Discussion Paper - Law Reform Commission of Western Australia

of the Supreme Court Rules in 1987. The effects of the amendments embodied in
Rule 34 of the Supreme Court Rules 1987 (SA) were threefold.
3.77 Firstly, the amendments allowed cases to proceed as representative actions
on a more ‘liberal’ assessment of common issues of fact and law. 131 Secondly, an
amendment was introduced that required the representative parties to seek an order
from the court authorising the action be maintained as a representative action. 132 And
thirdly, the amendments specifically addressed the issue of damages and expressly
stipulated that individual assessments of damages (and other individual remedies
sought) were not to preclude a representative action from proceeding. 133
3.78 As noted by Cashman, the effect of the introduction of the 1987 amendments
was to import procedural guidelines into the rules. 134 As with many other rulesbased
representative proceedings regimes, the paucity of procedural instructions
contained within Rule 34 was criticised by members of the judiciary. 135
3.79 In 2006, the nature and scope of the representative proceeding rule was
amended (and expanded). The current rule relating to representative proceedings
in South Australia is found in Division 3, Rules 80–84 of the Supreme Court Civil
Rules 2006 (SA).
3.80 In some respects the 2006 amendments to the rules relating to representative
proceedings in South Australia produced a hybrid model, whereby a plaintiff can
bring an application for authority to proceed as the representative of a class pursuant
to Rule 80(2) of the Supreme Court Civil Rules 2006. This aspect of the South
Australian legislation appears to have a similar affect to a US style ‘certification’
requirement, not otherwise found elsewhere in Australian jurisdictions. For this
reason, the amendment to the South Australian regime has resulted in its label of a
‘quasi class action provision’. 136
3.81 Another point of difference between the South Australian procedure and any
other state or federal procedure relates to the fact that consent of group members is
required before the proceedings have commenced, which as Grave, Adams and Betts
have observed ‘demonstrates a clear preference in South Australia for an “opt-in”
approach to representative proceedings, in contradistinction to the basic structure
of proceedings commenced under Part IV A of the Federal Court Act’. 137
138
3.82 The Commission’s observations made in relation to the Queensland regime
also apply in respect of South Australia.
131. Cashman P, Class Action and Practice (Sydney: Federation Press, 2007) 45.
132. See Supreme Court Rules 1987 (SA) r 34.02.
133. See Supreme Court Rules 1987 (SA) r 34.03.
134. Cashman P, Class Action and Practice (Sydney: Federation Press, 2007) 45.
135. See Albrook v Paterson (1995) LSJS 24 where Burley J was less than complimentary of the regime in terms of guidance to be found as to
the scope and operation of Order 34.01, either by way of previous authority or instructions within the rules themselves.
136. Cashman P, Class Action and Practice (Sydney: Federation Press, 2007) 45.
137. Grave D, Adams K & Betts J, Class Actions in Australia (Sydney: Thomson Reuters, 2nd ed, 2012) [2.710].
138. See above [3.72]–[3.73].
Chapter 3: Representative Proceedings in Other Australian Jurisdictions 39