Discussion Paper - Law Reform Commission of Western Australia

4.5
In the United Kingdom, Professor Rachael Mulheron has observed that:
There is both English and overseas judicial opinion which states that this provision
changes the substantive law governing an individual’s entitlement to bring
proceedings … Some law reform commissions have expressed the view that the
tolling of limitation periods is a matter of substantive law, requiring legislation and
not rules of court: Alberta Report, para 484; South Australian Report, p 10–11;
Manitoba Report, p 38. 3
4.6 This concern is consistent with the position in Australian case law which, as
noted by Professor Morabito,
would suggest that it would be beyond the power of courts to insert, in the rules of
court governing representative actions, provisions similar to the ones that are found
in legislative class action regimes and which suspend the operation of statutory
limitation periods upon the commencement of a class proceeding. 4
4.7 Morabito concluded that, as indicated by the Supreme Court of Canada,
these problems ‘undoubtedly [require] legislative intervention ... and is but a further
illustration of the need for a comprehensive legislative scheme for the institution
and conduct of class actions’. 5
4.8 While the position in relation to the protection of the rights of class members
under the federal, Victorian and New South Wales legislative schemes may not be
determined with precision, there cannot be any doubt that the statutory protection
that is afforded by the language in s 33ZE goes much further than the rules-based
regimes, which are silent on this aspect.
4.9 Given it is now clear that laws pertaining to limitations are of a substantive
nature and not simply procedural impediments to bringing a claim, 6 it appears that
the only way to ensure certainty (as well as consistency and fairness) in relation to
group proceedings is to implement any amendment by way of legislative reform,
as opposed to amending rules of court. This is discussed further in the following
chapter.
Criteria for characterisation and identification of a group
or a class
4.10 The threshold requirements for commencing a representative proceeding under
the Federal Court model are dramatically different to the threshold requirements for
commencement of a representative proceeding under Order 18 Rule 12 of the Rules
of the Supreme Court 1971 (WA). Under the Western Australian rule, the following
threshold tests apply:
(a)
(b)
there must be ‘numerous persons’;
they have the ‘same interest’ in any proceedings; and
3. Mulheron R, ‘Implementing an Opt-Out Collective Action in England and Wales: Legislation versus court rules’, Appendix N in Civil
Justice Council, Improving Access to Justice through Collective Actions: Developing a more efficient and effective procedure for collective actions
(2008) 421–2.
4. Morabito V, ‘Statutory Limitation Periods and the Traditional Representative Action Procedure’ (2005) 5 Oxford University Commonwealth
Law Journal 113, 128–9 (footnotes omitted).
5. Ibid 138, quoting General Motors of Canada Ltd v Naken [1983] 1 SCR 72, 105.
6. See John Pfeiffer & Co v Rogerson (2000) 203 CLR 503.
44 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper