WA poised to adopt its own class actions regime

This article was written by James Wang and Alexandra Pieniazek.

Western Australia is poised to adopt its own class actions regime, after the introduction of the Civil Procedure (Representative Proceedings) Bill 2019 (WA) into State Parliament on 26 June 2019 (Proposed WA Regime).  The Proposed WA Regime supplements the existing procedure under Order 18 Rule 12 of the Rules of the Supreme Court 1971 (WA) and is substantially modelled on Part IVA of the Federal Court of Australia Act 1976 (Cth) (Federal Regime), with some adjustments to reflect the recommendations made by the Law Reform Commission of Western Australia (LRCWA) in 2015 (previously discussed here).  The adoption of the Proposed WA Regime is undoubtedly a positive step in facilitating the conduct of class actions in Western Australia and could see more class action claims being commenced in the Supreme Court of Western Australia.

As the Proposed WA Regime is largely modelled on the Federal Regime, this section only provides a broad overview of the Proposed WA Regime, noting where it differs to the Federal Regime.

When can a class action be commenced?

Under both the Federal and Proposed WA Regimes (s.33C and s.6, respectively), a class action can be commenced where:

(a) 7 or more persons have the same claims against the same person; and

(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c) the claims of all those persons give rise to a substantial common issue of law or fact.

Who can bring a class action?  Who will form part of the group?

A person with sufficient interest to commence the proceeding on their own behalf against another person has sufficient interest to commence the proceeding against the other person as a representative proceeding on behalf of other group members (s.33D of the Federal Regime and s.7(1) of the Proposed WA Regime). 

The Proposed WA Regime, however, provides that not all represented plaintiffs must have a claim against each of the named defendants in the proceeding (s.7(2) of the Proposed WA Regime).  This is intended to avoid the effect of the decision in Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487, in which the Full Court of the Federal Court concluded that all represented plaintiffs must have a claim against each of the named defendants in the proceeding. 

When it comes to the group:

• Opt-out model:  like the Federal Regime, the Proposed WA Regime follows an "opt-out" model – express consent from persons is not required for them to be a group member in the class action (unless s.8(2) of the Proposed WA Regime applies) but the group member does have a right to opt-out of the class action (s.12 of the Proposed WA Regime). 

This is consistent with the LRCWA's recommendation that any WA regime should not follow s.166(2) of the NSW regime (set out in Part 10 of the Civil Procedure Act 2005 (NSW)) which endorses the use of closed classes (although in practical terms, the description of the group could "close" the class).

• Group description:  like s.33K of the Federal Regime, the Proposed WA Regime (s.13) provides the ability for the description of the group to be altered so as to include a person whose cause of action accrued after the commencement of the proceeding – the Explanatory Memorandum explains that this is to enable as many potential group members as possible to be included in order to avoid, so far as possible, the need for separate proceedings.
• Substituting group members:  under s.21(1) of the Proposed WA Regime, like s.33T of the Federal Regime, a Court may also substitute another group member as representative party or another person as sub-group representative party if it appears to the Court that the representative party is unable to adequately represent the interests of the group / sub-group members. 

Section 21(1) of the Proposed WA Regime differs slightly, however, insofar as the Court may also do so where it is in the "interests of justice".  According to the Explanatory Memorandum, this provides the Court with additional flexibility.

Where to from here?

A strong class actions regime is seen by many, not the least the WA State Government, to be an important move in support of access to justice.  Third party litigation funding remains a key ingredient in the ability of persons to enjoy the benefits of such a regime.  However, this issue has its own set of challenges and considerations in Western Australia where the torts of maintenance and champerty have not been expressly abolished, and is likely to require further legislative reform by the WA State Government.