Federal Court of Australia

Bain v International Capital Markets Pty Ltd (No 4) [2025] FCA 1060

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00pm on 5 September 2025, the parties are to submit proposed orders in relation to the opt out notice.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    By interlocutory application filed on 13 June 2025, the applicants sought orders approving the form and content of an opt out notice and related orders for the distribution of that notice.

2    The parties agreed that the Court should make orders for an opt out notice to be given to potential group members regarding their entitlement to opt out. The disagreement between the parties related to the extent of the information that should be included in the Potential Group Member List, the ‘personalisation’ of the opt out notice and whether the Potential Group Member List should be provided to the applicants.

3    The background to the proceeding is set out in Bain v International Capital Markets Pty Ltd (No 3) [2025] FCA 599 at [14]–[42] (O’Bryan J). In effect, the claims in the proceeding are brought on behalf of persons (other than institutional investors) who entered into or acquired an interest in one or more Contracts for Difference (CFDs) issued by the first respondent, ICM, and suffered loss or damage as a result of the alleged contraventions of law or breaches of duty.

4    In support of the application, the applicants relied on an affidavit of Mathew Chuk of Echo Law, solicitors for the applicants, affirmed on 13 June 2025.

5    For the reasons that follow, I am not persuaded that the Potential Group Member List and opt out notice should include the level of detail proposed by the applicants or that the Potential Group Member List should be provided to the applicants. The orders in relation to the opt out notice will be in substantially the form sought by the respondents.

Legal principles

6    The relevant legal principles may be shortly stated.

7    Orders for opt out are dealt with in ss 33J, 33X and 33Y of the Federal Court of Australia Act 1976 (Cth).

8    Section 33J(1) relevantly provides that the Court must fix a date before which a group member may opt out of a representative proceeding.

9    Section 33X concerns notices to be given to group members. Section 33X(1)(a) provides that notice must be given to group members about the commencement of the proceeding and the right of group members to opt out of the proceeding before a specified date, being the date fixed under s 33J(1).

10    Section 33Y, which concerns notices under s 33X, provides that the form and content of the notice must be as approved by the Court, and that the Court must, by order, specify who is to give the notice and the way in which the notice is to be given.

11    The principal purpose of an opt out notice is to ensure that group members are accurately informed of their right to opt out of the proceeding before the opt out date fixed by the Court: J Wisbey & Associates Pty Ltd v UBS AG (No 2) [2024] FCA 147 at [45] (Beach J). An opt out notice should provide group members with sufficient information about the proceeding to make an informed decision as to whether or not to opt out of the proceeding: Uren v RMBL Investments Ltd [2019] FCA 1163 at [13]–[14] (Murphy J); Baker v Woolworths Group Limited (Opt-Out Notice) [2021] FCA 223 at [3] (Perram J).

The parties’ submissions

12    As already mentioned, the parties agreed that the Court should make orders for notices to be given regarding group members’ entitlement to opt out. Further, the parties agreed that the opt out notices should be distributed by email by a third-party mailing house and displayed on the website of the applicants’ solicitors until the opt out deadline.

13    The disagreement between the parties concerned three interrelated issues, being the extent of the information that should be included in the Potential Group Member List, the ‘personalisation’ of the opt out notice and whether the Potential Group Member List should be provided to the applicants.

14    In relation to the first two issues, the applicants submitted that the Potential Group Member List should include the potential group member’s full name, email address, account number(s), opening and closing date of their trading account(s), the base currency of their trading account(s), opening and closing balances and total deposits and withdrawals on their account(s). The applicants further submitted that the opt out notice should be personalised to include the same details.

15    The applicants submitted that it is necessary that the opt out notice and Potential Group Member List include the personalised information suggested by the applicants to enable potential group members to engage meaningfully with the notice and so that they are properly informed of and understand their rights. The applicants submitted that the personalised information is available to the respondents and is information which the respondents will be required to produce in any event, on discovery or at a later stage of the proceeding. For those reasons, it was submitted, the respondents’ objections as to the burden of the exercise and concerns about privacy and confidentiality “fall away”.

16    The applicants submitted that a unique feature of the characteristics of the potential class, in Mr Chuk’s opinion, is that a high proportion of group members are likely to be non-residents who are likely to be unfamiliar with participation in class action proceedings in Australia and will be highly suspicious of the email distributing the opt out notice and apprehend that it is a scam. The applicants submitted that the personalisation of the opt out notice will increase the prospects of the notice being perceived as a legitimate communication and reduce the risk that potential group members will incorrectly perceive the opt out notice as a scam or some form of phishing.

17    Finally, the applicants submitted that the Potential Group Member List should be provided to the applicants to allow the applicants’ solicitors to engage with potential group members and “advise” them whether or not they are group members. The applicants submitted that this question will depend, at least on one level, on whether a person meets the definition of “group member”, which is defined to include, relevantly, that a person has suffered loss or damage as a result of their entry into or acquisition of an interest in one or more CFDs issued by ICM.

18    The respondents submitted that the Potential Group Member List should only include the client’s full name, email address and client ID, which is sufficient information for the purpose of an opt out notice and for the applicants’ solicitors, who are already equipped to answer questions regarding the proceeding, to engage with potential group members. The respondents submitted that the personalised details suggested by the applicants are private and confidential and the Potential Group Member List should not be provided to the applicants given there was no evidence regarding the security measures in place to safeguard the information.

Consideration

19    The Court may order that an opt out notice be given “at any stage”: s 33X(5). However, opt out notices tend to be given in the earlier stages of group proceedings. The opt out notice serves the purpose of informing potential group members about the commencement of the group proceeding and of their right to opt out before the date fixed by the Court. The notice, through its contents and mode of distribution, should ensure that group members are accurately informed of their right to opt out of the proceeding.

20    The applicants submitted that there are no authorities against them in relation to the personalisation of the opt out notice, either to the effect that personalised opt out notices should not be ordered or that opt out notices should always be generic. The applicants relied on several authorities where notices to group members contained personalised information. The applicants accepted that those notices concerned different contexts, including combined opt out and settlement notices, where the orders were made by consent or consumer-based class actions where group members might not have been aware that they had purchased the relevant product, see Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 2) [2017] FCA 1231 at [22] and Reilly v Australia and New Zealand Banking Group Limited (No 3) [2020] FCA 1609 at [6] (O’Bryan J).

21    The respondents submitted that the usual course is for an opt out notice to include generic information about the existence and nature of the group proceeding, without provision of the list of group members to the applicants, see for example J Wisbey & Associates Pty Ltd v UBS AG (No 2) [2024] FCA 147 (Beach J); Stack & Ors v AMP Financial Planning Pty Ltd & Ors (VID489/2020, orders of Beach J made on 19 December 2024); Impiombato v NHP Group Ltd (VID649/2018, orders of Murphy J made on 13 March 2024). However, both parties accept that this is not determinative and that the Court can tailor an opt out notice or the mode of distribution of the notice to meet the circumstances of the case, see for example Kemp v Westpac Banking Corporation (No 2) [2020] FCA 1392 at [84] (O’Bryan J).

22    The present application concerns the Court’s approval of an opt out notice and the mode of distribution of such notice. The opt out notice is to inform members about the commencement of the proceeding and the right to opt out. The Court must ensure that potential group members can make an informed decision about their right to opt out. The Court is invited in the present application to look beyond and consider what might happen or be required at a later stage of the proceeding. I am not persuaded that it is necessary or appropriate to do so in the circumstances of the present application for the following reasons.

23    The respondents submitted, and I accept, that the information which the applicants seek to include in the Potential Group Member List and to personalise the opt out notice is information which clients of ICM would regard as private, confidential and sensitive information. I also accept the respondents’ submission that potential group members would be concerned to see such information in an opt out notice in circumstances where they may not be aware of the existence of a group proceeding, let alone for that information to be sent to the applicants’ solicitors.

24    In my assessment, the contents of the opt out notice and Potential Group Member List proposed by the respondents are sufficient to achieve the principal purpose of ensuring group members are accurately informed of their right to opt out of the proceeding and enabling potential group members to make an informed decision about whether or not to opt out. I am satisfied that the opt out notice and Potential Group Member List proposed by the respondents should be sufficient for the applicants’ solicitors, who are familiar with the proceeding, to meaningfully engage with group members in relation to their rights, including because potential group members can provide assistance in relation to their individual position.

25    I am not persuaded that personalising the notice in the way proposed by the applicants will reduce the potential for the notice (which is to be sent as an attachment to an email) to be perceived as a scam. The risk that potential group members will ignore the unilateral provision of documents via email, including because it might be a scam, is a risk that exists in every class action. To mitigate that risk, the parties were directed to confer in relation to the contents of the covering email and an appropriate subject heading.

26    The respondents relied on an affidavit of Mr Elan Sasson, solicitor for ICM, in which Mr Sasson stated that ICM owes privacy obligations to potential class members domestically, under the Privacy Act 1988 (Cth), and internationally, for example under the General Data Protection Regulation in the European Union and the United Kingdom. ICM also has internal policy obligations in respect of its retail clients, which can be found in ICM’s Product Disclosure Statements that were effect during the relevant period. The applicants did not challenge that evidence.

27    The applicants failed to provide any information about the security measures that are in place, or would be put in place, to ensure the security and confidentiality of the Potential Group Member List. Although the applicants’ solicitors deal with confidential information on a daily basis, there was no information before the Court as to the persons at Echo Law who would have access to the Potential Group Member List and the measures that are in place to ensure that it will be kept secure and confidential.

28    The respondents submitted that the collation of the personalised information sought by the applicants would be complicated and labour intensive, relying on an affidavit of Andrew Corkhill, a solicitor for ICM, affirmed on 22 August 2025. The applicants objected to Mr Corkhill’s affidavit, which was filed late and, it was submitted, contained unsubstantiated hearsay assertions that could not be tested. Ultimately, the affidavit was allowed subject to the question of weight. In light of my reasons above, it is unnecessary to deal with the weight, if any, to be attributed to the matters in Mr Corkhill’s affidavit.

29    For those reasons, I am not persuaded that the orders in relation to the content of the opt out notice or Potential Group Member List should contain the details proposed by the applicants or that the Potential Group Member List should be provided to the applicants. The orders in relation to the opt out notice will be in substantially the form sought by the respondents. The parties are required to submit proposed orders to give effect to these reasons.

Associate:

Dated:    2 September 2025