眾律國際法律事務所

1.0 Introduction

When there are a large number of persons who all have the same interest, it is impractical and probably impossible for each to become an individual party to a proceeding and accordingly, a class action, known as representative proceeding (“RP”) may be a more practical option.[1] As a representative party, one party may, whether as a plaintiff or defendant, represent other persons who have the same interest when the class is too large for each person to be an individual party.

2.0 Representative Rule in Australia

Apart from the statutory class action regimes applicable in the Federal Court and in the Victorian Supreme Court, the rules of court in most Australian jurisdictions make provisions for representative actions themselves. In some cases, such representative action rules may be more appropriate than the statutory class action provisions. In some other cases, it may be more appropriate to rely on both the representative rule and the applicable class action statutory provisions. The representative action rule in the High Court is r 21.09 of the High Court Rules 2004 (Cth),[2] which is similar to the earlier English representative action rule and the representative actions rule in most other Australian jurisdictions.[3] The representative action rule in the Federal Court however is incorporated in O 6 r 13 of the Federal Court Rules[4] which operates concurrently with the provision of Pt IVA of the Federal Court of Australia Act 1976 (Cth).[5] The provisions of Pt IVA make it clear that, except as otherwise provided by such provisions, nothing in Pt IVA affects the commencement or continuance of any action of a representative character commenced otherwise than under pt IVA[6] or the court’s power under provisions other than Pt IVA[7] or the operation of any law relating to proceedings of a representative character.[8]

Since 1 July 1999, the Uniform Civil Procedure Rules (“UCPR”) have applied to all civil proceedings in the Supreme Court, District Court and Magistrates Courts of Queensland.[9] The Queensland representative procedure rule 75[10] operates at two levels: a jurisdictional level and a discretionary level. Before the representative action may be commenced, the parties represented must have the “same interest”. If such criterion is satisfied, there is jurisdiction to commence a proceeding as a RP. However, even if a proceeding is properly commenced as the RP, the court arguably under rule 62[11] can give discretion to include parties whose presence is necessary to enable an adjudication of all issues raised in the proceeding.[12]

In Minister for Industrial Development of Queensland v Taubenfeld,[13] Mackenzie J contrasted the position under r75[14] with the previous rules in the Supreme Court[15] that “when there were a numerous persons having the same interest in the subject matter of a proceeding…on a proper construction of UCPR 75 and 76,[16] I do not think that approval of the court for appointment of a representative defendant is now required.”[17] Standing alone would permit proceedings to be started and continued against one or more of the persons who have the same interest in the subject matter of the proceeding as all such persons who could have been parties to the proceeding. His Honour in Taubenfeld[18] submitted that the authority of court should still be obtained to sue the representative person however on a proper construction of UCPR r75 and 76,[19] the approval of the court for appointment of a representative defendant was not now required. This is because UCPR r75[20] follows the wording of s82 of the Supreme Court Act[21] for which does not refer to leave being required for having a representative defendant appointed. As His Honour proceeded to observe that if an issue is raised as to the appropriateness of having a representative defendant at all, or whether a particular person selected by an applicant to be a representative defendant is an appropriate person having regard to the relevant criteria, it would be convenient to resolve that issue at the earliest possible opportunity.[22]