Discussion Paper - Law Reform Commission of Western Australia

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Contents Introduction 23 Introduction 23 Part IVA proceedings 24 Commonwealth 24 Victoria 24 New South Wales 26 Differences Between the Legislative Schemes 26 Key Features of the Legislative Schemes 27 Commencement of the proceeding 27 Nature of a ‘claim’ 27 Number of claimants 28 The class representative 28 Plaintiff groups – open classes and closed classes 29 Proceeding with a claim against multiple respondents 30 Claims must arise out of related circumstances 31 Common issue of law or fact 32 Costs and security for costs 32 Advantages of the Legislative Schemes 33 Traditional proceedings 35 Queensland 35 Features of the Queensland regime 36 Commencement of proceedings 36 Appointing a representative 36 Binding judgment 36 Costs 37 Examples of representative proceedings in Queensland 37 Advantages and criticisms of the Queensland model 37 South Australia 38 Tasmania 40 Australian Capital Territory 40 Northern Territory 40 Summary of Traditional Proceedings Provisions 40 22 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper
Introduction 3.1 The terms of reference require the Commission to take into account ‘recent developments regarding representative proceedings in other jurisdictions both nationally and internationally’. The developments within the Australian context can be divided into two types: those jurisdictions that have adopted statutory frameworks that allow for representative actions to proceed through federal or state courts (‘Part IVA proceedings’); and those which have retained the traditional rulesbased representative proceeding provisions (‘traditional proceedings’), but have either amended them (as in South Australia) or left them unaltered (as in Western Australia). 3.2 This chapter examines developments in Australia in both of those jurisdictional frameworks. An overview of some of the overseas jurisdictions is undertaken in the following chapter. Chapter 3: 3: Representative Proceedings in in Other Australian Jurisdictions 23
Page 1 and 2: Representative Proceedings Discussi
Page 3 and 4: Contents Acknowledgements v Chapter
Page 5 and 6: Acknowledgements AUTHOR: Tim Hammon
Page 7 and 8: Chapter 1 Introduction 1
Page 9 and 10: Introduction Terms of Reference 1.1
Page 11 and 12: 1.8 In Esanda Finance Corporation L
Page 13 and 14: is to consider the numbers of repre
Page 15 and 16: cartel actions (enforcing competiti
Page 17 and 18: Chapter 2 Representative Proceeding
Page 19 and 20: Representative proceedings in Weste
Page 21 and 22: plaintiffs, who sought to register
Page 23 and 24: 2.20 As well as the deficiencies id
Page 25 and 26: 2.25 After reviewing the authoritie
Page 27: Chapter 3 Representative Proceeding
Page 31 and 32: 3.6 Sections 34 and 35 were introdu
Page 33 and 34: Part 10 of the New South Wales legi
Page 35 and 36: 3.27 While s 33T of the Federal Cou
Page 37 and 38: (e) Guiglielmin v Trescowthick (No
Page 39 and 40: ordered to provide security for cos
Page 41 and 42: Traditional proceedings Queensland
Page 43 and 44: could have been party to proceeding
Page 45 and 46: of the Supreme Court Rules in 1987.
Page 47 and 48: Chapter 4 Comparison of Models 41
Page 49 and 50: Comparison of legislative rules-bas
Page 51 and 52: (c) unless the court otherwise orde
Page 53 and 54: The question whether the claims of
Page 55 and 56: (Cth)’. 23 Ultimately, the ‘opt
Page 57 and 58: 4.43 The relevant legislative provi
Page 59 and 60: Interlocutory disputes party may de
Page 61 and 62: for reasons as expressed in relatio
Page 63 and 64: Chapter 5 Overseas Models 57
Page 65 and 66: United States of America 74 The cur
Page 67 and 68: Group litigation regime Current fra
Page 69 and 70: Consistency with the overriding obj
Page 71 and 72: 5.25 One well known but ultimately
Page 73 and 74: 5.35 Thirdly, there are a number of
Page 75 and 76: Settlement and remedies 5.43 Action
Page 77 and 78: NEW ZEALAND 5.52 Rule 4.24 of the H
Page 79 and 80:
(c) (d) 5.62 Courts to receive addi
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
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Division 4—Judgment etc. (3) If t
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(4) The Court may allow a group mem
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(i) (ii) vexatious litigants (howev
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(c) the claims of all those persons
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33K Causes of action accruing after
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(3) If the Court appoints a person
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Division 4—Judgment, etc. (4) The
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Division 6—Miscellaneous common t
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Civil Procedure Act 2005 (NSW) Part
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160 Persons under legal incapacity
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(a) the costs that would be incurre
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Division 3—Notices 174 Settlement
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(3) Subject to section 173, the Cou
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182 Suspension of limitation period
Page 141 and 142:
Appendix 2: Representative action p
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9.33 Person may give consent to be
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(b) (c) define the nature of the cl
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(a) (b) damages which would require
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(4A) If it appears to the court tha
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Tasmania Supreme Court Rules 2000 (
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266 Representation—numerous concu
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Appendix 3: Stakeholders consulted
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Discussion Paper - Law Reform Commission of Western Australia

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