nature of the proceedings, and the number of jurisdictions involved. The Protocol contemplates the conduct of joint case management hearings, including for the purpose of ascertaining the suitability of the matters for joint or concurrent hearing of a “selection” or carriage hearing to resolve a multiplicity issue across the courts.

12    In accordance with the objectives stated in the Protocol, and with the agreement of all parties, the three interlocutory applications in this matter were heard in a concurrent sitting of this Court and the Supreme Court of Victoria (in which Justice Delany presided). The procedural background to, and the manner of conducting, the concurrent sitting is outlined below. These reasons, and accompanying orders, concern the determination by this Court of the consolidation application and the FC stay applications, each being applications filed in this Court. These reasons are being delivered, and orders made, in a further concurrent sitting of this Court and the Supreme Court in which Justice Delany is concurrently delivering reasons and making orders in respect of the SC stay application.

13    For the reasons set out below, I have determined that the FC stay applications brought by Mr Vingrys should be dismissed and the Bain and Wyer proceedings should be consolidated largely in accordance with the orders proposed on the consolidation application.

B.    OVERVIEW OF THE PROCEEDINGS

14    The pleadings filed in each proceeding are lengthy. It is unnecessary to set out the allegations made in the proceedings in detail and it is sufficient to summarise the allegations in general terms. Not all of the allegations summarised below are made in each proceeding. The differences between the pleadings will be discussed later in these reasons.

15    It is alleged in each proceeding that ICM carried on a business in Australia of issuing highly leveraged “contracts for difference” (CFDs) to investors and provided online and mobile trading platforms through which those CFDs could be acquired, and ICM did so in circumstances where it knew, amongst other things, that investors trading CFDs with ICM experienced high loss rates. It is alleged that Mr Budzinski was the founder of ICM, was a director of ICM at all times, was the Managing Director from 2009 to 2015, was the Chief Executive Officer from 2015 to 2023 and at all relevant times was a director and the sole shareholder of the ultimate holding company of ICM, Bud Corporation.

16    The CFDs offered by ICM allowed an investor to take a financial position based on the predicted future value of an underlying reference asset such as an equity, a foreign currency, an index, a commodity, a bond or a cryptocurrency, where the value of the position was intended to fluctuate with the movement in the price of the reference asset. An investor could open a CFD position by either buying or selling the CFD and could close the CFD position by selling the CFD (in the case of a buy order) or buying the CFD (in the case of a sell order). Upon closing the position, the investor’s profit or loss was calculated by reference to the difference between the opening price and the closing price of the CFD, less fees and charges.

17    Each proceeding has been brought on behalf of persons (other than institutional or professional investors) who entered into or acquired an interest in one or more CFDs issued by ICM and suffered loss or damage as a result of the alleged contraventions of law or breaches of duty.

18    The claims made against ICM can be divided into three categories and relate to three separate time periods.

Primary claims

19    The first time period is from 20 December 2017 (6 years prior to the commencement of the Bain proceeding) until 28 March 2021 (primary claim period). In respect of that period, it is alleged that ICM operated a system, or engaged in a pattern of behaviour, which had elements that included:

(a)    offering CFDs to investors on reference assets that experience volatility;

(b)    setting the buy and sell price for its CFDs in a way that was not transparent to investors;

(c)    selling highly leveraged CFDs to investors that were complex, highly risky and unsuitable for those investors;

(d)    providing a website and operating a trading platform that facilitated poor decision-making and encouraged continuous trading, notwithstanding significant or repeated losses;

(e)    failing to adequately assess applicants’ suitability for trading, and continued trading, in highly leveraged CFDs;

(f)    charging significant and non-transparent fees (including spreads) and costs;

(g)    allowing investors to fund all trading using a credit card, which meant there was a significantly higher probability of their trading leading to indebtedness and financial difficulty;

(h)    using methods to encourage high-volume and continuous trading; and

(i)    making various misrepresentations about the nature and risks of CFDs offered by ICM, including that they were an appropriate or suitable investment for investors and a reasonable and attractive alternative to ordinary investment strategies or products for investors aiming to generate an investment return, and failing to disclose the extent of the risks of those products.

20    It is alleged that ICM knew or ought to have known of the above matters, as the Australian Securities and Investments Commission (ASIC) had for many years published reports in respect of the risks to investors of trading in CFDs, which reports were known to ICM at all relevant times.

21    In respect of the primary claim period, it is alleged that, in connection with offering and issuing CFDs, ICM:

(a)    contravened the prohibitions against false, misleading or deceptive conduct in ss 1041E and 1041H of the Corporations Act and ss 12DA and 12DF of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act);

(b)    contravened the prohibitions against unconscionable conduct in s 12CB of the ASIC Act and s 991A of the Corporations Act;

(c)    breached its duty of care to investor clients to warn them of the material risks inherent in the highly leveraged CFDs issued by ICM; and

(d)     made negligent misstatements on which investors relied,

in each case causing investors to suffer loss.

22    It is also alleged that ICM gave conflicted remuneration, within the meaning of s 963A of the Corporations Act, to certain third parties (partners) who entered into marketing partnerships with ICM, pursuant to which the partners would recommend to their clients or others to invest in CFDs with ICM. It is alleged that by its arrangements with such partners, ICM contravened ss 963E, 963F and 963K of the Corporations Act. It is further alleged that, as a result of the contraventions, investors who received and acted on the recommendations suffered loss.

23    It is alleged that Mr Budzinski is liable as an accessory to the above breaches of laws and duties by ICM.

PIO (product intervention order) claims

24    The second time period is from not later than 29 March 2021 until 6 February 2024 (inclusive) (PIO claim period). The reason for the selection of the date of 29 March 2021 is not clear from the pleadings. In any event, the claims in respect of the PIO claim period relate to conduct allegedly engaged in by ICM in connection with the issue of Product Intervention Order 2020/986 by ASIC on or about 22 October 2020 (the PIO). The PIO had been preceded by Consultation Paper CP 322 released by ASIC on or about 22 August 2019 proposing the issue of a Product Intervention Order restricting the supply of CFDs to retail clients. The PIO that was issued had the following effects in respect of retail clients:

(a)    limiting the leverage that could be offered on CFDs;

(b)    prohibiting the offer of inducements to open a CFD account or acquire CFDs;

(c)    implementing standard margin close-out arrangements; and

(d)    introducing “negative balance protection” by limiting a platform operator’s recourse to money held in the client’s account.

25    It is alleged that the restrictions imposed by the PIO had the effect of restricting the leverage that ICM could offer to its retail clients from the maximum of 500:1 (for certain assets) down to a maximum of 30:1 (for certain assets).

26    It is alleged that, with an awareness of the forthcoming PIO and in order to avoid the restrictions that would be imposed by the PIO, from on or around July 2020 (or alternatively October 2020), ICM recommended that existing retail clients apply for a CFD trading account which offered higher leverage than a standard account and, where a client was approved, re-categorized the client as a wholesale investor. It is alleged that, in doing so, ICM took no or no adequate steps to assess the client’s suitability for the higher leverage and classification as a wholesale investor. It is also alleged that ICM made false or misleading statements to clients in connection with that process.

27    In respect of the PIO claim period, it is alleged that, in connection with offering and issuing CFDs, ICM:

(a)    contravened the prohibitions against false, misleading or deceptive conduct in ss 1041E and 1041H of the Corporations Act and ss 12DA and 12DF of the ASIC Act; and

(b)    contravened the prohibitions against unconscionable conduct in s 12CB of the ASIC Act and s 991A of the Corporations Act.

TMD (target market determination) claims

28    The third period is from at least 5 October 2021 until 6 February 2024 (TMD claim period).

29    It is alleged that, from at least 5 October 2021, ICM was obliged to publish a “Target Market Determination” (TMD) pursuant to s 994B of the Corporations Act, and ICM complied with that obligation. It is further alleged that ICM contravened s 994E of the Corporations Act because it failed to take reasonable steps that would result in retail product distribution conduct in relation to CFDs that was consistent with its TMD. It is alleged that Mr Budzinski is liable as an accessory to those breaches of law by ICM.

C.    PROCEDURAL BACKGROUND TO THE PRESENT APPLICATIONS

30    On 9 February 2024, shortly after the filing of the Wyer proceeding, the Court conducted a joint case management hearing of the Bain and Wyer proceedings. Orders were made on that day requiring the applicants in both proceedings to confer and seek to agree upon any terms for cooperation in the Bain and Wyer proceedings including, if appropriate, consolidation of the proceedings. The orders provided that, if no agreement upon terms for cooperation was reached, the Court would determine whether and in what manner the Bain and/or Wyer proceedings would be permitted to proceed (which is referred to for convenience as the “multiplicity issue”). A timetable for the filing of evidence and submissions in that regard was made. Immediately prior to the hearing, the Court received a communication from the law firm Banton Group that they anticipated receiving instructions to file a further competing class action. The applicants in the Bain and Wyer proceedings informed the Court that they would provide a copy of the 9 February 2024 orders to Banton Group and invite them to participate in the contemplated conferral.

31    A second case management hearing was held on 7 March 2024. At that hearing, the Court was informed that an agreement had been reached between the applicants in each of the Bain and Wyer proceedings to resolve the multiplicity issue by consolidating the proceedings. Timetabling orders were made for the filing of evidence and submissions in support of the consolidation application and the application was listed for hearing on 22 March 2024.

32    On 13 March 2024, the applicants in the Bain and Wyer proceedings filed submissions and evidence in support of the consolidation application.

33    On 14 March 2024, Mr Vingrys filed a competing class action in the Supreme Court of Victoria.

34    A third case management hearing was held on 22 March 2024. Mr Vingrys appeared at that hearing with leave of the Court. At that hearing, the Court determined that, by reason of the commencement of the Vingrys proceeding, it would not be appropriate to hear and determine the consolidation application at that time and that a further case management hearing would be listed to address the multiplicity issue arising from the Bain, Wyer and Vingrys proceedings (as well as the consolidation application).

35    In accordance with the procedure contemplated by the Protocol (described earlier), the parties proposed orders by consent in each of the proceedings to facilitate a concurrent hearing of the multiplicity issue. Timetabling orders were made by consent in each proceeding on 4 June 2024. The timetabling orders contained a list of issues that were to be addressed by the proponents of the competing class actions and, to the extent relevant, the respondents. The issues were stated as follows:

(1)    Carriage

(a)    The position adopted by the applicants in respect of carriage, including any proposal to:

(i)    stay one or more proceedings;

(ii)    consolidate one or more proceedings (and if so, the proposal for legal representation of the consolidated proceeding); or

(iii)    leave open more than one proceeding.

(2)    Practitioners

(a)    The experience of the practitioners representing the applicants in this proceeding.

(b)    The resources made available by the firm of solicitors, and their accessibility to clients.

(3)    Nature and scope of the causes of action advanced (and relevant case theories)

(a)    Extent of overlap between the proceedings.

(b)    Material differences and unique features of the proceeding (i.e. identification of areas where the proceeding does not overlap with the competing proceedings).

(4)    Group Membership

(a)    Size and composition of the group.

(5)    Funding and legal costs

(a)    The proposed funding arrangements, including funding terms and conditions and percentages (including any general costs order arrangements that are intended to be sought).

(b)    Cost estimates and comparative costs modelling.

(c)    The sufficiency of the resources of the entity who will fund the proceeding, to fund it in accordance with the proposed funding model and estimated costs.

(d)    Net hypothetical return to group members.

(6)    Proposals for security

(a)    Proposal for security for costs, including who is to provide security for costs (i.e. a litigation funder), the proposed form of security and relevant material particulars of any expected after the event insurance policy.

(b)    The litigation funder or firm of solicitors’ resources to meet any adverse costs order.

(7)    The state of preparation of the proceedings

(a)    Conduct of the representative applicants in this proceeding to date.

(b)    The degree of expedition with which the applicants have approached the proceedings.

(c)    Order of filing.

(8)    Forum

(a)    The appropriate Court in which to advance group member claims.

(9)    Any factor that the applicants expect might be material to the resolution of the Multiplicity Issue that is not covered by points 1 – 9 above

(10)    Relief sought

36    Relevantly, the timetable provided for the following steps:

(a)    by 7 June 2024, each applicant was required to file and serve a statement of position which set out in summary form that party’s position and the substance of that party’s expected evidence in respect of each of the matters in the list of issues;

(b)    by 12 June 2024, each applicant was permitted to submit a revised statement of position, with the orders stipulating that that would be the only opportunity to modify the statement of position;

(c)    by 17 June 2024, each applicant was required to file and serve any evidence that addressed each issue in the list of issues;

(d)    by 19 June 2024, each applicant was to file and serve submissions;

(e)    by 21 June 2024, the respondents were required to file and serve any evidence and submissions in respect of the multiplicity issue, with such materials to be limited to matters directly affecting the respondents’ interests;

(f)    by 24 June 2024, each applicant was required to file and serve any submissions and evidence in reply.

37    At the commencement of the concurrent hearing, I gave leave for Mr Vingrys to intervene in the Bain and Wyer proceedings to pursue the FC stay applications by which Mr Vingrys principally sought a stay of the Bain and Wyer proceedings. Justice Delany gave leave for Messrs Bain and Wyer to intervene in the Vingrys proceeding for the same purpose. The parties were also informed that:

(a)    although the hearing was being conducted concurrently, each Court would necessarily determine the applications that were made in their respective courts;

(b)    the Courts intended and expected that they would deliver their respective judgments also in a concurrent sitting; and

(c)    I had conferred with Justice Delany about the procedural aspects of the concurrent hearing prior to the hearing and, given the commonality of issues that were raised for determination, Justice Delany and I proposed to confer following the hearing and before delivering judgment, albeit that each of us would come to our own conclusion with respect to the applications that are raised before us.

38    Each party confirmed at the hearing that they had no objection to the parallel case management orders that have been made in each proceeding, the concurrent hearing of the issues raised by the interlocutory applications, or any subsequent conferral between Justice Delany and myself before giving judgment on the applications. On the last aspect, I consider that such conferral is legally permissible, having regard to the observations made by the Full Federal Court in Westpac Banking Corporation v Lenthall (2019) 265 FCR 21 at [2] and the NSW Court of Appeal in Brewster v BMW Australia Ltd [2019] NSWCA 35; 366 ALR 171 at [14], which decisions followed a concurrent sitting of those courts. Conferral between the courts has obvious practical benefits in the present circumstances, albeit that each court is required to make its own determination on the applications that are filed in that court.

39    At the hearing, Mr Vingrys did not press his application to have the Bain and Wyer proceedings transferred to the Supreme Court (and nor did Messrs Bain and Wyer press their applications before the Supreme Court to have the Vingrys proceeding transferred to this Court). This reflected a recognition by each applicant that a transfer of the proceedings between the courts was not an end in itself and was only a means by which multiplicity could be addressed by a single judge in one of the courts. As multiplicity was able to be addressed in an efficient and practical manner through a concurrent sitting of the courts to hear the stay applications brought in each court, the transfer applications served no useful purpose. Furthermore, and as discussed below, each applicant considered that there were juridical and procedural advantages for group members in their choice of forum. Those matters were better addressed as part of the resolution of the multiplicity issue rather than as a preliminary transfer issue divorced from the multiplicity issue.

D.    EVIDENCE ADDUCED ON THE APPLICATIONS

40    In advance of the concurrent hearing held on 4 July 2024, and in accordance with the consent orders of 4 June 2024, the parties filed a court book containing the evidence and submissions to be relied upon at the hearing. The evidence was read at the hearing without objection and taken to be evidence in each of the three proceedings. The evidence comprised the following:

(a)    on behalf of Mr Bain, two affidavits of Mathew Glen Chuk (of Echo Law) affirmed 17 and 24 June 2024 and an affidavit of John Francis Walker (of CASL Funder Pty Ltd as trustee for CASL Portfolio Fund 1 Trust (CASL)) affirmed 17 June 2024;

(b)    on behalf of Mr Wyer, two affidavits of Katherine Louise Sambrook (of Piper Alderman) affirmed 17 and 24 June 2024 and also the above-mentioned affidavit of Mr Walker; and

(c)    on behalf of Mr Vingrys, two affidavits of Amanda Kim Banton affirmed 17 and 24 June 2024 and an affidavit of James Searby affirmed 25 June 2024.

41    At the hearing, ICM sought leave to read an affidavit of Elan Sassoon (of Quinn Emanuel Urquhart & Sullivan, solicitors for ICM) affirmed 3 July 2024. The affidavit exhibited correspondence between Quinn Emanuel and the solicitors for the respective applicants on the issue of security for costs. There was no objection to the late service of the affidavit and, for that reason, the Court granted leave for the affidavit to be read and relied upon.

42    Also at the hearing, Mr Vingrys sought leave to read a further affidavit of Ms Banton affirmed 3 July 2024. Messrs Bain and Wyer objected on two bases: first, that the evidence proposed to be given by the affidavit would have the effect of further revising the statement of position of Mr Vingrys that had been filed, contrary to the orders made on 4 June 2024; and second, that Messrs Bain and Wyer did not have a fair opportunity to respond to the evidence. The objection was upheld for reasons given at the hearing. In summary, I concluded that to permit Mr Vingrys to rely on the affidavit would be unfair to the other parties and contrary to the overarching objective in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Under the timetabling orders that had been made on 4 June 2024, each party had been given a reasonable opportunity to respond to the issues in dispute prior to the hearing. The orders provided for an initial statement of position, a revised statement of position, evidence in chief and evidence in reply, all to be completed by 24 June 2024, which allowed a further week for the preparation for the oral hearing. The affidavit of Ms Banton of 3 July 2024 was received only the evening before the hearing. The affidavit sought to adduce evidence which reflected a change in position on the applications before the Court, which was contrary to the express requirements of the timetabling orders. The affidavit traversed matters that had been in issue between the parties from the outset and the evidence could have been adduced earlier. The other applicants would not have had a fair opportunity to respond to the affidavit without an adjournment, which no party sought.

43    Each of Messrs Bain and Wyer sought orders pursuant to ss 37AF(1) and 37AG(1)(a) of the FCA Act restricting the publication or other disclosure of parts of the evidence adduced in support of the FC stay applications and consolidation application. Disclosure was permitted to each of Messrs Bain, Wyer and Vingrys, their legal representatives and to CASL. In general terms, Messrs Bain and Wyer sought to restrict disclosure to the respondents of those parts of the evidence that revealed their legal strategy in the proceedings or would otherwise confer an unfair advantage on the respondents in the conduct of the proceedings. The parts of the evidence for which non-publication orders were sought concerned estimates and modelling of legal costs and potential outcomes in the proceedings, assessments of the material strengths and risks of the claims made in the proceedings and discussion of litigation strategy. I was satisfied that non-publication orders as sought by Messrs Bain and Wyer were necessary to prevent prejudice to the proper administration of justice and made such orders in the Bain proceeding and the Wyer proceeding on 11 July 2024.

E.    LEGAL FRAMEWORK AND RELEVANT PRINCIPLES

44    The principles governing the resolution of multiplicity of proceedings are well settled. As stated earlier, the Court has power to address multiplicity in a number of ways. Relevantly for present purposes, the Court’s power to consolidate proceedings (which is regulated by r 30.11 of the Federal Court Rules 2011 (Cth) (FC Rules)) is expressly preserved in the case of representative proceedings by s 33ZG(c)(iv) of the FCA Act. The Court’s power to stay a representative proceeding in the interests of justice is conferred by s 23 of the FCA Act which implicitly confers power to make orders of the kinds available at common law and in equity: see generally Perera v GetSwift Ltd (2018) 263 FCR 92 (Perera) at [121]-[134]; cf Wigmans HC at [72], [92], [94] and [99]-[104] (in respect of the powers of the Supreme Court of New South Wales).

45    At the concurrent hearing, the parties’ evidence and submissions focussed on a binary choice for the Court: whether to allow the consolidated Bain and Wyer proceedings to have carriage of the claims on behalf of group members (and for the Supreme Court to stay the Vingrys proceeding), or to allow the Vingrys proceeding to have carriage of the claims on behalf of group members (and for this Court to stay the Bain and Wyer proceedings). The Court is not, of course, limited to that choice. In particular, the Court might consider that the consolidation of the Bain and Wyer proceedings is not in the best interests of group members and that one or other of those proceedings ought to have carriage of the claims. There are other possible solutions.

46    It is significant, though, that neither Mr Bain nor Mr Wyer applied, in the alternative, to be granted sole carriage of the claims within their own proceeding. They applied for consolidation of their proceedings under r 30.11 of the FC Rules and advanced submissions in respect of the multiplicity issue on the basis of the proposed consolidated proceeding. It is clear that a condition for consolidation in r 30.11 is satisfied in that the Bain and Wyer proceedings involve common questions of law and fact. No party opposed the consolidation of those proceedings. In light of the evidence adduced and submissions advanced in this case, I consider it appropriate to resolve the multiplicity issue within the framework of the respective stay applications and on the basis of the proposed consolidation of the Bain and Wyer proceedings. In other words, the choice for the carriage of the claims is between the proposed consolidated Bain and Wyer proceeding and the Vingrys proceeding. While it would be theoretically open to the Court to form the view that the consolidation of the Bain and Wyer proceedings is not in the best interests of group members and that one or the other of those proceedings ought to have sole carriage of the claims, such a conclusion is largely foreclosed by the fact that none of the parties have adduced evidence or advanced submissions directed to the comparative advantages or disadvantages of each of those proceedings. Further, as discussed below, I am persuaded that the consolidation of the two proceedings is likely to generate benefits for group members in the litigation of their claims.

47    In Wigmans HC, the High Court identified four matters relevant to the exercise of power to grant a stay of competing representative proceedings. Those matters are (at [105] – [109]):

(a)    First, that multiplicity of proceedings is not to be encouraged and that competing representative proceedings run by different firms of solicitors, with different funders, may in principle be inimical to the administration of justice.

(b)    Second, while a first-in-time rule or presumption has never been favoured as a means of resolving which of the competing proceedings should proceed, the order of filing has been and remains a relevant consideration, although less relevant where the competing proceedings have been commenced within a short time of each other.

(c)    Third, the relevant point in time to determine the question is not limited to the time of filing the proceeding and may, and often will, extend to facts and matters arising after filing. The actions (or inaction) of group members and, more generally, the degree of expedition with which the respective parties have approached the proceeding, including the degree to which they have been timely in their interlocutory activities, are likely to be relevant.

(d)    Fourth, the factors that might be relevant cannot be exhaustively listed and will vary from case to case. In matters involving competing open class representative proceedings with several firms of solicitors and different funding models, it is necessary for the court to determine, by reference to all relevant considerations, which proceeding going ahead would be in the best interests of group members.

48    As noted above, the orders made on 4 June 2024 in this Court and the Supreme Court identified a list of issues to be addressed by the parties in evidence and submissions in determining the multiplicity issue (under the framework of the competing stay applications). The evidence and submissions on those issues, or factors, are now considered.

F.    CONSIDERATION OF RELEVANT FACTORS

The parties’ positions regarding carriage

49    As already stated, Messrs Bain and Wyer have applied in this Court for an order that their proceedings be consolidated, and have applied in the Supreme Court for an order that the Vingrys proceeding be stayed. Mr Vingrys opposes that application in the Supreme Court and has applied in this Court for an order that the Bain and Wyer proceedings be stayed. Messrs Bain and Wyer oppose that application in this Court. It is convenient to begin by outlining the key elements of the applicants’ competing proposals for carriage of the claims by their respective proceedings.

The proposed consolidated proceeding

50    It is proposed by Messrs Bain and Wyer that their proceedings be consolidated into a single proceeding on the following bases:

(a)    Mr Bain and Mr Wyer will become the representative applicants;

(b)    Echo Law, solicitors for Mr Bain, will be the solicitors on the record for the applicants in the consolidated proceeding;

(c)    Mr Wyer’s retainer with his current solicitors, Piper Alderman, will end and Piper Alderman will be engaged by Echo Law as their agent;

(d)    there will be a single counsel team to represent Mr Bain, Mr Wyer and the group members of the consolidated proceeding comprising Chris Withers SC, Rob Clark and Monica Aguinaldo, with Thomas Bagley to assist in preparing the consolidated statement of claim and other discrete issues;

(e)    CASL, the current funder of the Bain proceeding, will fund the consolidated proceeding on the basis that an “all-inclusive” common fund order will be sought at the conclusion of the proceeding, with legal costs and disbursements only claimable out of the common fund;

(f)    CASL will meet any adverse costs order in the consolidated proceeding and provide security for costs; and

(g)    a costs referee will be appointed to undertake enquiries to determine whether unnecessary, duplicative or excessive work has been undertaken, and the costs of such work would not be recoverable from the respondents.

51    The proposed contractual terms on which the consolidated proceeding would be conducted are in evidence as annexures to Mr Chuk’s affidavit affirmed 17 June 2024. The contractual terms comprise the following:

(a)    a Conditional Costs Agreement and Costs Disclosure Statement to be entered into between Echo Law and each of Mr Bain and Mr Wyer (Conditional Costs Agreement);

(b)    an Agency Agreement to be entered into between Echo Law and Piper Alderman (Agency Agreement);

(c)    a Litigation Management and Funding Agreement to be entered into between CASL and each of Mr Bain and Mr Wyer (Litigation Management and Funding Agreement); and

(d)    Standard Lawyer Terms (being schedule 3 to the Litigation Management and Funding Agreement) to be entered into between CASL, Echo Law and Piper Alderman (Standard Lawyer Terms).

52    Messrs Bain and Wyer have also provided the Court with proposed orders to be made with respect to the consolidation of the proceeding. Those orders reflect the above proposals, including orders governing the appointment of an independent costs referee for the purpose of conducting inquiries every six months as to the question of whether there is unnecessary or excessive work (including any duplication of work) being performed by the lawyers in the consolidated proceeding, and providing confidential written reports to the Court and to the lawyers every six months stating the costs referee’s opinion on that matter.

53    The key aspects of the proposed contractual terms on which the consolidated proceeding would be conducted are considered further below. However, it is fundamental to the determination of the consolidation application and the FC stay applications that the Court is assured that, if consolidation is ordered and the consolidated proceeding is granted carriage, the proceeding is then conducted in accordance with the proposed contractual terms. For that reason, orders for consolidation will necessarily be conditional on the relevant contracts being executed and will require the applicants, the solicitors and CASL as funder to conduct the proceeding on those contractual terms.

54    As noted above, the Court has the power to order consolidation and it is commonly ordered to address multiplicity: Wigmans v AMP Ltd (2019) 103 NSWLR 543 at [54] (Bell P). Where there is agreement as to consolidation of competing representative proceedings, such orders are generally made, subject to the requirement that the future conduct of the consolidated proceeding is likely to be consistent with the interests of group members and the overarching purpose, and not prejudicial to respondents: Fuller v Allianz (2021) 65 VR 78 at [18]; Klemweb Nominees Pty Ltd v BHP Group Limited [2019] FCAFC 107; 369 ALR 583 at [155]-[160] (Lee J) and [34] (Middleton and Beach JJ). Orders have, on occasion, been made for joint representation of joint applicants: Stallard v Treasury Wine Estates Limited Ltd [2020] VSC 679 at [20]. Such orders are not sought in this case. Only one firm, Echo Law, will be the solicitors on the record.

The Vingrys proceeding

55    The Vingrys proceeding has been brought by Mr Vingrys, who is represented by Banton Group. Banton Group is presently acting for Mr Vingrys on a contingent basis and is bearing its own professional costs pursuant to the terms of its retainer with Mr Vingrys. Banton Group is proposing to fund the litigation from its own resources, and proposes to seek a general costs order pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic) (SC Act) that the legal costs payable to Banton Group be calculated as a percentage of any award of damages or settlement recovered. The terms of the retainer and the proposed funding arrangements for the Vingrys proceeding are considered further below.

Practitioners

56    A relevant consideration in resolving a carriage dispute is the relative experience of the practitioners representing the applicants and the legal resources that are available for the conduct of the proceedings.

57    The evidence shows that each of Echo Law, Piper Alderman and Banton Group are experienced in the conduct of large class actions. In my judgment, however, the legal team that is proposed to represent the consolidated proceeding has more direct experience that is relevant to the conduct of the present case, in comparison to the Vingrys proceeding.

58    First, the evidence shows that the legal team at Echo Law has considerable experience in relation to the conduct of large consumer law class actions.

59    Second, Piper Alderman, who will be engaged by Echo Law as agents to perform part of the legal work in the proceeding, bring important expertise arising from their role in conducting a current class action in this Court against IG Markets Limited (Proceeding VID301/2023). Ms Sambrook of Piper Alderman deposed in her 17 June 2024 affidavit that the class action against IG Markets involves similar claims to those made against ICM in the Wyer proceeding, concerning misconduct in the promotion and supply of CFDs, and that Piper Alderman developed substantial specialised knowledge about CFDs, CFD issuers and their regulation in Australia through the extensive pre-commencement investigation of the claims against IG Markets. This knowledge was applied by Piper Alderman in its investigation of claims against ICM and Mr Budzinski.

60    Third, the intended counsel team of the consolidated proceedings, comprising Chris Withers SC, Rob Clark and Monica Aguinaldo, prepared and settled the pleadings for the Bain proceeding. Mr Withers SC also settled the pleadings for two other class actions filed in this Court against issuers of CFDs which raise similar issues, being actions against CMC Markets Asia Pacific Pty Ltd (Proceeding NSD410/2022) and Plus500AU Pty Ltd (Proceeding NSD1405/2023). Thomas Bagley, who will assist in preparing the consolidated statement of claim and with other discrete issues, prepared the pleadings for the Wyer proceeding.

61    In contrast, neither Banton Group nor counsel retained in the Vingrys proceeding have specific experience in proceedings against CFD issuers. The evidence indicates that counsel retained in the Vingrys proceeding have had little involvement in the proceeding to date. In relation to Banton Group, Ms Banton deposed that she has been investigating potential claims against CFD issuers since at least late 2020, following ASIC’s announcement of the PIO on 23 October 2020, and has held discussions with litigation funders. However, the evidence suggests that nothing concrete has come of that. Banton Group began investigating Mr Vingrys’s claim against ICM in mid-2023. Ms Banton deposed that, in November and December 2023, Banton Group worked to prepare a draft pleading to be settled by counsel. The pleading was prepared “in accordance with” the pleading in the IG Markets proceeding, which suggests that Banton Group followed the approach taken in that case. As far as the evidence reveals, that pleading was never settled by counsel. Following the commencement of the Bain and Wyer proceedings, Ms Banton deposed that she obtained copies of the pleadings that had been filed in the Bain and Wyer proceedings. She formed the view that the Bain pleading was more comprehensive than either the (then) draft Vingrys pleading or the Wyer pleading and concluded that “it was in the best interests of the group members in the Vingrys proceeding to harmonise, where appropriate, its pleading” with the Bain pleading. The Banton Group then commenced the Vingrys proceeding with a pleading which is an amalgam of the Bain pleading and the Wyer pleading. The Vingrys pleading was signed by Ms Banton, but not by counsel. It is apparent that Ms Banton has used the expression “harmonise” as a euphemism for “copy”. An examination of the Bain, Wyer and Vingrys pleadings reveals that the Vingrys pleading has been prepared by copying sections from the Bain and Wyer pleadings and the Vingrys pleading does not contain any original thought. The concern in that regard is not any breach of copyright or other intellectual property; it is that the pleading filed in the Vingrys proceeding does not demonstrate any significant legal expertise and analysis in the formulation of the claims by Banton Group. Messrs Bain and Wyer submitted, and I accept, that simply copying a pleading from another proceeding, without first-hand knowledge of the investigations, research and forensic decisions underlying the preparation of such pleading, will invariably leave the copying practitioner in a less strong position to run the case, in comparison to the practitioners who prepared the original pleading.

62    Overall, the legal practitioners who will represent the consolidated proceeding have been able to demonstrate considerably more expertise with respect to consumer claims against issuers of CFDs and considerably more involvement in the preparation of the pleaded case against the respondents in comparison to the legal practitioners who will represent Mr Vingrys.

Nature and scope of causes of action advanced (and relevant case theories)

63    The nature and scope of the causes of action advanced have been described earlier in these reasons. Currently, the Bain proceeding advances the primary claims described above, excluding the conflicted remuneration claim. The Wyer proceeding advances all of the primary claims, the PIO claims and the TMD claims. In the consolidated proceeding, Mr Bain and Mr Wyer will seek leave to prepare updated pleadings which amalgamate the relevant claims in both the Bain and Wyer proceedings. Significantly, the primary claims will date back to 20 December 2017, being 6 years prior to the commencement of the Bain proceeding (reflecting the operation of applicable limitation periods in the Corporations Act and the ASIC Act and, in respect of the tortious claims, the limitation statutes of the States and Territories).

64    As stated above, the pleading filed in the Vingrys proceeding is an amalgam of the Bain and Wyer pleadings, save that it does not include the conflicted remuneration claim. No explanation was given for the omission of the conflicted remuneration claim. In the absence of any explanation, I infer that the omission was an oversight on the part of the Banton Group. Further, Messrs Bain and Wyer identified a number of errors that had been introduced into the Vingrys pleading that were not present in the Bain and Wyer pleading. The errors can be easily corrected and therefore do not bear materially upon the assessment of the nature and scope of the causes of action. The errors indicate, though, that the level of care and attention that has been given by the Banton Group to the preparation of the Vingrys proceeding to date is less than would be expected, and certainly less than has been shown by the legal representatives for Messrs Bain and Wyer.

65    There is one significant difference between the pleading filed in the Vingrys proceeding and the pleading filed in the Bain proceeding (and the pleading that will be filed in the proposed consolidated proceeding): the primary claims in the Vingrys proceeding date back to 14 March 2018, being 6 years prior to the commencement of the Vingrys proceeding, whereas the primary claims in the Bain proceeding date back to 20 December 2017. Messrs Bain and Wyer submitted, and I accept, that the value of group member claims in the period 20 December 2017 to 14 March 2018 is likely to be substantial. The submission was supported by an estimate made by Mr Chuck of the value of the primary claims in that period which I accept as a reasonable estimate for these purposes. It follows that the present temporal scope of the Bain proceeding, which will also be reflected in the consolidated proceeding, provides a material benefit to group members in comparison to the Vingrys proceeding.

66    In her affidavit affirmed 24 June 2024, Ms Banton deposed that she intends to apply to amend the pleading in the Vingrys proceeding to seek recovery in respect of the primary claims back to 20 December 2017 on the basis that that the filing of the Bain proceeding and the Wyer proceeding suspended the limitation period for the respective group members in those proceedings. Mr Vingrys submitted that any concern in that regard was capable of resolution by way of application under s 33K of the SC Act. Section 33K provides (relevantly) as follows:

33K    Causes of action accruing after commencement

(1)    The Court may, at any stage of a group proceeding on application made by the plaintiff, give leave to amend the writ commencing the group proceeding so as to alter the description of the group.

(2)    The description of the group may be altered so as to include a person—

(a)    whose cause of action accrued after the commencement of the group proceeding but before such date as the Court fixes when giving leave; and

(b)     who would have been included in the group or, with the consent of the person would have been included in the group, if the cause of action had accrued before the commencement of the proceeding.

(3)     The date mentioned in subsection (2)(a) may be the date on which leave is given or another date before or after that date.

67    It is not obvious that s 33K operates in the manner for which Mr Vingrys contends. Messrs Bain and Wyer conceded, however, that legal mechanisms may be available to Mr Vingrys to enable him to extend his claim back to 20 December 2017. The legal mechanisms were not explored at the hearing and I therefore do not express any opinion upon them. By reason of the concession made by Messrs Bain and Wyer, I do not place material weight on this factor, beyond noting that the consolidated proceeding has the advantage of certainty with respect to including claims back to 20 December 2017.

68    Ms Banton further deposed that she intends to apply to amend the pleading in the Vingrys proceeding to add an additional cause of action in respect of which confidentiality is claimed. I place no weight on that prospect as the evidence adduced does not persuade me that there is a sound basis for the allegation. The description of the possible cause of action in Ms Banton’s affidavit was stated at a high level of generality and Ms Banton acknowledged that the inclusion of the additional cause of action was “subject to further analysis and consideration”.

Group membership

69    Following consolidation of the Bain and Wyer pleadings in the manner referred to above, the consolidated proceeding will represent persons (other than institutional or professional investors) who entered into or acquired an interest in one or more CFDs issued by ICM in the period from 20 December 2017 to the date of the consolidated statement of claim, and who suffered loss or damage as a result of the alleged contraventions of law or breaches of duty. As described earlier in these reasons, the alleged contraventions of law and breaches of duty relate to three time periods. It follows that the claims made in the consolidated proceeding will relate to (at least) three sub-categories of group members, being persons who entered into or acquired an interest in one or more CFDs issued by ICM during the time period covered by the relevant claim, specifically 20 December 2017 to 28 March 2021 for the primary claims, 29 March 2021 (at the latest) until the date of the consolidated statement of claim for the PIO claims, and 5 October 2021 until the date of the consolidated statement of claim for the TMD claims.

70    As discussed in the preceding section, the Vingrys pleading, as an amalgam of the Bain and Wyer pleadings, provides for the same group membership save in one respect. As the Vingrys proceeding was not commenced until 14 March 2024, the primary claims are made in respect of group members who acquired CFDs in the period from 14 March 2018, rather than the earlier date of 20 December 2017 in the consolidated proceeding. As discussed above, Messrs Bain and Wyer conceded that it may be possible for Mr Vingrys to amend his pleading to seek recovery in respect of the primary claims back to 20 December 2017. It is not possible to resolve that question on the present applications. Nevertheless, the consolidated proceeding has the advantage of certainty with respect to including claims back to 20 December 2017.

Funding and legal costs

71    This is a significant topic. By the orders made on 4 June 2024, the parties were required to file evidence and submissions addressing the following matters:

(a)    the proposed funding arrangements, including funding terms and conditions and percentages (including any group cost order arrangements that are intended to be sought);

(b)    cost estimates and comparative costs modelling;

(c)    the sufficiency of the resources of the entity who will fund the proceeding to fund it in accordance with the proposed funding model and estimated costs; and

(d)    net hypothetical return to group members.

72    Each will be addressed in turn.

Proposed funding arrangements

73    The legal framework governing the compensation that may be provided to persons funding class actions differs between this Court and the Supreme Court of Victoria.

74    As a result of the decision of the High Court in BMW Australia Ltd v Brewster (2019) 269 CLR 574, this Court does not have power to make a common fund order at the commencement of a representative proceeding. The Full Federal Court has concluded, though, that s 33V(2) of the FCA Act gives the Court the power to make a common fund order at the conclusion of a proceeding: Elliott-Carde v McDonalds Australia Ltd (2023) 301 FCR 1 at [170] (Beach J), [423] (Lee J) and [504] (Colvin J); Galactic Seven Eleven Litigation Holdings LLC v Davaria [2024] FCAFC 54 at [32] (Murphy J), [136] (Lee J) and [142] (Colvin J). A common fund order typically provides for the quantum of a litigation funder’s remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceeding and for that liability to be discharged as a first priority from any moneys so recovered, thereby ensuring that all group members bear a proportionate share of that liability.

75    In contrast, the Supreme Court of Victoria is empowered by s 33ZDA(1) of the SC Act to make a group costs order at any time, including at the commencement of the proceeding. A group costs order is an order that the legal costs payable to the law practice representing the plaintiff and group members be calculated as a percentage of the amount of any award or settlement that may be recovered in the proceeding, being the percentage set out in the order, and that liability for payment of the legal costs must be shared among the plaintiff and all group members. Section 33ZDA(2) provides that, if a group costs order is made, the law practice representing the plaintiff and group members is liable to pay any costs payable to the defendant in the proceeding and must give any security for the costs of the defendant in the proceeding that the Court may order the plaintiff to give. Section 33ZDA(3) empowers the Court to amend a group costs order, including amendment of the percentage ordered, at any time during the course of a proceeding.

76    The Vingrys proceeding is proposed to be funded by Banton Group on a “no win no fee” basis. With respect to fees payable upon a successful outcome, Mr Vingrys proposes to apply to the Supreme Court of Victoria for a group costs order under which Banton Group would be entitled to receive in payment of its legal costs the following percentages of the amount of any award or settlement: 29% in respect of amounts recovered up to $100 million; 20% in respect of amounts recovered between $100 million and $150 million; and 12.5% in respect of amounts recovered over $150 million. If the Supreme Court refuses to make a group costs order, Mr Vingrys proposes to seek an order at the conclusion of the proceeding for an “all-inclusive” common fund order at the same rates and to the same effect. An “all-inclusive” common fund order is an order under which all amounts payable in respect of the costs of the proceeding, including funding and legal costs, are paid from the common fund.

77    The consolidated proceeding will be funded by CASL such that Messrs Bain and Wyer will have no liability for the costs of the proceeding if the proceeding is unsuccessful. Under the proposed Litigation Funding Agreement, upon a successful outcome of the proceeding Messrs Bain and Wyer agree to seek the Court’s approval of an “all-inclusive” common fund order under which CASL would be entitled to receive as funding commission, and in payment of all costs incurred including legal costs and disbursements, the following percentages of the amount of any award or settlement: 30% in respect of amounts recovered up to $100 million; 20% in respect of amounts recovered between $100 million and $150 million; and 15% in respect of amounts recovered over $150 million. The Litigation Funding Agreement stipulates that CASL is not entitled to apply for a funder’s fee in excess of those amounts or separate recovery of the costs of the proceeding.

78    The litigation funding model proposed in the Vingrys proceeding is more beneficial to group members because it proposes to seek a lower percentage of amounts recovered in the proceeding. The differences in the proposed percentages is not immaterial, but the Court must not be unduly captivated by headline percentages. The ultimate financial return to group members will be most affected by the amount of any award or settlement achieved, and that will be affected by the overall conduct of the proceeding, including the skills, expertise and resources able to be devoted to the conduct of the proceeding.

79    Aside from the differences in the proposed percentages, I consider that there is no relevant benefit to group members from the Vingrys proposal to apply for a group costs order compared to the Bain/Wyer proposal to apply for a common fund order. In both cases, group members will have certainty with respect to the maximum amount of litigation funding commission that will become payable from any award of damages or settlement sum. In the Vingrys proceeding, either a group costs order will be made at the outset of the proceeding or, if the Court refuses to make such an order, Mr Vingrys will apply for a common fund order at the end of the proceeding on the same basis. In the consolidated proceeding, Messrs Bain and Wyer and CASL as funder have agreed that no more than the stated percentages of funding commission will be sought. In both jurisdictions, the Court has ultimate control over the amounts payable by way of funding commission.

80    Messrs Bain and Wyer submitted that, pursuant to the conditional costs agreement entered into between Banton Group and Mr Vingrys on 5 October 2023, there were a number of circumstances in which Banton Group could elect to withdraw from, and cease funding, the proceeding, including if a group costs order is refused by the Supreme Court or a group costs order is made at a rate that is unacceptable to Banton Group. Those circumstances were acknowledged by Ms Banton in her affidavit affirmed 17 June 2024. There are no equivalent provisions in the Conditional Costs Agreement to be entered into by Echo Law and each of Mr Bain and Mr Wyer, as the consolidated proceeding is being funded by CASL and a group costs order (or common fund order) cannot be sought at the commencement of a proceeding in the Federal Court. The return to CASL as litigation funder will be determined at the time of any settlement or an award of damages in the proceeding. Messrs Bain and Wyer submitted, and I accept, that as a result of the foregoing there is less certainty about the proposed funding of the Vingrys proceeding in comparison to the proposed consolidated proceeding.

Cost estimates and comparative costs modelling

81    The parties provided the Court with estimates of the expected costs of the proceeding, including solicitor fees, counsel fees, other disbursements and the costs associated with providing security for costs. As all such costs are proposed to be met from the funding commission (under the proposed group costs order or common fund order), the differences in estimated costs does not have a material bearing on the determination of multiplicity. Furthermore, cost estimates in this context suffer from two difficulties. First, experience teaches that such estimates are unreliable. The course of litigation is always unpredictable. Second, a lower cost estimate is not always beneficial to group members. The successful prosecution of a claim, particularly against a well-resourced respondent, may require considerable expenditure of legal resources. Messrs Bain and Wyer submitted, and I accept, that a relevant consideration in the present context is the adequacy of resources available to the legal practitioners to conduct the proceeding and the adequacy of the budget that has been prepared. The cost estimates put forward by the parties are confidential and it is unnecessary to refer to the specific figures. Nevertheless, I accept the submission of Messrs Bain and Wyer that there is reason to believe that the more modest budget proposed by Banton Group may reflect the fact that Banton Group is proposing to fund the proceeding from its own resources. That matter is discussed in the next section.

Sufficiency of resources available to fund the proceedings

82    As stated above, the consolidated proceeding will be funded by CASL. I am satisfied on the basis of the evidence given by Mr Walker that CASL has more than adequate resources to fund the costs of the consolidated proceeding, including any adverse costs order under arrangements discussed below. Mr Walker is the Executive Chairman of CASL Group Pty Limited, the parent company of CASL. Mr Walker deposed that he has funded and managed, through the various litigation funding entities in which he has had an interest or was employed by, over 500 litigated disputes since 1998. Mr Walker deposed that CASL is the trustee of a number of Australian unit trusts including the CASL Portfolio Fund 1 Trust. Mr Walker provided confidential evidence about the source and quantum of funds available to CASL Portfolio Fund 1 Trust to fund the consolidated proceeding, and deposed that, when a financial commitment has been made by CASL to fund a proceeding, CASL ensures that the capital is reserved and is unavailable to be used for another financial commitment.

83    In oral submissions, Mr Vingrys criticised Mr Walker’s evidence because it did not contain documentary verification of the funds available to CASL to fund the litigation. To a large extent, the criticisms were raised by way of response to criticisms that are made by Messrs Bain and Wyer in respect of the quality of the financial evidence adduced by Banton Group to demonstrate that it has the capacity to fund the Vingrys proceeding. The financial circumstances of CASL and Banton Group are not comparable. CASL is a fund the sole purpose of which is to fund litigation. The relevant facts concerning CASL are the quantum of funds available for the litigation and that those funds have been set aside. If there was any real doubt about Mr Walker’s evidence, Mr Vingrys could have called for production of documents that verified his evidence, but he did not do so. Nor did Mr Vingrys raise any issues with respect to the capacity of CASL to fund the proceeding in his written submissions, which would have afforded Messrs Bain and Wyer with the opportunity to respond. I do not consider that there is any reason to doubt Mr Walker’s evidence. In contrast, Banton Group conducts the business of a legal practice and Ms Banton deposed that she proposes to fund the Vingrys proceeding “from the financial resources available to my firm”. In her affidavit, Ms Banton acknowledges that the financial circumstances of Banton Group to carry the professional fees and pay disbursements and security for costs for the duration of the proceeding is a highly relevant factor to the award of carriage. As discussed below, there is reason to question the ability of Banton Group to fund the Vingrys proceedings, having regard to the evidence adduced on these applications.

84    During the conduct of the proceeding, CASL will pay 50% of Echo Law’s professional fees and 75% of Piper Alderman’s professional fees. The balance of the fees will be incurred on a contingent basis. If there is a successful outcome, Echo Law and Piper Alderman will be entitled to charge the contingent fees plus a 25% uplift on those amounts. The evidence given by Mr Chuk and Ms Sambrook satisfies me that those funding arrangements will provide both Echo Law and Piper Alderman with sufficient funding security to enable them to properly resource and conduct the consolidated proceeding.

85    As stated above, Banton Group proposes to fund the Vingrys proceeding out of its own resources on a “no win no fee” basis. It is relevant for the Court to assess whether Banton Group has sufficient resources to fund the proceeding, and whether there is a risk that the conduct of the proceeding would be compromised by reason of financial strain to Banton Group arising from the costs likely to be incurred. The evidence adduced by Banton Group on that issue comprised the two affidavits of Ms Banton and the affidavit of Mr Searby. The evidence was less than satisfactory.

86    In respect of Banton Group’s current financial position, and particularly its current balance sheet, Ms Banton exhibited a single page document titled “Banton Group Management Accounts for the year ended 30 June 2023”. It contained a balance sheet and profit and loss statement as at that date. The document was marked as confidential, but it is unnecessary for present purposes to address the detail. No explanation was given as to why the balance sheet was given without any accompanying notes to explain line items, nor why Banton Group provided the Court with financial information that was a year out of date. It can be accepted that, as at early July 2024, Banton Group is unlikely to have finalised its financial accounts for the financial year ending 30 June 2024. Nevertheless, most businesses maintain monthly management accounts and would be able to produce a balance sheet, on a management account basis, as at the end of the preceding month. Instead of providing the Court with up to date financial information in the form of accounts and accompanying notes or explanations, Ms Banton deposed to the value of Banton Group’s net assets and cash and cash equivalents as at the date of her affidavit (17 June 2024) and Banton Group’s income, net profit after tax and EBIT margin for the period from 30 June 2023. Evidence given in that form does not assist as the Court is unable to understand the nature and size of the assets and liabilities from which the net asset figure is derived.

87    Mr Searby described himself as an independent economic and financial consultant, with an MA from the University of Oxford in Modern History and Economics and an MBA from Imperial College, University of London. He disclosed that he performs consulting work for Banton Group. On this occasion, Mr Searby was engaged by Banton Group on behalf of Mr Vingrys to “prepare a report addressing the financial strength of Maurice Blackburn Pty Ltd, Shine Justice Ltd, and Slater & Gordon Ltd and compare it to Banton Group”.

88    The brief given to Mr Searby was a wholly flawed exercise. As stated above, the question that is relevant to the Court is whether Banton Group has sufficient resources to fund the proceeding, and whether there is a risk that the conduct of the proceeding would be compromised by reason of financial strain arising from the costs likely to be incurred. A comparison of Banton Group’s financial strength with Maurice Blackburn Pty Ltd, Shine Justice Ltd and Slater & Gordon Ltd provides no meaningful assistance.

89    Mr Searby stated that he was provided with Banton Group’s financial statements for FY2023, Maurice Blackburn Pty Ltd’s financial statements for FY2023, Shine Justice Ltd’s financial statements for FY2023 and Slater & Gordon Ltd’s financial statements for FY2023. Mr Searby attached those financial statements to his report. In the case of Banton Group, Mr Searby received the single page document titled “Banton Group Management Accounts for the year ended 30 June 2023” that was exhibited to Ms Banton’s affidavit. In respect of the other firms, Mr Searby received a copy of their audited financial statements. Surprisingly, Mr Searby made no comment about the disparity in the quality of financial information available in respect of Banton Group and the other firms, and gave no qualification to his opinions on that account.

90    Mr Searby stated that, in carrying out his task, he considered three “essential” measures of financial strength, namely:

(a)    profitability (the ability to earn revenues in excess of costs);

(b)    the composition of assets and liabilities, in particular any unusual items; and

(c)    liquidity ratios.

91    While profitability and liquidity ratios are important measures of financial strength, they afford limited information about the capacity of a firm to self-fund a large class action. More significantly, Mr Searby did not compare the respective firms’ absolute profitability but compared their pre-tax profit margins, which provides no useful information about the capacity of a firm to self-fund a large class action.

92    With respect to balance sheet composition, Mr Searby observed that, in contrast to the other firms, Banton Group is funded principally by litigation funders, the effect of which is to reduce Banton Group’s balance sheet size and leverage in comparison to other firms in the industry. That circumstance indicates that conducting a class action on a “no win no fee” basis without the assistance of a litigation funder is a novel undertaking for Banton Group. Otherwise, I place no weight on Mr Searby’s report with respect to balance sheet matters. The report provides no assessment of Banton Group’s ability to fund the Vingrys proceeding from its own balance sheet.

93    In her affidavits, Ms Banton also gives evidence about possible sources of funding to the Banton Group for the Vingrys proceeding, including the prospect of obtaining litigation funding. The evidence is vague and uncertain and I place little weight on it.

94    It is not to be assumed that any firm of solicitors would commit to the funding of a large class action unless they considered that they had the capacity to fulfill that commitment. The evidence adduced by Banton Group, deficient as it is, suggests that Banton Group may be able to fund the Vingrys proceeding from its own balance sheet. However, the state of the evidence suggests to me that Banton Group faces a materially higher risk of financial strain in conducting the Vingrys proceeding in comparison to Echo Law and Piper Alderman who have secured litigation funding for the consolidated proceeding.

Net hypothetical return to group members

95    Given the nature of the funding arrangements that are proposed in the Vingrys proceeding and the proposed consolidated proceeding, the net hypothetical return to group members is simply the product of the funding commission percentages and the amount of any award of damages or settlement sum, which has been considered above.

Overall assessment of the funding proposals

96    Overall, and for the reasons explained above, I consider that the funding proposals favour the proposed consolidated proceeding. While the funding commission proposed to be sought by way of common fund order in the consolidated proceeding is at a higher percentage rate in comparison to the Vingrys proceeding, the differences are not large and the ultimate financial return to group members will be most affected by the amount of any award or settlement achieved, and that will be affected by the overall conduct of the proceeding, including the skills, expertise and resources able to be devoted to the conduct of the proceeding. In that regard, I consider that the litigation funding available to the legal team to conduct the proposed consolidated proceeding provides greater certainty that sufficient resources will be available to conduct the proceeding, in comparison to Banton Group self-funding the Vingrys proceeding.

Proposals for security

97    Although the primary consideration underpinning the resolution of the multiplicity issue is the interests of group members, the Court must also ensure that the respondent is treated fairly: Perera at [195] (Middleton, Murphy and Beach JJ); Wigmans v AMP Ltd [2019] NSWSC 603 (Wigmans SC) at [33], [125] (Ward CJ in Eq). For that reason, security for costs is a relevant consideration in determining which of multiple proceedings should be awarded carriage: Perera v GetSwift Ltd (2018) 263 FCR 1 at [169] (Lee J); Wigmans SC at [121] (Ward CJ in Eq); Lay v Nuix Ltd [2022] VSC 479 at [18] (Nichols J). By the orders made on 4 June 2024, the parties were required to file evidence and submissions addressing the following matters:

(a)    the proposal for security for costs, including who is to provide security for costs, the proposed form of security and relevant material particulars of any expected “after the event” (ATE) insurance policy; and

(b)    the litigation funder or firm of solicitors’ resources to meet any adverse costs order.

98    Messrs Bain and Wyer accept that security for costs must be provided and have offered to provide security for the consolidated proceeding by way of a Deed of Indemnity from the insurer Am Trust Europe Limited. This has become a common means by which security is provided in class actions. The costs of such security will be borne by CASL and will not be sought to be recovered other than from the common fund (if the proceeding is successful).

99    In contrast, Mr Vingrys’s revised statement of position stated that Banton Group’s primary position is that security for costs is not necessary, but if security is ordered, Banton Group will be able to pay each respondent’s security for costs by way of cash, bank guarantee, an ATE insurance policy, or such other form as ordered by the Court. Mr Sassoon’s affidavit exhibited recent correspondence between himself, as solicitor for ICM, and Banton Group concerning the latter’s proposals for security. The correspondence confirms that Banton Group’s current position is to resist the giving of security and that Banton Group has no firm proposal with respect to the giving of security.

100    While there is a clear difference in the position of the parties with respect to the giving of security, which difference favours the consolidated proceeding, I do not place significant weight on this factor. In my view, in a proceeding in which Banton Group will be seeking a contingency payment calculated as a percentage of any award of damages or settlement sum, it is highly likely that it will be required to provide security for costs. Further, in all likelihood it will be required to provide security in the usual form, being cash, bank guarantee or ATE insurance policy. The evidence given by Ms Banton, while vague in many respects, satisfies me that Banton Group will be in a position to provide such security and that the risk of the proceeding being stayed by the failure to give security is negligible. It can be said, though, that Banton Group’s evidence and submissions on this topic displayed a lack of preparation with respect to the conduct of the proceeding, a factor that is considered in the next topic.

The state of preparation of the proceeding

101    Under this heading, the orders of 4 June 2024 required the parties to file evidence and submissions addressing the following matters:

(a)    the conduct of the applicants in the proceedings to date;

(b)    the degree of expedition with which the applicants have approached the proceedings; and

(c)    the order of filing.

102    Mr Chuk deposed that Echo Law began investigating the potential for a class action against ICM in January 2023. Mr Chuk’s affidavit describes in some detail the investigations and deliberations that went into the preparation of the Bain proceeding, including the decision to commence in this Court. The perceived benefits of conducting the proceeding in this Court are considered below. It is unnecessary to describe in detail the work undertaken by Echo Law. It is sufficient to observe that Mr Chuk’s affidavit persuades me that substantial work has been undertaken by Echo Law to date. The end result of that work is that the Bain proceeding was the first to commence on 20 December 2023. Mr Chuk also deposed to the work done by Echo Law to make contact with potential group members since the proceeding was commenced.

103    Ms Sambrook’s evidence indicates that Piper Alderman commenced investigating the claims against the respondents in around May 2023. As discussed earlier, Piper Alderman had the advantage of being involved in the IG Markets proceeding. Ms Sambrook deposed, in brief terms, to the work undertaken by Piper Alderman in investigating and preparing its claims against the respondents, which involved preparing its own pleading settled by counsel and the commencement of the proceeding on 6 February 2024.

104    With respect to the resolution of the multiplicity issue, the evidence shows that Echo Law and Piper Alderman have adopted a cooperative approach and have acted with expedition. Between 13 and 28 February 2024, Echo Law, Piper Alderman and Banton Group, and their respective litigation funders, engaged in multiple conferrals. By 1 March 2024, the Bain and Wyer parties were able to reach an agreed cooperative position, which led to the consolidation application. The consolidation application is supported by necessary contractual arrangements involving the litigation funder.

105    The Vingrys proceeding was the last in time to be filed, nearly three months after the Bain proceeding. The relevance of this factor depends upon the circumstances. As observed by Allsop CJ in Wileypark at [18], there are dangers involved in giving weight to first filing because it “involves an encouragement for hasty preparation and lack of mature reflection” and haste “may also lead to less focused pleading and preliminary analysis which may undermine, not reinforce, the policy objectives of modern dispute resolution and court statutes”. However, that is not this case. To the contrary, the evidence indicates that the Vingrys proceeding is, to a large extent, riding on the coat-tails of the Bain and Wyer proceedings and, by reason of that, suffers from less preparation by the solicitors involved. As set out earlier, Ms Banton deposed that Banton Group began investigating Mr Vingrys’s claim against ICM in mid-2023. It was only in November and December 2023 that Banton Group worked to prepare a draft pleading to be settled by counsel, and that was done by following the approach taken in another proceeding in which Banton Group had no involvement (the IG Markets proceeding). As also noted earlier, as far as the evidence reveals, that pleading was never settled by counsel. Following the commencement of the Bain and Wyer proceedings, Banton Group prepared the Vingrys pleading by copying sections from the Bain and Wyer pleadings.

106    More generally, Banton Group’s evidence on the present applications before the courts reveals a lack of preparation of the proceeding. The evidence adduced with respect to Banton Group’s funding proposal and particularly its sources of funds to conduct the proceeding was unsatisfactory, vague and uncertain in many respects. Similarly, its evidence and submissions on security for costs displayed a lack of preparation.

107    Overall, the evidence persuades me that the proposed consolidated proceeding is better prepared. At this stage, Echo Law and Piper Alderman have undertaken more thorough investigation of the causes of action against the respondents than Banton Group and the solicitors and counsel who will conduct the consolidated proceeding were all involved in the preparation of the case and the pleading. Further, the consolidated proceeding has a firm funding proposal in place with agreed terms, and a clear and firm approach to security for costs. In comparison, Banton Group has done less work in preparing the case and the pleading filed on behalf of Mr Vingrys is copied from the Bain and Wyer pleadings. Counsel retained in the Vingrys proceeding have not been involved in preparing the case. The funding and security arrangements for the Vingrys proceeding are less certain.

Forum

108    Mr Vingrys contends that the Supreme Court offers advantages to group members, while Messrs Bain and Wyer contend that this Court offers advantages to group members. For the most part, I consider that the asserted advantages are not measurable and merely reflect the perspectives and preferences of the parties’ legal advisers. In one respect, though, there may be a material difference in the relief that can be obtained in this Court compared to the Supreme Court.

109    Mr Vingrys contends that there are two advantages to the proceeding being heard in the Supreme Court.

110    The first asserted advantage is the power of the Supreme Court to make a group costs order at the commencement of the proceeding. I do not consider that the existence of that power, in and of itself, constitutes an advantage to group members. In the first place, the exercise of the power is discretionary and it cannot be assumed that such an order will be made in the present case. In the second place, and as explained earlier in these reasons, an equivalent advantage is able to be obtained in this Court. The advantage to group members of a group costs order is that they have certainty of the maximum amount that will become payable from any damages awarded or settlement sum in the proceeding. That same certainty can be achieved in this Court by a representative applicant undertaking to the Court, in some suitable manner, that the applicant will seek at the conclusion of the proceeding an “all-inclusive” common fund order calculated on the same basis as a group costs order. Messrs Bain and Wyer have given that undertaking in respect of the consolidated proceeding.

111    The second asserted advantage is the requirement in s 26 of the Civil Procedure Act 2010 (Vic) requiring a litigant and their legal practitioners to disclose the existence of all documents that are, or have been, in that person’s possession, custody or control of which the person is aware and which the person considers, or ought reasonably consider, are critical to the resolution of the dispute. In my view, this is not a measurable advantage to group members in comparison to proceedings in this Court in circumstances where orders for standard discovery under r 20.14 of the FC Rules are regularly made in this Court which have a similar (if not broader) scope.

112    Messrs Bain and Wyer contend that there are four advantages to the proceeding being heard in this Court.

113    First, Messrs Bain and Wyer submitted that this Court is the preferable forum for actions against CFD issuers because each of the other class actions brought against major issuers of CFDs in Australia (IG Markets, CMC Markets and Plus500) was brought in this Court. Messrs Bain and Wyer submitted that the commonality of each of these proceedings in the same forum is likely to lead to efficiencies in case management of them by this Court. Messrs Bain and Wyer also relied on the fact that this Court is the preferred jurisdiction for ASIC enforcement proceedings brought against CFD issuers. I do not consider that this is a measurable advantage to group members. At present, each of the class actions against CFD issuers is being conducted before a different judge of this Court, reflecting the fact that each proceeding raises distinct factual issues. Whilst the litigants and the Court in each of those proceedings will no doubt observe and learn from the progress of each other proceeding, the same would be expected if the proceeding against ICM were to be conducted in the Supreme Court.

114    The second claimed advantage was sought to be cloaked by confidentiality. I do not consider that it requires suppression. It is an everyday aspect of class actions. Messrs Bain and Wyer submitted that there may be a “greater risk” of the respondents making a successful application for “soft class closure” orders in the Supreme Court of Victoria. This is an order requiring group members who wish to receive a distribution from any settlement of the class action to register their claim. Such orders can take a number of forms. I do not accept the submission. The making of such orders by the Supreme Court and this Court is a discretionary matter having regard to the facts and circumstances of each case. It is not possible to form a view that one court or the other is more likely to exercise the discretion in a particular way.

115    Third, Messrs Bain and Wyer submitted, based on data presented by Mr Chuk, that class actions in this Court have been more speedily resolved or reached trial. I do not accept this submission. The data presented by Mr Chuk purported to compare the progress of all current class actions in the Supreme Court and this Court. Class action proceedings are not sui generis. Each proceeding is distinct and the length of time taken to resolve the proceeding will depend on the claims made in the proceeding. Further, while the Supreme Court and this Court have overlapping jurisdiction, the courts also have exclusive areas of jurisdiction with the result that certain types of proceedings can only be brought in the Supreme Court and vice versa. The data presented by Mr Chuk is at too high a level of generality for any conclusions to be drawn.

116    Fourth, and more significantly, Messrs Bain and Wyer drew attention to the difference between ss 51A and 52 of the FCA Act and s 60 of the SC Act governing the award of interest on damages. Section 51A(1) provides that in any proceedings for the recovery of any money, the Court shall, upon application, unless good cause is shown to the contrary, either:

(a)    order that there be included in the sum for which judgment is given interest at such rate as the Court thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or

(b)    without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.

117    Thus, the standard position in this Court is that interest is awarded from the date when the cause of action accrued.

118    Section 52 provides that a judgment debt under a judgment of the Court carries interest from the date the judgment is entered. Interest is payable at such rate as is fixed by the FC Rules or at such lower rate as the Court determines.

119    The Court has published the Interest on Judgments Practice Note which stipulates the rates that litigants should expect when interest is ordered under s 51A in respect of the period to judgment and under s 52 in respect of the period after judgment.

120    In contrast, s 60 of the SC Act provides that the Supreme Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under s 2 of the Penalty Interest Rates Act 1983 (Vic) as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

121    Thus, the standard position in the Supreme Court of Victoria on debt or damages claims is that interest runs from the date the proceeding commenced. The practice in the Supreme Court is to treat the statutory penalty rate as a “starting point” or “benchmark”: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 30) (2022) 67 VR 1 at [15] (Elliott J).

122    In his affidavit, Mr Chuk gave a hypothetical calculation to show the potential difference in interest that might be awarded in this Court and in the Supreme Court applying those provisions. In undertaking the calculation, Mr Chuk noted that the interest rates applicable to an award of interest in this Court are generally lower than the rate specified in the Penalty Interest Rates Act 1983 (Vic). However, on Mr Chuk’s hypothetical calculation, the longer time period on which interest would ordinarily be calculated in this Court generated a higher value in comparison to an award of interest in the Supreme Court.

123    Hypothetical calculations such as those undertaken by Mr Chuk must be treated with caution. Nevertheless, they serve to illustrate the potential difference in the application of the statutory provisions governing the award of interest on damages. Mr Vingrys submitted, and I accept, that any comparison between the statutory provisions governing interest must also make allowance for the fact that, at common law, the calculation of damages may include interest on sums of money lost because that represents part of the claimant’s foreseeable loss: Hungerfords v Walker (1989) 171 CLR 125 at 142-9 (Mason CJ and Wilson J).

124    Overall, I accept that the provisions of the FCA Act governing the award of interest on damages have the potential to provide a benefit to group members that may not be available to the same extent under the equivalent provisions of the SC Act.

Any other factor not covered above

125    Under this heading, Messrs Bain and Wyer adduced evidence suggesting that Mr Vingrys’s personal circumstances make him an unsuitable lead applicant in the class action. It is unnecessary to describe those circumstances, as I do not consider that it is a factor that carries any material weight. It is usual for an initial trial in a class action to hear the cases of a number of group members who have different personal circumstances to enable the greatest number of common issues to be determined in the initial trial. If it became apparent that Mr Vingrys’s individual claim was unlikely to succeed, he could be replaced as lead applicant.

G.    CONCLUSION AND ORDERS

126    Having regard to the factors considered above, in my view permitting the consolidated proceeding, rather than the Vingrys proceeding, to go ahead would be in the best interests of the group members. The only factor that favours the Vingrys proceeding is the proposed lower percentage rates for the funding commission to be sought under a group costs order or, if necessary, under a common fund order. In my assessment, all other factors favour the consolidated proceeding or are neutral. As stated above, while the funding commission proposed to be sought by way of common fund order in the consolidated proceeding is at higher percentage rates than the Vingrys proceeding, the differences are not large and the ultimate financial return to group members will be most affected by the amount of any award or settlement achieved. The amount of any award of damages or settlement will be affected by the overall conduct of the proceeding, including the skills, expertise and resources able to be devoted to the conduct of the proceeding. In my view, the proposed consolidated proceeding is better prepared than the Vingrys proceeding and, at this stage, Echo Law and Piper Alderman have undertaken more thorough investigation than Banton Group of the causes of action against the respondents. Further, the consolidated proceeding has a firm funding proposal in place with agreed terms, and a clear and firm approach to security for costs. I consider that the proposed litigation funding available to the legal team to conduct the proposed consolidated proceeding provides greater certainty that sufficient resources will be available to conduct the proceeding, in comparison to Banton Group self-funding the Vingrys proceeding.

127    It follows from the foregoing that I would dismiss the FC stay applications brought by Mr Vingrys. The parties agreed at the hearing that, in that event, the appropriate order as to Mr Vingrys’s costs of the FC stay applications is that Mr Vingrys bear his own costs and there be no other costs order against Mr Vingrys in the proceedings.

128    With respect to the consolidation application, I earlier observed that it would be theoretically open to the Court to form the view that the consolidation of the Bain and Wyer proceedings is not in the best interests of group members and that one or other of those proceedings ought to have sole carriage of the claims. However, neither Mr Bain nor Mr Wyer applied, in the alternative, to be granted sole carriage of the claims within their own proceeding and the evidence and submissions of the parties were addressed to the proposed consolidated proceeding. Further, no party opposed the consolidation of those proceedings. Mr Vingrys advanced submissions about the risk that the consolidated proceeding would result in duplication of work between Echo law and Piper Alderman. In my view, that risk is ameliorated by the terms of the proposed Agency Agreement to be entered into between the two firms, as well as the orders to appoint a costs referee to undertake enquiries to determine whether unnecessary, duplicative or excessive work has been undertaken. I also consider that the consolidation of the two proceedings is likely to generate benefits for group members in the litigation of their claims, by virtue of the complementary expertise and experience of Echo Law and Piper Alderman with respect to the issues arising in the proceeding.

129    The consolidation application has been made on the basis that the legal arrangements between the applicants (Messrs Bain and Wyer), the solicitors (Echo Law and Piper Alderman) and the funder (CASL) will be governed by the following agreements: the Conditional Costs Agreement; the Agency Agreement; the Litigation Management and Funding Agreement; and the Standard Lawyer Terms. At the date of the hearing, those agreements were yet to be executed. It is therefore appropriate that the orders effecting consolidation be conditional upon those agreements being entered into within 14 days of the date of the orders. Further, as the multiplicity issue has been resolved in favour of the proposed consolidation proceeding on the basis that the conduct of the consolidation proceeding will be governed by those agreements, it is appropriate that the orders provide that the proceeding will be conducted in accordance with those agreements. It should be noted that, under the Litigation Management and Funding Agreement, it is agreed that an application for a common fund order will not be made for an amount in excess of the funding commission rates referred to earlier in these reasons.

130    I will therefore make an order pursuant to r 30.11 of the FC Rules and s 33ZF of the FCA Act that the Bain proceeding be consolidated with the Wyer proceeding. I will also make orders largely in the form proposed by Messrs Bain and Wyer, which include the following matters:

(a)    the applicant in each of the Bain and Wyer proceeding are to be the applicants in the consolidated proceeding;

(b)    pursuant to r 1.32 of the FC Rules and s 33ZF of the FCA Act, Echo Law be granted leave to be named as solicitors on the record for the applicants in the consolidated proceeding on the following bases:

(i)    Piper Alderman will act as Echo Law’s agent as provided for in the Agency Agreement;

(ii)    Echo Law and Piper Alderman must conduct the consolidated proceeding in accordance with the Conditional Costs Agreement, the Agency Agreement, the Litigation Management and Funding Agreement, and the Standard Lawyer Terms;

(c)    costs incurred to date in the Bain and Wyer proceedings are to be costs in the consolidated proceeding;

(d)    in the event that the applicants in the consolidated proceeding are required to provide security for costs, CASL will provide a form of security for costs that shall be acceptable to the respondents, or as otherwise ordered by the Court;

(e)    in the event that an adverse costs order is made against the applicants in the consolidated proceeding, CASL will meet any such order, unless otherwise ordered by the Court; and

(f)    pursuant to ss 33ZF and 54A of the FCA Act, an independent costs referee will be appointed for the purpose of conducting inquiries every six months as to the question of whether there is unnecessary or excessive work (including any duplication of work) being performed by the lawyers in the consolidated proceeding.

131    It will be necessary for Messrs Bain and Wyer to prepare and file and serve a consolidated statement of claim in the consolidated proceeding. I will order that to be done by 23 August 2024 and that a further case management hearing will be convened for 30 August 2024.

132    Messrs Bain and Wyer and the respondents agreed that the appropriate order as to the costs incurred by them of the concurrent hearing and of the interlocutory applications heard at the concurrent hearing (including the interlocutory applications filed in proceeding S ECI 2024 01169 in the Supreme Court of Victoria) is that those costs be taken to be reserved costs in the consolidated proceeding. I consider that the appropriate order is that those costs be taken to be costs in the cause in the consolidated proceeding. An order to that effect will be made.

Associate:

Dated:    2 August 2024