WA Bill To Introduce New Representative Proceedings Scheme

Tuesday 2 July 2019 @ 11.59 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 26 June 2019, the Attorney-General of Western Australia, John Quigley, introduced the Civil Procedure (Representative Proceedings) Bill 2019 (WA) (‘the Bill’) to the Legislative Assembly. The Bill was introduced following the recommendations of the Representative Proceedings: Project 103 – Final Report (‘the Report’), tabled by the Law Reform Commission of Western Australia (‘the Commission’) on 21 October 2015.

The Report and Part IVA

In July 2011, then Attorney-General Christian Porter directed the Commission to investigate and report on representative proceedings within Western Australia. In particular, the Commission was to investigate the need for such a framework and if adoption of a model would be appropriate following developments regarding representative proceedings in other jurisdictions. To this effect, the Commission was also to address the need for clarity and the appropriate scope of representative proceedings to ensure that it would continue to be conducted in a fair manner.

A representative proceeding in the Supreme Court of Western Australia is defined in Order 18, rule 12(1) of the Rules of the Supreme Court 1971 (WA) (‘the Rules’):

“Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13 [pertaining to representation of interested persons who cannot be ascertained], 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.”

The Commission released its final report in late 2015 and found that Order 18, rule 12 of the Rules was inadequate to facilitate large representative actions in Western Australia, and lacked clarity for those who did wish to bring a class action to the Court. The Commission recommended that a new legislative scheme be introduced in order to allow for more efficiency in the realm of representative actions. The aim of the scheme would be to assist in reducing interlocutory disputes, lower costs and alleviate procedural barriers. They recommended that the legislative scheme be based on Part IVA of the Federal Court of Australia Act 1976 (CTH) (‘the Federal Court Act’) and to include various provisions from the Civil Procedure Act 2005 (NSW).

Since 1992, Part IVA of the Federal Court Act has provided for a legislative regime under which representative proceedings could be commenced in the Federal Court. It sets out the requirements and tests in which a class action is to be brought before the Federal Court. Since its implementation similar schemes have been adopted in Victoria, New South Wales and Queensland.

Justice Murphy commented in a keynote seminar:

“It is important to remember that, before the class action regime [in Part IVA of the Federal Court Act] was introduced, it was either impossible, or at least exceedingly rare, for consumers, cartel victims, shareholders, investors and the victims of catastrophe to recover compensation, even where the misconduct was plain. Since 1992 the regime has permitted claimants to recover more than $3.5 billion in compensation for civil wrongs they have suffered.”

The Bill

The Bill will provide for a new representative proceedings scheme, that implements a clearer set of processes in order to govern the commencement and conduct of class actions in Western Australia, to ensure fairness and efficiency in the system. The Bill will provide provisions for:

The minimum threshold requirements in commence representative proceedings
The right to opt out or formally discontinue from the proceedings
Settlement of individual claims
Discontinuance of proceedings
Distribution of payments

The Bill has been modelled on Part IVA of the Federal Court Act; however, there are some notable differences. Firstly, the Courts will have additional powers to remove and substitute a representative party where it is in the interests of justice to do so. Secondly, the definition of representative party is expanded from only covering an individual who commences representative proceedings, to include an individual who has been substituted as a representative party. The expansion of this definition reduces the risk of possible challenges to the legitimacy of a substituted party. Finally, the Bill will allow for representative action to be taken against multiple defendants, regardless of whether each individual in the action has a claim against every defendant.

Attorney-General John Quigley commented in a media release:

“Class actions, at its heart, is an access to justice issue … there are situations where a legal wrong has been committed which affects many people, but each person’s individual loss is not such as to make it economically viable to bring an individual action. Without a strong and sustainable mechanism for bringing class actions, countless individuals will not see justice and their losses will go uncompensated.”

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