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Australia – Reforms To Representative Proceedings In Western Australia.

11 September, 2013

 

Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution

 

Background

 

Representative or group proceedings regimes exist in Australia in the form of Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCAA), Part 4A of the Supreme Court Act 1986 (Vic) and Part 10 of the Civil Procedure Act 2005 (NSW). These regimes have been established by the passage of legislation.

 

Western Australia retains a largely unused Court Rules based representative action regime provided for under the Rules of the Supreme Court 1971 (WA).

 

In February 2013, the Law Reform Commission of Western Australia (Commission) released a discussion paper addressing whether representative proceedings procedures in WA require reform. 

 

The current regime under Order 18 Rule 12 of the Rules of the Supreme Court 1971(WA) (SCR) provides for representative proceedings to be commenced where numerous persons have the ‘same interest in any proceedings’. This process has been rarely utilised because of the difficulty of demonstrating that the represented parties in fact have the ‘same interest’ in the proceeding. 

 

Commission’s Recommendations

 

The Commission has concluded in its discussion paper that the rules relating to representative proceedings in WA are inadequate and require amendment. The Commission recommended that:

 

  1. reform to representative proceedings should be undertaken by way of legislative amendment,
  2. the process adopted should be consistent with Part IVA of the FCAA, and
  3. Order 18 Rule 12 of the SCR should also be retained in its current form as a surviving alternative to any legislative reform.

 

View of the Law Society of WA and Law Council of Australia

 

At the end of May 2013, the Law Society of WA released its response to the Commission’s discussion paper. In summary, the Law Society of WA proposed that:

 

  1. Western Australia adopt a representative action process in substantially similar terms to Part IVA of the FCAA,
  2. Order 18 Rule 12 of the SCR should be retained as an alternative,
  3. a provision based on s 158(2) of the Civil Procedure Act 2005 (NSW) should be included in the legislation to provide express permission to issue a representative action against multiple defendants, irrespective of whether or not the persons affected have a claim against every defendant in the action,
  4. a provision be included in the legislation to provide that the relevant limitation period will cease to be suspended and will continue to run for parties that are excluded or removed from the class or in situations where the class is disbanded, and
  5. at the same time as passing legislation to introduce representative proceedings regime based on the FCAA, WA should abolish the tort of maintenance and champerty to ensure that it is on an equal footing with other States.

 

In June 2013, the Law Council of Australia released its response to the Commission’s discussion paper. In summary, the Law Council of Australia endorsed WA adopting a representative action regime in substantially similar terms to Part IVA of the FCAA.

 

Likely next steps

 

Given the Commission’s paper and the support of the Law Society of WA and Law Council of Australia for change, it appears likely that the Commission will recommend legislative change to reform representative proceedings in WA as set out above.

 

 

 

For further information, please contact: 

 

Damian Grave, Partner, Herbert Smith Freehills
damian.grave@hsf.com

 

Jason Betts, Partner, Herbert Smith Freehills
jason.betts@hsf.com     

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