Discussion Paper - Law Reform Commission of Western Australia

plaintiffs, who sought to register an interest over land pursuant to the Native Title
Act 1993 (Cth).
2.11 Master Sanderson, at first instance, observed that:
[The rule was] not often relied upon – either in this jurisdiction or in other States
which all have a broadly similar provision. However, the New South Wales equivalent
of this rule did receive detailed consideration by the High Court in Carnie v Esanda
Finance Corp Ltd. 14 From this decision, two rules emerge which are important for
present purposes. First, once the existence of numerous parties and the requisite
commonality of interest are ascertained, the rule is brought into operation subject
only to the exercise of the court’s power to order otherwise … It is important to
note that it is for the party commencing proceedings to determine whether or not
it satisfies the requirements of O18 R12(1). No application has been made to the
Court to authorise representative proceedings. Those proceedings can be commenced
by the party and ‘unless the Court otherwise orders’ continued.
The second point that emerges from the decision is that when considering whether
representative proceedings should be allowed to continue, matters to be taken into
account include whether representative proceedings would involve greater expense
and prejudice than other modes of trial, whether consent is required from the group
members, the right of members to opt out, the position of persons under a disability,
alterations to the description of the group, settlement and discontinuance of the
proceedings and notices to the various group members. 15
2.12 Master Sanderson held that it was appropriate to allow the action to proceed
as a representative proceeding. 16
2.13 Notwithstanding that the Court of Appeal (comprising Wheeler and
McLure JA) was of the view that Master Sanderson was correct in his reliance upon
the principles set out in Carnie v Esanda Finance Corporation, 17 it subsequently held
that the order that the action proceed as a representative proceeding should be set
aside on the basis that ‘it was not an order sought by either party’. 18
2.14 The Court of Appeal held that having regard to the proper construction of
Order 18 Rule 12:
[T]he Court has no power to order that a proceeding be a representative proceeding,
as the Master has purported to do. That rule suggests that the only role for the Court
is to determine either: whether the proceeding satisfies the description in r 12(1),
if it is purportedly brought as a representative proceeding; or whether, assuming it
satisfies the description, it should be continued as such a proceeding. 19
2.15 While there remains no other appellate authority dealing with the Western
Australian rule relating to representative proceedings, Cashman observes that
‘given the similarity between these rules and the representative action rules in other
jurisdictions, it is likely that they will be applied in the same way’. 20 On that basis,
much of the discussion relating to traditional proceedings in Chapter 3 of this Paper
has application to a discussion involving Order 18 Rule 12 of the RSC.
14. (1995) 182 CLR 398.
15. Ashwin v Minara Resources Ltd [2006] WASC 75, [19]–[20].
16. Ibid [21]–[22].
17. (1995) 182 CLR 398.
18. See Minara Resources Ltd v Ashwin [2007] WASCA 107, [42].
19. Ibid.
20. Cashman P, Class Action Law and Practice (Sydney: Federation Press, 2007) 57.
Chapter 2: Representative Proceedings in Western Australia 15