Discussion Paper - Law Reform Commission of Western Australia

NEW ZEALAND
5.52 Rule 4.24 of the High Court Rules (NZ) provides that:
One or more persons may sue or be sued on behalf of, or for the benefit of, all
persons with the same interest in the subject of a proceeding–
(a) with the consent of the other persons who have the same interest; or
(b) as directed by the court on an application made by a party or intending party to
the proceeding. 99
5.53 This provision hails from chancery rules codified in reforms to the English
judicial system in the 19th century. It is comparable to the rule contained in Order
18 Rule 12 of the Rules of the Supreme Court 1971 (WA). As with the Western
Australian rule, it is not equivalent to representative actions regimes in other common
law states. 100 However, courts confronted with representative proceedings may
compensate for the lack of detailed rules by making orders for case management. 101
5.54 According to the New Zealand Court of Appeal, a representative proceeding
may be commenced where each member of the class represented is alleged to have a
separate cause of action, provided that there is an interest shared in common by all
class members, and the action is for the benefit of other class members. Furthermore,
an order for a representative proceeding may not confer a right of action on a class
member which they could not have asserted in a separate proceeding, and may not
bar a defence which would have been available. 102
5.55 For these purposes, the ‘same interest’ is taken to mean ‘the same interest in
the proceeding, not necessarily the same cause of action nor an entitlement to have
or to share in the same relief’. 103 The court will also consider whether representative
proceedings would prevent a defendant raising a defence to some of the claims. 104
Opt-out proceedings and proceedings ordered by the court
5.56 Rule 4.24(a) has been compared to an opt-in class action regime. In the longrunning
Feltex litigation, the plaintiff sought orders for an opt-out representative
proceeding, but orders in opt-in form were granted instead. 105 The Court of Appeal did
not discuss whether opt-out proceedings could be ordered under Rule 4.24(a). 106
5.57 Rule 4.24(b) also provides for the court to direct that representative
proceedings be undertaken without the unanimous consent of class members.
However, the use of this power to facilitate representative proceedings in an
administrative law context was criticised in Attorney-General (NZ) v Refugee Council
of New Zealand. 107 In that case, Blanchard, Tipping and Anderson JJ stated that
the exercise of a discretionary power in specific cases should not be assessed on a
‘representative and global approach’, and representative proceedings were therefore
inappropriate. 108
99. Judicare Act 1908 (NZ) sch 2.
100. Saunders v Houghton [2009] NZCA 610 (‘The Feltex Case’), [12], [15] (Glazebrook, O’Regan & Baragwanath JJ).
101. Ibid [63].
102. Ibid [13].
103. Ibid [18].
104. Ibid [13].
105. Ibid [44]–[45].
106. Ibid [12].
107. [2003] 2 NZLR 577.
108. Ibid [31]–[32], [42] (Blanchard, Tipping & Anderson JJ); see also [107] (Glazebrook J).
Chapter 5: Overseas Models 71