Discussion Paper - Law Reform Commission of Western Australia

(3) Subject to section 173, the Court is not to make an award of damages under
subsection (1)(f) unless a reasonably accurate assessment can be made of the
total amount to which group members will be entitled under the judgment.
(4) If the Court has made an award of damages, the Court may give such directions
(if any) as it thinks just in relation to:
(a) the manner in which a group member is to establish the member’s
entitlement to share in the damages, and
(b) the manner in which any dispute regarding the entitlement of a group
member to share in the damages is to be determined.
178 Constitution etc of fund
(cf s33ZA FCA)
(1) Without limiting the operation of section 177(2), in making provision for the
distribution of money to group members, the Court may provide for:
(a) the constitution and administration of a fund consisting of the money
to be distributed, and
(b) either:
(i) the payment by the defendant of a fixed sum of money into the
fund, or
(ii) the payment by the defendant into the fund of such instalments,
on such terms, as the Court directs to meet the claims of group
members, and
(c) entitlements to interest earned on the money in the fund.
(2) The costs of administering a fund are to be borne by the fund, or by the
defendant in the representative proceedings, or by both, as the Court
directs.
(3) If the Court orders the constitution of a fund under subsection (1), the order
must:
(a) require notice to be given to group members in such manner as is
specified in the order, and
(b) specify the manner in which a group member is to make a claim for
payment out of the fund and establish the group member’s entitlement
to payment, and
(c) specify a day (which is 6 months or more after the day on which the
order is made) on or before which the group members are to make a
claim for payment out of the fund, and
(d) make provision in relation to the day before which the fund is to be
distributed to group members who have established an entitlement to
be paid out of the fund.
(4) The Court may allow a group member to make a claim after the day fixed
under subsection (3)(c) if:
(a) the fund has not already been fully distributed or applied in accordance
with an order under subsection (5), and
(b) it is just to do so.
(5) On application by the defendant after the day fixed under subsection (3)(d),
the Court may make such orders as it thinks fit for the payment from the
fund to the defendant of the money remaining in the fund.
Appendices 131