眾律國際法律事務所

It is often the case that representative proceedings (“RP”) are challenged by respondents, including on the ground that the threshold requirements are not satisfied amongst others. There are some criteria that the Queensland representative action rule would appear to be of limited utility in many instances particularly where the claims for relief include damages.[1] For the identity of interest, Queensland has not yet considered the UCPR requirement into its judicial consideration but may be receptive of a wide or narrow interpretation.  In r75 of the UCPR,[2] courts have tended to adopt a narrow interpretation of the ‘same interest’ requirement and often concluded that this precludes bringing representative claim for damages. Furthermore, other representative action rules often provide that the proceeding may be brought on behalf of ‘some or all’ of those with the same interest[3] whereas the Queensland rule does not expressly provide for a limited number of class numbers. In the past, various groups have made submissions advocating for establishing of a legislative regime in Queensland to correct some of the RP shortcomings.[4] There appears to be some perceived problems with the representative action procedure incorporated in court rules which led to various proposals in Australia for which a statutory class action regime that were said to be ‘bedeviled…by defeats and uncertainties’.[5] Concerns remain about lack of certainty for litigants when there is an absence of a clear framework for brining and management of RP in Queensland especially where there is a lack of protection of statute of limitations provisions; absence of consent of represented persons to the initiation of litigation given that judgment will be binding on all members of a represented class; the risk of an adverse costs order being borne solely by the representative of a represented class with the need to examine whether separate damages claims are likely to split the proceeding[6] It can be concluded that Queensland law and practice has failed to keep up with national and international developments. Procedural reform must be introduced to facilitate the representative procedure into Queensland courts.

3.0 Reform of the Queensland RP rule

There are obvious advantages of a structured, court-managed class action regime as contained in Part IVA Federal Court Act over the Queensland scheme in Chapter 3 Division 4 UCPR, namely, that it is:

• Cheaper for all parties;
• Fairer for defendant who has to defend one action rather than many;
• Fairer for the plaintiffs who can resolve common issues;
• Fairer for the community in that it benefits a broad range of people; and
• Have clear rules for all potential litigants to follow.

While it appears that the Queensland rules can be used for RP, the rules do not facilitate management of the RP by the court or make RP requirements or procedures clear for potential litigants and the public at large. The first requirement of an identical interest may be contrasted with other Australian jurisdictions for which the federal and Victorian court provisions do not require identify of interest but that the parties claims arise out of the interest which is similar or related circumstances that gives a greater scope for claims to be prosecuted within one representative action.[7] In addition, the Queensland courts have adopted a narrow construction of the ‘same interest’ requirement and have subsequently concluded that this precludes bringing representative claims for damages. One of the difficulties Queensland faced was when claimants come up with cause of actions arising under the common law, or based on State statutory provisions, is that the representative procedure in the Federal Court require there to be at least one federal cause of action. Attempts to join common law claims with a federal cause of action may be a recipe for disaster for both litigants and lawyers.[8] In relation to the Queensland floods in 2011 for example, there has been media and press coverage of a long foreshadowed class action against the State of Queensland claiming damages for the affected victims. Question arises as to whether a NSW resident who has suffered property loss in Queensland could lead a RP in the NSW Supreme Court under Part 10 of the Civil Procedure Act 2005 (NSW).[9] To raise such RP might be problematic as there is no federal cause of action available with any applicable class action procedure in Queensland.