眾律國際法律事務所

Generally, the representative persons or entities not party to the RP will not be liable for costs for which the liability for costs will fall on to the representative parties,[1] despite such judgment cannot be enforced against those unnamed persons or entities except by leave of the court.[2]  The unnamed persons or entities in a RP do not need to consent to the institution of proceedings on their behalf.[3] A person may start a proceeding and represent all of the persons who have the same interest[4] and to bring such an action even when some of the representative parties knew nothing of the action.[5] Furthermore, a judgment in a RP must describe or at least to identify the class group members who will be affected by such RP. Unless the court order, the RP would bind all parties who have the same interest as a representative party[6] and to adopt Federal Court’s RP rule for which persons in such Federal Court proceedings have a freedom of choice to ‘opt out’ by not being one of the parties in the proceeding.[7]

Despite that, the Queensland jurisdiction has its inherent jurisdiction to award costs against non-parties, which being defined broadly in the UCPR (Qld) to include persons not party to proceedings by or to whom costs are payable.[8] In some jurisdictions, RP are governed by detailed legislative schemes, which govern how members of the class can ‘opt in’ or ‘opt out’, and to communicate in proceedings. Rule 76 of the UCPR (QLD)[9] however contains no such framework. In the case of Carnie,[10] it was argued that the absence of such a legislative scheme would lead the court to give a very narrow operation to such the case in Esanda.[11] Gleeson CJ mentioned that the absence of a detailed legislative prescription would need to deal with matters such as whether or not consent is required from group members, right of such members to opt out of the proceedings; the position of person under disability, alternations to the description of the group, settlement and discontinuance of the proceeding and to give various notices to group members.[12] In the United States, Federal Rule of Civil Procedure 23(a)(4)[13] imposes one of the conditions to commence a class action that all the representative parties will be fairly and adequately protect the interests of the class for which it is fundamental in the RP where all group members are bound by the outcome of litigation but are not before the Court to be able to protect their own interests that their representative will loyally advance their interest. This need for adequacy of representation has been recognised by High Court in Carnie.[14] Therefore in order to promote a fairer RP in Queensland, it should adopt its Federal Court’s ‘opt out’ system for which allows any persons who do not wish to be part of the proceeding or proceed further with their claims to ‘opt out’.[15] In addition such scheme must also be more clearly spells out the requirements for all parties by notifying represented persons and resolution of problems associated with intermingling of issues that would reduce some problems experienced federally.

4.0 Conclusion

Queensland law and practice has failed to keep up with national and international developments. Procedural reform should be introduced to facilitate class actions in Queensland courts, on behalf of Queensland persons and conducted by Queensland practitioners.

It is recommended that the UCPR be amended to introduce an active class action regime in Queensland, similar to the approach of the Federal Court of Australia that gives greater scope to the court to administer and manage a class action. Such a regime would give greater certainty to potential litigants in a class action as to the requirements for instituting, continuing and defending such proceedings.