Discussion Paper - Law Reform Commission of Western Australia

New South Wales
Part 4A; or to a proceeding concerning the administration of the estate of a deceased
person or property subject to a trust. 20
3.11 Up until 2005, Part 8 Rule 13 of the Supreme Court Rules 1970 (NSW)
contained a representative proceeding provision similar to the current provision in
the Rules of the Supreme Court 1971 (WA). In 2005, the provision was replaced by
rules 7.4 and 7.5 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). The
rules in the UCPR left the provisions that were previously set out in Part 8 Rule 13
essentially unchanged.
3.12 In 2006, Gummow, Hayne and Crennan JJ of the High Court noted that the
UCPR ‘contained few provisions equivalent to those found in the more elaborate
regulation of representative proceedings provided by Part IVA’. 21 In O’Sullivan v
Challenger Managed Investments Ltd, 22 the New South Wales Supreme Court
subsequently ‘reinforced the restrictive scope of representative actions’, leading to
amendment of Rule 7.4 in November 2007. 23 This amendment made the regime
more comprehensive than other jurisdictions with traditional representative
proceedings regimes by making it apply to:
(a) Any matter in which:
(i) Numerous persons have claims against the same person;
(ii) The claims of all those persons are in respect of, or arise out of, the same,
similar or related circumstances; and
(iii) The claims of all those persons give rise to a substantial common issue of
law and fact; or
(b) Any matter in which numerous persons have the same liability.
3.13 The amendments theoretically made Rule 7.4 similar to the regime found in
Part IVA of the Federal Court of Australia Act 1976 (Cth); 24 however, the rule did not
address the procedural steps of representative proceedings in the same detail and, as
a result, uncertainty as to the potentially restrictive scope of the rule remained.
3.14 The Courts and Crimes Legislation Further Amendment Act 2010 (NSW)
repealed Rule 7.4 and established Part 10 of the Civil Procedure Act 2005 (NSW).
Part 10, which came into operation on 4 March 2011, is a statutory representative
proceedings regime substantially similar to that found in Part IVA.
Differences between the legislative schemes
3.15 As can be seen by a review of the comparative table at Appendix 2, there are
a number of differences between Part 10, and Part IVA and Part 4A 25 including
differences in language between the regimes in relation to the description of
proceedings, parties and method of commencement of proceedings. 26 In addition,
20. Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 18.01.
21. Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58, [47]. See also Esanda Finance Corporation Ltd v Carnie (1992) 29
NSWLR 382, 388 (Gleeson CJ).
22. (2007) 214 FLR 1.
23. Ibid [41[, as noted in Clark S & Harris C, ‘Class Actions in Australia: (Still) a work in progress’ (2008) 31 Australian Bar Review 63, 66.
24. Legg M & Dowler J, ‘The Class Actions Juggling Act’ (2010) 48 Law Society Journal 59, 59.
25. For further discussion, see Grave D, Adams K & Betts J, Class Actions in Australia (Sydney: Thomson Reuters, 2nd ed, 2012) [2.495].
Provisions that are substantially similar across all three regimes do not feature in Appendix 2.
26. Grave, Adams & Betts, ibid [2.495].
26 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper