Discussion Paper - Law Reform Commission of Western Australia

The Commission’s preliminary view
6.25 Complex and high-value representative proceedings are now an integral
part of Australian litigation. The problem for Western Australia is that Order 18
Rule 12 of the Rules of the Supreme Court 1971 (WA) provides that a proceeding
is only properly begun as a representative proceeding where ‘numerous persons’
have the ‘same interest’ in any proceeding. Whether parties have the same interest
is the subject of few cases, 38 and some controversy. If there is not the relevant same
interest, there is a risk that only the named representative has begun proceedings
in compliance with the rule. The statute of limitations will, in that circumstance,
continue to run against those parties who are represented with the consequence
that they may not be entitled to relief at the end of the proceedings. Consequently,
the current rule creates an unacceptable degree of uncertainty for litigants and they
and their advisors generally choose not to commence proceedings under Order 18
Rule 12.
6.26 While this risk remains, the uncertainty will persist and large-scale cases,
otherwise suited to being brought as representative actions in Western Australia,
will not be conducted under the rule. Consequently, they will either not be litigated
efficiently and in a cost-effective manner; not be brought in Western Australian state
courts; or not be brought at all.
6.27 The Commission is of the view that parties who must or may litigate in Western
Australia are entitled to a civil procedure (including for multi-party proceedings)
that does not create unnecessary risks that are avoidable products of the current
rule. The statutory regime that has been adopted federally, and thereafter in Victoria
and New South Wales, appears to address the fundamental problem identified. The
Commission sees good reason to adopt that solution, and no compelling reasons to
depart in substance from those regimes.
6.28 There are a number of incidental questions that arise in relation to representative
proceedings and these have been considered in Australian jurisdictions where
established legislative regimes for representative proceedings have existed for some
time. They are discussed, in part, in Chapter 4. However, they are not questions
that require determination in order for the Commission to reach the conclusion
that Order 18 Rule 12 of the Rules of the Supreme Court should be replaced with
a legislative regime which is substantially similar in nature to the existing federal
regime found in Part IVA of the Federal Court of Australia Act 1976 (Cth).
38. Duke of Bedford v Ellis [1901] AC 1 being the most significant.
96 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper