The grain trader's barrister, Charles Scerri, QC, told a pre-trial hearing in the Federal Court on Friday that his client would file a suit next week claiming a group of its shareholders were being funded by an unregistered managed investment scheme.

Justice Lindsay Foster said he would need to be persuaded that the Brookfield Multiplex decision made it "inevitable" that the AWB case could not proceed as scheduled on November 30.

Justice Foster raised the possibility that the AWB case could go ahead as an action solely by the lead plaintiffs, two investors from the Riverina, John and Kaye Watson.

The judge also floated the potential cure of an independent authority being appointed to look after the interests of the members of the class action.

"I would have thought, untutored or unassisted by submissions or arguments, that the beneficiaries of the scheme could be protected by an appropriate order which would be in the nature of either a receiver or liquidator or some protective device."

The court also heard that the solicitors for the plaintiffs in both class actions, Maurice Blackburn, would seek leave to appeal to the High Court and in the meantime have applied to the Australian Securities and Investments Commission for exemptions.

On October 20 a full bench of the Federal Court upheld an appeal by Brookfield Multiplex that the arrangement provided by a Canadian-backed Singapore funder, International Litigation Funding Partners, and the plaintiffs' retainer with Maurice Blackburn constituted a managed investment scheme.

The Corporations Act requires managed investment schemes to be registered, unless ASIC grants an exemption. No orders have yet been made about the consequences for the case. Submissions on that topic are due to be filed by November 10.

Mr Scerri said the similar features of the AWB class action, which is funded by IMF (Australia), meant "that it seems clear on the full court authority that a scheme like this is unlawful".

He did not ask for the trial date to be abandoned but said "it would be a very strange thing if we could be having a hearing on November 30 without this issue being resolved".

"If the prosecution of this proceeding contravenes the Corporations Act, none of us ought to be involved in it," he said.

The case against AWB seeks more than $100 million in compensation for losses allegedly caused by the Iraqi kickbacks scandal.