Discussion Paper - Law Reform Commission of Western Australia

5.70 There is no restriction on the remedies that can be sought in United
States class actions. However, the desired remedy may dictate the appropriate
Rule 23(b) category and the relevant certification requirements:
Rule 23(b)(1)
This category is in fact divided into two further categories.
(a) ‘Incompatible standards’ class action
This class action category seeks to avoid holding defendants to incompatible
standards in multiple proceedings. It permits certification of a class action where
‘prosecuting separate actions by or against individual class members would create a
risk of inconsistent or varying adjudications with respect to individual class members
that would establish incompatible standards of conduct for the party opposing the
class’. 138
(b)
‘Limited fund’ class action
In this category a class may be certified where ‘prosecuting separate actions by or
against individual class members would create a risk of adjudications [that] as a
practical matter, would be dispositive of the interests of the other members not parties
to the individual adjudications or would substantially impair or impede their ability to
protect their interests’. 139 In other words, this type of class action may be appropriate
where early individual claims are likely to exhaust a defendant’s funds.
Rule 23(b)(2): ‘Injunctive’ class action
In this category class actions may be brought where ‘the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the
class as a whole’. In essence, the class action must be necessary to pursue injunctive
or declarative relief for the class as a whole. This category is generally not used where
damages are being sought.
Rule 23(b)(3)
This is the most general and commonly used form of class action that permits class
members to seek damages. Under r 23(b)(3) class actions can be certified where:
(a) the ‘questions of law or fact common to class members predominate over any
questions affecting only individual members’; and
(b) a class action is ‘superior to other available methods for fairly and efficiently
adjudicating the controversy’.
5.71 The rule provides specific guidance as to how courts can make these findings.
Matters that may be pertinent include:
(a)
The class members’ interests in individually controlling the prosecution or
defence of separate actions. The focus here is on whether the majority of class
members wish to maintain separate actions. If there are only a small number
138. Emphasis added.
139. Emphasis added.
Chapter 5: Overseas Models 75