By Ante Golem and Libby Plajzer
In October 2015, the Law Reform Commission of Western Australia released its Final Report on Representative Proceedings (the Report). The Report made seven recommendations for reform, including that Western Australia enact legislation to create a regime for ‘representative actions’ based on Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA).
On 28 October 2021, the Legislative Assembly of Western Australia passed the Civil Procedure (Representative Proceedings) Bill 2021 (WA) (the Bill). The Bill is currently before Western Australia’s Legislative Council. If passed, the Bill will provide a legislative representative proceedings regime in the Supreme Court of Western Australia (the Court).
Whilst modelled on Part IVA of the FCA, the Bill includes the following notable differences:
- the Bill expressly provides that, where a representative proceeding is commenced against more than one respondent, the representative party and each group member need not have a claim against every respondent;
- the Bill limits the Court’s power to direct that a representative proceeding no longer continue or be stayed in circumstances where costs would be excessive to the respondent in identifying and distributing money to group members were judgment given in favour of the representative party only to claims which are (or include) monetary relief; and
- the Bill includes an additional power whereby the Court may remove a representative party where it is in the ‘interests of justice to do so’.
If passed, the new regime will apply to all representative proceedings initiated after the date of commencement, including those concerning a cause of action arising prior to the commencement date (subject to applicable limitation periods). This specific provision appears to reflect the practical reality that, if passed, the Court’s rules and practice directions will likely require supplementation to support the provisions currently contained in the Bill.
The Bill marks an important step in terms of aligning Western Australia’s Supreme Court with the representative proceeding regime in the Federal Court, as well as the state regimes in New South Wales, Victoria, Queensland and Tasmania. Given the experience in other states, we expect to see an increase in class actions in Western Australian once the Bill has been passed.