Discussion Paper - Law Reform Commission of Western Australia

(3) A judgment or order given in proceedings under this rule shall be binding on
all the persons as representing whom the plaintiffs sue or, as the case may be,
the defendants are sued, but shall not be enforced against any person not a
party to the proceedings except with the leave of the Court.
(4) An application for the grant of leave under subrule (3) must be made by
summons which must be served personally on the person against whom it is
sought to enforce the judgment or order.
(5) Notwithstanding that a judgment or order to which any such application
relates is binding on the person against whom the application is made, that
person may dispute liability to have the judgment or order enforced against
him on the ground that by reason of facts and matters particular to his case he
is entitled to be exempted from such liability.
(6) The Court hearing an application for the grant of leave under subrule (3) may
order the question whether the judgment or order is enforceable against the
person against whom the application is made to be tried and determined in
any manner in which any issue or question in an action may be tried and
determined.
1.4 As discussed in Chapter 2, this provision reflects the traditional rule for
representative proceedings employed by the English Court of Chancery and can be
traced back to the 16th century. 1 There have been no substantive amendments to
the Western Australian provision since it was introduced in 1971. 2
1.5 The traditional rule has been the subject of considerable criticism. Professor
Morabito, who has written extensively on the topic, has noted that ‘the uncertainty
that has been created by the excessive brevity of the rules governing representative
actions greatly hinders the ability of such proceedings to secure the social benefits’
of access to justice, reduced costs and increased efficiency. 3
1.6 The principal problem is that, unless parties ultimately can satisfy the court
that they have the ‘same interest’ in a proceeding, the represented parties have not
‘begun’ a proceeding in compliance with the rule. The lack of case law interpreting
key terms, such as ‘same interest’, has fuelled the uncertainty referred to by Morabito.
If the court later finds there is no relevant same interest, there is a risk that only the
named representative has begun proceedings. In that circumstance, the statute of
limitations will continue to run against the represented parties, and attempts to
institute further proceedings may be dismissed for being out of time. Uncertainty
about this fundamental matter appears to discourage plaintiffs from employing the
Order 18 Rule 12 procedure found in the RSC.
1.7 The present rule causes increased costs for the parties because of the care
that must be taken (and the interlocutory points that may arise) as a result of the
uncertainty about whether the represented parties do have the “same interest” in the
proceeding.
1. See Yeazell SC, ‘From Group Litigation to Class Action Part 1: The industrialisation of group litigation’ (1980) 27 University of California,
Los Angeles Law Review 514, especially 514–16.
2. However, it should be noted that the current provision had its origins in the Rules of the Supreme Court 1955, O16 rr 9 –13. In the 1955
rules, the application was described as a ‘representative action’. While the wording of the provisions differ, the principles that apply to the
interpretation of the respective orders do not.
3. Morabito V, ‘Statutory Limitation Periods and the Traditional Representative Action Procedure’ (2005) 5 Oxford University Commonwealth
Law Journal 113, 114.
4 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper