The WA Parliament has passed the Civil Procedure (Representative Proceedings) Bill 2021 (2021 Bill), which introduces a legislative representative proceedings regime in the Supreme Court of Western Australia (WA Regime).
On 1 September 2022, the 2021 Bill passed through the WA Legislative Council and is now awaiting assent. The WA State Government considers that this regime will enhance access to justice for more people in Western Australia.
In most respects the 2021 Bill is like the Civil Procedure (Representative Proceedings) Bill 2019 (2019 Bill). The main difference is that the 2021 Bill also abolishes the torts of maintenance and champerty.
The WA Regime is modelled on Part IVA of the Federal Court of Australia Act 1976 (Cth) (Federal Regime). However, it has some significant differences to reflect the recommendations made by the Law Reform Commission of Western Australia in 2015. We explored these differences in detail in our analysis of the 2019 Bill here.
Below we consider:
- the key features of the WA regime
- the rationale for abolishing the torts of maintenance and champerty, and
- matters to be addressed by the WA courts.
Key features of the WA Regime
As the WA Regime is largely modelled on the Federal Regime, this section only highlights where it differs to the Federal Regime. The WA Regime:
- allows the court to remove and substitute a representative party if it is in the interests of justice to do so. This is broader than s.33T of Part IVA of the Federal Court of Australia Act (1976) (Cth) and provides the court with additional flexibility
- includes a broad definition of “representative party”. The definition expressly includes a person who is substituted as a representative. It is not limited to a person who commences a proceeding. This reduces the risk of possible challenges to the legitimacy of a substituted representative party
- expressly permits a representative action to be commenced against multiple respondents, regardless of whether each person to the representative action has a claim against every respondent. This addresses the issue in Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487, where the Full Court of the Federal Court held that all represented plaintiffs must have a claim against each of the named respondents. At a practical level, this encourages efficient resolution of claims and avoids the need for multiple actions arising out of the same circumstances, and
- mandates a review of the operation and effectiveness of new legislative regime following its fifth anniversary.
The 2021 Bill has also benefited from adopting plain English drafting principles to enhance its readability.
Other features of the WA Regime are considered in detail in our analysis of the 2019 Bill here.
Abolishment of the torts of maintenance and champerty.
Third party litigation funding is a key feature to providing plaintiffs access to the benefits of a class action regime. However, under the torts of maintenance and champerty the contracts giving effect to those services may be found to be void and/or illegal. These torts pose a potential deterrent to litigation funders and therefore a barrier to access to justice.
To address this, the 2021 Bill abolishes the torts of maintenance and champerty in Western Australia, whilst preserving the rule of law as to the circumstances in which a contract is to be treated as contrary to public policy or as otherwise illegal. This was the first recommendation of the Law Reform Commission of Western Australia’s Maintenance and champerty in Western Australia: Project 110: Final report dated February 2020.
Other jurisdictions had earlier abolished the torts of maintenance and champerty. These include Australian Capital Territory, New South Wales, South Australia and Victoria, as well as England and Wales.
Matters to be addressed by the WA courts
The Law Reform Commission’s Maintenance and champerty in Western Australia: Project 110: Final report made recommendations to mitigate the impacts of the abolition (see recommendations 2 and 3).
We understand that that following the passage of the 2021 Bill, the WA Government will write to the WA Supreme Court recommending it consider:
- implementing a requirement that litigation funding agreements be disclosed to the Supreme Court and other parties to representative proceedings in similar terms to paragraph [6] of the Federal Court of Australia’s Class Actions Practice Note
- implementing notification requirements for representative proceedings in similar terms to paragraphs 5.3 to 5.5 of the Federal Court of Australia’s Class Actions Practice Note, and
- providing guidance for the appointment of an independent costs expert by the Supreme Court to assist in the assessment of legal costs.
The WA Government will also write to the heads of all WA courts requesting they consider amending court rules to require a plaintiff’s lawyers to provide a court with a copy of the litigation funding agreement whenever a litigation funder is involved in a proceeding where a number of disputants are represented by an intermediary.
While the WA Regime does not expressly address security for costs, under order 25 of the Rules of the Supreme Court 1971, the Court will be able to use its discretion to make an order for security where the circumstances require it.
