Discussion Paper - Law Reform Commission of Western Australia

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Queensland Uniform Civil Procedure Rules 1999 (Qld) – Rules 75–77 Division 4—Representative party A proceeding may be started and continued by or against 1 or more persons who have the same interest in the subject matter of the proceeding as representing all of the persons who have the same interest and could have been parties in the proceeding. Order for representation (1) At any stage of a proceeding brought by or against a number of persons who have the same interest under rule 75, the court may appoint 1 or more parties named in the proceeding, or another person, to represent, for the proceeding, the persons having the same interest. (2) However, when making an order appointing a person who is not a party, the court must also make an order under rule 62 including the person as a party. Enforcement of order against representative party (1) An order made in a proceeding against a representative party under this division may be enforced against a person not named as a party only with the court’s leave. Note: See also the Supreme Court of Queensland Act 1991, section 82 (Order binds persons who are represented). (2) An application for leave to enforce an order must be served on the person against whom enforcement of the order is sought as if the application were an originating process. Supreme Court of Queensland Act 1991 (Qld) – s 82 82. Order binds persons who are represented (1) This section applies to an order made in a proceeding started and continued by or against 1 or more persons (the representative party) who have the same interest in the proceeding as representing all of the persons who have the same interest and could have been parties in the proceeding. (2) Unless the court orders otherwise, in addition to binding the parties to the proceeding, the order binds the persons who have the same interest as the representative party and could have been parties in the proceeding. (3) The order may be enforced against a person not named as a party only with the court’s leave. 144 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper
Tasmania Supreme Court Rules 2000 (Tas) – Division 5, Rules 335–336 Division 5—Representative proceedings 335 Numerous plaintiffs In any proceeding in which 7 or more persons – (a) have the same or a common right against another person; or (b) have the same or a common interest or the same rights in, to or in respect of a fund or other property; or (c) otherwise have a common interest in any matter – one or more of the persons may sue or apply on behalf, or for the benefit, of all persons having the right or interest. 336 Numerous defendants In any proceeding in which 7 or more persons – (a) are subject to the same or a common obligation; or (b) have the same or a common interest in or in respect of, or are under the like obligations in respect of, a fund or other property; or (c) otherwise have a common interest in any matter – one or more of those persons may be sued or made respondent or may be authorised by the Court or a judge to defend the proceeding with respect to the obligation or interest on behalf, or for the benefit, of all persons subject to the obligation or having the interest. Magistrates Court (Civil Division) Rules 1998 (Tas) – Rules 16–17 16 Representation order (1) If 3 or more persons have a cause of action or defence arising out of similar circumstances, the Court, by consent of the persons, may make an order appointing one or more of those persons to sue or defend on behalf of, or for the benefit of, any other person who consents to the order. (2) Unless the Court orders otherwise, a representation order confers on a person the authority and power to conduct, settle or otherwise dispose of the whole or any part of an action. (3) A representation order may be made irrespective of whether the remedies or relief sought by the persons are identical. (4) Any person represented under this rule may be entitled to, or liable for, costs in any proportion or amount the Court determines. 17 Consent to representation order A consent to a representation order – (a) is to be in writing, signed by all persons consenting to the order and filed; and (b) may be withdrawn with the leave of the Court not less than 21 days before the date fixed for the trial of the action. Appendices 145
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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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(c) (d) 5.62 Courts to receive addi
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5.70 There is no restriction on the
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Commonality requirement Typicality
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5.84 Although it is not expressly s
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Case examples to assess the impact
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protects absent class members and t
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Features of the regime Commencement
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Summary 5.123 What can we draw from
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Chapter 6 Proposed Reform 89
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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 and 130: Civil Procedure Act 2005 (NSW) Part
Page 131 and 132: 160 Persons under legal incapacity
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: (4A) If it appears to the court tha
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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