Discussion Paper - Law Reform Commission of Western Australia

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Contents Introduction 3 Terms of Reference 3 The Issue in Brief 3 Representative proceedings in Western Australia 3 Representative proceedings in other jurisdictions 5 Is There a Need for Reform in Western Australia 6 The Commission’s view 8 Terminology 9 About this Discussion Paper 10 Submissions 10 2 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper
Introduction Terms of Reference 1.1 In July 2011, then Attorney-General Christian Porter MLA directed the Law Reform Commission of Western Australia (‘the Commission’) to ‘examine and report upon whether, and if so in what manner, the principles, practices and procedures pertaining to representative proceedings require reform’. 1.2 In particular, the Commission was requested to give close consideration to the following factors in relation to such an examination: (i) (ii) (iii) (iv) (v) the need for a detailed guiding framework for the manner in which representative proceedings are to be conducted or concluded; the need to reduce the uncertainty and lack of clarity in the area; the adoption of an appropriate and effective model, either through amendment to the Supreme Court Rules or statutory reform, taking into account recent developments regarding representative proceedings in other jurisdictions both nationally and internationally; the need to ensure that representative proceedings are conducted in a fair manner which give those who will be bound by orders made in the proceedings a reasonable opportunity to decide whether or not to participate in the proceedings and to be heard in relation to issues affecting their rights; and any related matter. The Issue in Brief Representative proceedings in Western Australia 1.3 The terms of reference set out above relate specifically to the existing framework within which representative proceedings operate in Western Australia. The framework is contained in Order 18 Rule 12 of the Rules of the Supreme Court 1971 (WA) (‘the RSC’), which provides: 12. Representative proceedings (1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in Rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. (2) At any stage of proceedings under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued, to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this subrule, the Court appoints a person not named as a defendant, it shall make an order under Rule 6 adding that person as a defendant. Introduction 3
Page 1 and 2: Representative Proceedings Discussi
Page 3 and 4: Contents Acknowledgements v Chapter
Page 5 and 6: Acknowledgements AUTHOR: Tim Hammon
Page 7: Chapter 1 Introduction 1
Page 11 and 12: 1.8 In Esanda Finance Corporation L
Page 13 and 14: is to consider the numbers of repre
Page 15 and 16: cartel actions (enforcing competiti
Page 17 and 18: Chapter 2 Representative Proceeding
Page 19 and 20: Representative proceedings in Weste
Page 21 and 22: plaintiffs, who sought to register
Page 23 and 24: 2.20 As well as the deficiencies id
Page 25 and 26: 2.25 After reviewing the authoritie
Page 27 and 28: Chapter 3 Representative Proceeding
Page 29 and 30: Introduction 3.1 The terms of refer
Page 31 and 32: 3.6 Sections 34 and 35 were introdu
Page 33 and 34: Part 10 of the New South Wales legi
Page 35 and 36: 3.27 While s 33T of the Federal Cou
Page 37 and 38: (e) Guiglielmin v Trescowthick (No
Page 39 and 40: ordered to provide security for cos
Page 41 and 42: Traditional proceedings Queensland
Page 43 and 44: could have been party to proceeding
Page 45 and 46: of the Supreme Court Rules in 1987.
Page 47 and 48: Chapter 4 Comparison of Models 41
Page 49 and 50: Comparison of legislative rules-bas
Page 51 and 52: (c) unless the court otherwise orde
Page 53 and 54: The question whether the claims of
Page 55 and 56: (Cth)’. 23 Ultimately, the ‘opt
Page 57 and 58: 4.43 The relevant legislative provi
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Interlocutory disputes party may de
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for reasons as expressed in relatio
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Chapter 5 Overseas Models 57
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United States of America 74 The cur
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Group litigation regime Current fra
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Consistency with the overriding obj
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5.25 One well known but ultimately
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5.35 Thirdly, there are a number of
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Settlement and remedies 5.43 Action
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NEW ZEALAND 5.52 Rule 4.24 of the H
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(c) (d) 5.62 Courts to receive addi
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5.70 There is no restriction on the
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Commonality requirement Typicality
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5.84 Although it is not expressly s
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Case examples to assess the impact
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protects absent class members and t
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Features of the regime Commencement
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Summary 5.123 What can we draw from
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Chapter 6 Proposed Reform 89
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The shape of reform 6.1 The Commiss
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A prudent approach 6.9 Notwithstand
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in attempting to embrace the proced
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Proposal for a legislative scheme i
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Appendices 99
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Appendix 1: Representative proceedi
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33H Originating process (1) An appl
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(a) (b) the proceeding may be conti
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Division 4—Judgment etc. (3) If t
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(4) The Court may allow a group mem
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(i) (ii) vexatious litigants (howev
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(c) the claims of all those persons
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33K Causes of action accruing after
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(3) If the Court appoints a person
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Division 4—Judgment, etc. (4) The
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Division 6—Miscellaneous common t
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Civil Procedure Act 2005 (NSW) Part
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160 Persons under legal incapacity
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(a) the costs that would be incurre
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Division 3—Notices 174 Settlement
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(3) Subject to section 173, the Cou
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182 Suspension of limitation period
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Appendix 2: Representative action p
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9.33 Person may give consent to be
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(b) (c) define the nature of the cl
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(a) (b) damages which would require
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(4A) If it appears to the court tha
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Tasmania Supreme Court Rules 2000 (
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266 Representation—numerous concu
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Appendix 3: Stakeholders consulted
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Discussion Paper - Law Reform Commission of Western Australia

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