Discussion Paper - Law Reform Commission of Western Australia

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(a) whether or not the relief sought: (i) (ii) is, or includes, equitable relief, or consists of, or includes, damages, or (iii) includes claims for damages that would require individual assessment, or (iv) is the same for each person represented, and (b) whether or not the proceedings: (i) are concerned with separate contracts or transactions between the defendant in the proceedings and individual group members, or (ii) involve separate acts or omissions of the defendant done or omitted to be done in relation to individual group members. 158 Standing (cf s33D FCA) (1) For the purposes of section 157(1)(a), a person has a sufficient interest to commence representative proceedings against another person on behalf of other persons if the person has standing to commence proceedings on the person’s own behalf against that other person. (2) The person may commence representative proceedings on behalf of other persons against more than one defendant irrespective of whether or not the person and each of those persons have a claim against every defendant in the proceedings. (3) If a person has commenced representative proceedings, that person retains standing: (a) to continue the proceedings, and (b) to bring an appeal from a judgment in the proceedings, even though the person ceases to have a claim against any defendant. 159 Is consent required to be a group member (cf s33E FCA) (1) Subject to subsection (2), the consent of a person to be a group member is not required. (2) None of the following is a group member in representative proceedings unless the person gives consent in writing to being so: (a) the Commonwealth, a State or a Territory, (b) a Minister of the Commonwealth, a State or a Territory, (c) a body corporate established for a public purpose by a law of the Commonwealth, a State or a Territory, other than an incorporated company or association, (d) an officer of the Commonwealth, a State or a Territory, in his or her capacity as an officer. 124 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper
160 Persons under legal incapacity (cf s33F FCA) (1) It is not necessary for a person under legal incapacity to have a tutor merely in order to be a group member. (2) A group member who is a person under legal incapacity may only take a step in representative proceedings, or conduct part of the proceedings, by the member’s tutor. 161 Originating process (cf s33H FCA) (1) The originating process in representative proceedings, or a document filed in support of the originating process, must, in addition to any other matters required to be included: (a) describe or otherwise identify the group members to whom the proceedings relate, and (b) specify the nature of the claims made on behalf of the group members and the relief claimed, and (c) specify the question of law or facts common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members. 162 Right of group member to opt out (cf s33J FCA) (1) The Court must fix a date before which a group member may opt out of representative proceedings in the Court. (2) A group member may opt out of the representative proceedings by written notice given under the local rules before the date so fixed. (3) The Court may, on application by a group member, the representative party or the defendant in the proceedings, fix another date so as to extend the period during which a group member may opt out of the representative proceedings. (4) Except with the leave of the Court, the hearing of representative proceedings must not commence earlier than the date before which a group member may opt out of the proceedings. 163 Causes of action accruing after commencement of representative proceedings (cf s33K FCA) (1) The Court may at any stage of representative proceedings, on application by the representative party, give leave to amend the originating process commencing the representative proceedings so as to alter the description of the group. Appendices 125
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Representative Proceedings Discussi
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Contents Acknowledgements v Chapter
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Acknowledgements AUTHOR: Tim Hammon
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Chapter 1 Introduction 1
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Introduction Terms of Reference 1.1
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1.8 In Esanda Finance Corporation L
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is to consider the numbers of repre
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cartel actions (enforcing competiti
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Chapter 2 Representative Proceeding
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Representative proceedings in Weste
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plaintiffs, who sought to register
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2.20 As well as the deficiencies id
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2.25 After reviewing the authoritie
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Chapter 3 Representative Proceeding
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Introduction 3.1 The terms of refer
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3.6 Sections 34 and 35 were introdu
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Part 10 of the New South Wales legi
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3.27 While s 33T of the Federal Cou
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(e) Guiglielmin v Trescowthick (No
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ordered to provide security for cos
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Traditional proceedings Queensland
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could have been party to proceeding
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of the Supreme Court Rules in 1987.
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Chapter 4 Comparison of Models 41
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Comparison of legislative rules-bas
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(c) unless the court otherwise orde
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The question whether the claims of
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(Cth)’. 23 Ultimately, the ‘opt
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4.43 The relevant legislative provi
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Interlocutory disputes party may de
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for reasons as expressed in relatio
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Chapter 5 Overseas Models 57
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United States of America 74 The cur
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Group litigation regime Current fra
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Consistency with the overriding obj
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5.25 One well known but ultimately
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5.35 Thirdly, there are a number of
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Settlement and remedies 5.43 Action
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NEW ZEALAND 5.52 Rule 4.24 of the H
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Page 81 and 82: 5.70 There is no restriction on the
Page 83 and 84: Commonality requirement Typicality
Page 85 and 86: 5.84 Although it is not expressly s
Page 87 and 88: Case examples to assess the impact
Page 89 and 90: protects absent class members and t
Page 91 and 92: Features of the regime Commencement
Page 93 and 94: Summary 5.123 What can we draw from
Page 95 and 96: Chapter 6 Proposed Reform 89
Page 97 and 98: The shape of reform 6.1 The Commiss
Page 99 and 100: A prudent approach 6.9 Notwithstand
Page 101 and 102: in attempting to embrace the proced
Page 103 and 104: Proposal for a legislative scheme i
Page 105 and 106: Appendices 99
Page 107 and 108: Appendix 1: Representative proceedi
Page 109 and 110: 33H Originating process (1) An appl
Page 111 and 112: (a) (b) the proceeding may be conti
Page 113 and 114: Division 4—Judgment etc. (3) If t
Page 115 and 116: (4) The Court may allow a group mem
Page 117 and 118: (i) (ii) vexatious litigants (howev
Page 119 and 120: (c) the claims of all those persons
Page 121 and 122: 33K Causes of action accruing after
Page 123 and 124: (3) If the Court appoints a person
Page 125 and 126: Division 4—Judgment, etc. (4) The
Page 127 and 128: Division 6—Miscellaneous common t
Page 129: Civil Procedure Act 2005 (NSW) Part
Page 133 and 134: (a) the costs that would be incurre
Page 135 and 136: Division 3—Notices 174 Settlement
Page 137 and 138: (3) Subject to section 173, the Cou
Page 139 and 140: 182 Suspension of limitation period
Page 141 and 142: Appendix 2: Representative action p
Page 143 and 144: 9.33 Person may give consent to be
Page 145 and 146: (b) (c) define the nature of the cl
Page 147 and 148: (a) (b) damages which would require
Page 149 and 150: (4A) If it appears to the court tha
Page 151 and 152: Tasmania Supreme Court Rules 2000 (
Page 153 and 154: 266 Representation—numerous concu
Page 155 and 156: Appendix 3: Stakeholders consulted
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Discussion Paper - Law Reform Commission of Western Australia

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