Bain v International Capital Markets Pty Ltd (No 2)

The case involves three representative proceedings brought against International Capital Markets Pty Ltd (ICM) in relation to alleged breaches of the Corporations Act by ICM. The proceedings were initiated by Nathaniel Bain and Anor (Bain), Robert Wyer (Wyer), and Nathan Vingrys (Vingrys). The Bain and Wyer proceedings were filed in the Federal Court of Australia, while the Vingrys proceeding was filed in the Supreme Court of Victoria. The Bain and Wyer proceedings were subsequently consolidated. The applicants in the Bain and Wyer proceedings applied for a stay or transfer of the Vingrys proceeding to the Federal Court. In response, Vingrys applied for a stay or transfer of the Bain and Wyer proceedings to the Supreme Court. The court had to decide on the appropriate forum for the proceedings, whether to consolidate the proceedings, and the appropriate cost and funding arrangements.

The court found that the Vingrys proceeding should be stayed and dismissed, and the Bain and Wyer proceedings should be consolidated. The court rejected Vingrys's application for transfer to the Supreme Court and the applicants' application for transfer of the Vingrys proceeding to the Federal Court. The court held that the consolidated proceeding was better prepared and had a firm funding proposal, which provided greater certainty of sufficient resources for the proceeding. The court also considered that the consolidation would generate benefits for group members by virtue of the complementary expertise of the legal teams involved. The court ordered the consolidation of the Bain and Wyer proceedings and appointed an independent costs referee to oversee the proceedings.

The court's decision was based on the factors outlined in the Protocol for communication and cooperation between the Supreme Court of Victoria and the Federal Court of Australia in class action proceedings. The court found that the consolidated proceeding was in the best interests of the group members, and the consolidation would facilitate efficient management of the proceedings. The court also considered the proposed funding arrangements and the expertise of the legal teams involved.

The court made several orders, including dismissing Vingrys's applications for stay or transfer of the Bain and Wyer proceedings, consolidating the Bain and Wyer proceedings, and appointing an independent costs referee. The court also ordered that the consolidated proceeding be known as Nathaniel Bain and Anor v International Capital Markets Pty Ltd and Anor and be identified as VID1088/2023. The court further ordered that Echo Law be granted leave to be named as solicitors on the record for the Applicants in the Consolidated Proceeding, and that an independent costs referee be appointed to oversee the proceedings.