Counsel Fiona Forsyth KC and Nicholas De Young KC went head to head during a joint hearing before the Federal Court and Victorian Supreme Court to determine which of their class actions against International Capital Markets (IC Markets) should go ahead.

The class actions, all very similar, alleged that IC Markets and founder Andrew Budzinski engaged in misleading, deceptive, and unconscionable conduct in the supply of contracts for difference (CDF) to retail investors between December 2017 and March 2021.

The proceedings are currently split between two courts: two in the Federal Court by applicants James Bain and Christopher Wyer and the other in the Supreme Court with applicant Nathan Vingrys.

The Federal Court proceedings, run by Echo Law and Piper Alderman with support of litigation funder CASL, have asked for consolidation and a stay of the Supreme Court proceedings.

Banton Group runs and has funded the other and requested the same consolidation and a stay of the Federal Court matter.

Forsyth, who represents Bain but also submitted on behalf of Wyer, said their proceedings would be “funded, comprehensive and clearly presented to the court”, which she said has already seen the benefit of the Bain and Wyer applicants working cooperatively.

In contrast, Forsyth said the Vingrys proceedings is full of errors, lacked clarity and their arguments has been “shifting sands”.

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“It just seems a scramble of material,” Forsyth said.

“Everything has been later, [there has been] new material, our morning hours were taken up by their attempt to patch the evidence, and material has been redacted and unredacted.”

Forsyth added that in those circumstances, “it will be our submission that the choice of the courts will be clear”.

Referring to the funding agreement, Forsyth explained that CASL committed to paying 50 per cent of Echo Law’s fees, 75 per cent of Piper Alderman’s fees, and 100 per cent of disbursements.

The remainder of the fees would be incurred on a contingent basis.

Forsyth said the practitioners who would represent the Bain and Wyer proceedings moving forward – excluding herself – “are best placed” because they were responsible for preparing the claim.

She said this is in contrast to the Vingrys party, which “simply copied” the Bain and Wyer statement of claim “and briefed new counsel”.

De Young, for Vingrys, said it is in the best interests of the group members to proceed with their proceedings, “namely [because of the] superior funding position” of a group costs order (GCO) proposal.

He said the Bain and Wyer applicants were “behind on funding proposals”, particularly with “estimated returns to group members”.

“We have no financial statements from CASL, we have no financial statements from Echo Law,” De Young submitted.

As for the cooperation of the two firms, De Young said it is “what the court would expect” and the fact there are multiple firms “is actually a point weighing them down, not thrusting them forward”.

“Their lack of cooperation has driven down the price in the interests of the group,” De Young said of the Vingrys proceedings.

“Banton can run the case more efficiently.”

Michael Borsky KC, representing IC Markets, said the Bain and Wyer proceedings were “clear and unequivocal”.

“They accept that security must be provided, and they accept it is to be provided by a deed of indemnity by an insurer in the usual way.

“The Vingrys position, by contrast, is at least more uncertain,” he said.

Borsky said the Vingrys party has not provided an assessment of its financial position or whether they “can fund the security of the necessary provision of the costs”.

These sections have been “wholly redacted” in submissions.

“That is a clear disadvantage in our perspective, as compared to Bain and Wyer,” Borsky submitted.

Borsky added that the unsuccessful party who does not move on with the proceedings should pay their own costs.

Paul Annabell, counsel for Budzinski, adopted what Borsky submitted about the security of costs consideration.

He added a possibility raised by Banton Group to pay cash or early instalments of security “doesn’t alter our position”.

“It still refers to a possibility, it doesn’t accept that security will be provided, and there is the risk the proceedings will be bogged down by fights over security,” Annabell said.

At the beginning of the day, both counsel addressed the courts on the Vingrys party’s late filing of an affidavit, which included a revision to the percentage rate of the GCO, an amended retainer, and an address of Baton Group’s current financial position.

Forsyth said the affidavit and the attached evidence “amounted to a revision of a position”, which was contrary to orders made in both courts in early June that material be filed by 24 June.

“It puts the court and us in quite a difficult position.

“There was a reason why a timetable was set, and that was to provide fairness and opportunity to respond in a timely and appropriate manner … the Vingrys party [is] seeking to benefit from a last-minute change,” Forsyth said.

De Young said all the affidavits sought to do was “respond to various criticisms that was advanced” by the Bain and Wyer parties.

When Justice Michael O’Bryan of the Federal Court told De Young the affidavit should have been filed before deadline, De Young said the new document will not “materially change or improves our position on carriage” because it is “simply meeting a point that is advanced against us”.

Justice Jim Delany of the Supreme Court delivered short reasons during the hearing, telling the parties he would not grant leave for the affidavit to be filed because it was out of time and it was important all parties “work cooperatively, efficiently, and in a timely manner”.

Justice O’Bryan adopted these same reasons.

Both justices reserved their decisions.

In closing the matter, Justice Delany said he wanted to “express my thanks to Justice O’Bryan and his staff for welcoming us to this court, for use of their facilities, and for also facilitating this joint sitting”.