In February 2013, the Law Reform Commission of Western Australia (Commission) released a discussion paper commenting on whether, and if so in what manner, the principles, practices and procedures pertaining to representative proceedings in Western Australia require reform.

Among other things, the Commission considered the current representative proceedings regime in Western Australia, representative proceedings regimes in other Australian jurisdictions and the need for (and suggested shape of) reform in Western Australia. Ultimately, the Commission’s primary aim is to propose reform that will improve the perception of Western Australia as a jurisdiction in which to commence representative proceedings, and to minimise forum shopping.

The Current Regime in Western Australia

Representative proceedings in Western Australia are currently governed by the rules of court.  The procedural framework is found in Order 18 Rule 12 of the Rules of the Supreme Court 1971 (WA).

Order 18 Rule 12 provides that a proceeding is only properly begun as a representative proceeding where ‘numerous persons’ have the ‘same interest’ in a proceeding.  The uncertainty created by a lack of case law interpreting these key phrases discourages potential litigants from commencing action in Western Australia. This is particularly the case when viewed in comparison to the prescriptive regimes of other jurisdictions.1

The Commission has taken the view that the current rule relating to representative proceedings in Western Australia is unsatisfactory and requires reform.

The Commission submits that any reform to the procedure of representative proceedings should be undertaken by way of legislative amendment and the creation of a procedure similar to that found in Part IVA of the Federal Court of Australia Act 1976 (Cth) (Federal Regime).  Nonetheless, the Commission submits that Order 18 Rule 12 be retained in its current form as a surviving alternative.

The View of the Law Society of Western Australia

In May 2013, the Law Society of Western Australia (Law Society) responded to the Commission’s Discussion Paper.  The Law Society submitted that:

  1. Western Australia should adopt a legislative framework substantially similar to the Federal Regime;
  2. a provision should be included to specifically deal with limitation periods, and to clarify that for parties that are excluded or removed from a class, or where a class is disbanded, the limitation period will continue to run (a matter that the Law Society does not consider to be adequately provided for in the Federal Regime);
  3. a provision similar to s 158(2) of the Civil Procedure Act 2005 (NSW) should be incorporated into the legislation to expressly allow claimants to issue a representative action against multiple defendants, irrespective of whether the persons affected have a claim against every defendant in the action;
  4. Order 18 Rule 12 of the Rules of the Supreme Court 1971 (WA) should be retained as an alternative; and
  5. in conjunction with legislative reform of the representative proceedings regime, the tort of maintenance and champerty should be abolished in Western Australia, so as to:
  1. allay fears of litigation funders with regards to any uncertainty as to whether a representative proceeding will be stayed for an abuse of process; and
  2. improve the attractiveness of Western Australia for representative proceedings and end the practice of forum shopping.

Conclusion

Unless the Commission receives compelling submissions to the contrary, the tone of the Commission’s discussion paper coupled with the resounding support from the Law Society suggests that it is highly likely the Commission will recommend the reform of the Western Australian representative proceedings regime.  In that regard, the Commission and the Law Society favour the enactment of a legislative regime that is substantially similar to the Federal Regime.

Alastair McLachlan