Discussion Paper - Law Reform Commission of Western Australia

that the parties get on with the litigation and do not become bogged down in what
are often academic or sterile arguments about pleadings, particulars, practices and
procedures. What I say should not be taken as a particular criticism of the present
respondents. But it is not unknown for respondents in class actions to do whatever is
necessary to avoid a trial, usually by causing the applicants to incur prohibitive costs.
The court should be astute to ensure that such tactics are not successful. 48
4.59 Lindgren J has suggested that a practical solution to prevent unnecessary
interlocutory disputes is to convene an early case management conference. 49
4.60 Much of the discussion around management of interlocutory disputes
overlaps with the implementation of effective case management more generally. The
legislative regimes each have corollary practice notes to govern how representative
actions are managed and the Commission is of the opinion that a similar approach
would work effectively in Western Australia. 50
Cy-prés regimes
4.61 A cy-prés or ‘next-best’ regime refers to a situation where:
[A] class is entitled (via either judgment or settlement) to a sum of damages, but
distribution of these damages to the class members, individually or collectively,
is impractical or infeasible. In that case the court [can] use cy-prés principles to
distribute unclaimed funds … for a purpose as near as possible to the legitimate
objectives underlying the lawsuit, in the interests of class members, and the interests
of those similarly situated. 51
4.62 Cy-prés relief is part of the Canadian class action regime, which is discussed in
detail below. While the ALRC did not recommend the introduction of the regime
in 1988, 52 the introduction of a cy-prés regime into the Victorian legislation was
recommended by the Victorian Law Reform Commission as part of its civil justice
review in May 2008. 53 To date, however, it has not been implemented.
4.63 In response to the VLRC recommendation in relation to cy-prés relief, Professor
Morabito attributed the lack of support for the introduction of a cy-prés regime in
Victoria to be partially a result of a philosophical approach that the introduction
of a representative action regime should not penalise respondents any more than is
currently foreshadowed by existing remedies to causes of action otherwise brought
in tort, contract or pursuant to a statue. 54
4.64 The Commission is of the preliminary view that it does not recommend that
cy-prés relief be introduced as part of a Western Australian legislative regime,
48. Bright v Femcare Ltd (2002) 195 ALR 574, 607–8.
49. Lindgren KE, ‘Some Current Practical Issues in Class Action Litigation’ (2009) 15(2) University of New South Wales Law Journal Forum
16.
50. For instance, the strategic conferencing system recently introducted into the Surpreme Court is an example of a case management practice
that could be adopted (successfully one might think) for representatvie actions commenced in that Court: see Western Australian Supreme
Court Practice Direction [7020.1.2.9].
51. Mulerhon R, ‘Cy-Pres Damages Distributions in England: A new era for consumer redress’ (2009) 20 European Business Law Review 307,
309, as cited in Morabito V, ‘The Victorian Law Reform Commission’s Class Action Reform Strategy’ (2009) 15(2) University of New South
Wales Law Journal Forum 107, 110.
52. There is a broad discussion about how one would dispose of aggregate funds, although the notion of cy-prés relief was not directly discussed:
see ALRC, Grouped Proceedings in the Federal Court, Report No 46 (1988) [236]–[240].
53. Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008) 559.
54. Morabito V, ‘The Victorian Law Reform Commission’s Class Action Reform Strategy’ (2009) 15(2) University of New South Wales Law
Journal Forum 107, 110.
54 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper