Discussion Paper - Law Reform Commission of Western Australia

Features of the Queensland regime
Commencement of proceedings
of the Commission that there has been no appreciable increase in the number of
representative proceedings instituted in Queensland as a result of the change. 106
3.63 The UCPR (Qld) does not provide any framework for commencement
of representative proceedings; however, it is clear that two conditions must be
satisfied:
(a)
(b)
represented parties must have the same interest; and
represented parties must have been able to have been joined in the original
proceeding.
Appointing a representative
Binding judgment
3.64 As already noted, the second requirement is a departure from the earlier
provisions existing in Queensland. The UCPR (Qld) provides for joinder of parties
where their presence is necessary for the adjudication of all issues; where common
questions of law or fact are likely to arise if separate proceedings are commenced;
or where the relief sought arises out of the same transaction or event. 107 Thus, there
appears to be additional emphasis on the need for commonality of interest between
represented persons.
3.65 Ordinarily no prior court approval is required for the appointment of
a representative party in Queensland. 108 Furthermore, it has been held that
a representative need not identify every party who shares the same interest in a
proceeding. It will be adequate that the parties be identified with sufficient
particularity. 109 Where a person is suing or being sued in a representative capacity,
the plaintiff or applicant must state that representative capacity on the originating
process. 110
3.66 The court may also authorise a representative to act on behalf of all persons
in an action commenced under Rule 75 at any stage of the proceedings. The
representative may be a person named in the proceeding or another person. Where
the chosen representative is not named in the proceeding the court must make an
order including him or her as a party. 111
3.67 The unnamed persons or entities in a representative action are not parties
to the proceeding. They need not consent to the institution of proceedings on
their behalf and are not subject to the ordinary liabilities of litigants in respect
of discovery or disclosure. 112 Nonetheless, orders and judgments in representative
proceedings bind the representative party and all parties with the same interest who
106. Consultation with Rod Hodson, Maurice Blackburn Queensland, 5 May 2012.
107. Uniform Civil Procedure Rules 1999 (Qld) rr 62, 65.
108. Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655, 658.
109. Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, 403, 408.
110. Uniform Civil Procedure Rules 1999 (Qld) r 18.
111. Uniform Civil Procedure Rules 1999 (Qld) rr 62, 76.
112. Cameron v National Mutual Life Assn of Australasia Ltd (No 2) [1992] 1 Qd R 133, 141, 144.
36 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper