Discussion Paper - Law Reform Commission of Western Australia

cartel actions (enforcing competition law rights and obligations) and large-scale
product liability class actions. Although, as demonstrated above, the numbers of
such proceedings are still relatively small, that is not reflective of their significance,
because a single representative proceeding may seek very substantial relief on behalf
of a large number of plaintiffs. 30
1.27 Western Australian courts should not be an unattractive forum to conduct
and resolve such disputes by reason of the uncertain application of the existing test
for the valid commencement of representative proceedings.
Terminology
1.28 This report concerns proceedings that are brought by numerous plaintiffs or
against numerous defendants (or both) under a rule that permits a representative
plaintiff to begin a legal proceeding on behalf of identified plaintiffs, or a class or
plaintiffs (who may be identified only by the nature of their interest), or against
numerous defendants (whether identified individually or by a class).
1.29 Discussion of representative proceedings in Australia must begin with the
recognition that, in the popular imagination, proceedings with numerous plaintiffs
or defendants are often influenced by perceptions of the ‘class action’ as that term
is applied to multi-party litigation in the United States of America. The expression
‘class action’ has antecedents in English and Australian law, although it is often
now associated with (or with what is perceived to be) American-style class actions.
Such cases in the United States have a number of differences to their Australian
counterparts.
1.30 As the High Court noted in Carnie v Esanda Finance Corporation:
The term ‘class action’ is used in various senses. Sometimes it is employed as a generic
term to comprehend any procedure which allows the claims of many individuals against
the same defendant to be brought or conducted by a single representative. At other
times, when the ‘same interest’ stipulation was thought to preclude the application of
the representative action procedure to actions for damages on the ground that each
individual’s entitlement to damages would have to be independently assessed, the
term ‘class action’ was employed to refer to an extension of the representative action
to cover such actions.
The remaining sense in which the term ‘class action’ is used is by way of reference to
the class action procedures prescribed and applied in the United States, such as the
procedures prescribed by the Federal Rules of Civil Procedure, r. 23. 31
1.31 Within Australia there are two separate models of representative proceedings.
The first is the traditional rules-based representative proceeding. In many states (as
seen in Chapter 3) this is the sole means of implementing a representative proceeding
(other than naming each plaintiff (or defendant) in the statement of claim or writ).
Rules governing representative proceedings are found in the High Court Rules,
Federal Court Rules and Court Procedure Rules in the Australian Capital Territory;
Uniform Civil Procedure Rules in Queensland; and in the Supreme Court Rules in
the Northern Territory, South Australia, Tasmania and Victoria 32 Importantly,
30. See, eg, Andrews v Australia & New Zealand Banking Group Ltd [2012] HCA 30 (more commonly known as the ‘bank “over limit” fees
case’) where the number of members of the representative class comprise of approximately 38 000 group members.
31. Carnie v Esanda Finance Corporation (1995) 182 CLR 398, 403–4 (Mason CJ, Deane & Dawson JJ) (footnotes omitted).
32. High Court Rules 2004 (Cth) r 21.09; Federal Court Rules (Cth) O 6 r 13; Court Procedure Rules 2006 (ACT) Pt 2.4 Div 2.4.7; Supreme
Court Rules (NT) O 18; Uniform Civil Procedure Rules (Qld) rr 75ff; Supreme Court Civil Rules 2006 (SA) rr 80–82; Supreme Court Rules
2000 (Tas) rr 335, 336; Supreme Court (General Rules Procedure) Rules 2005 (Vic) O 18. As will be clear from this list, those states that have
Introduction 9