Representative or the Same? Representative rule and class actions in Queensland and Western Australia

Bartlett, Francesca and Corrin, Jennifer Clare (2016) Representative or the Same? Representative rule and class actions in Queensland and Western Australia. Civil Justice Quarterly, 35 1: 41-60.

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Author Bartlett, Francesca
Corrin, Jennifer Clare
Title Representative or the Same? Representative rule and class actions in Queensland and Western Australia
Journal name Civil Justice Quarterly   Check publisher's open access policy
ISSN 0261-9261
Publication date 2016
Year available 2016
Sub-type Article (original research)
Open Access Status Not Open Access
Volume 35
Issue 1
Start page 41
End page 60
Total pages 20
Place of publication Andover, United Kingdom
Publisher Sweet & Maxwell
Collection year 2017
Language eng
Formatted abstract
Representative actions are available in all Australia jurisdictions, but the civil procedure governing them differs considerably. The process varies from a light touch, which simply allows a “representative” to conduct the case, to complex and detailed provisionssetting out each step of commencing,running and resolving the proceedings. This article compares the differing procedural approaches to defining classes and to regulating members’ relationship with the conduct of the case in Australia. In the two States that have minimalistic common law rules, few representative actions have been commenced. Yet our reading of this handful of cases indicates that judges apply a broad construction of the “same interest” test, possibly indicating the influence of otherjurisdictions. Nevertheless, we speculate that forreasons of certainty and convenience, plaintiff lawyers are forum shopping in Australia; choosing a jurisdiction with detailed legislative representative provisions. We examine a recent case that we believe provides an example of this election. From this we conclude that the structural and symbolic advantages of detailed procedural rules, as well as the continuance of the common law tort of maintenance, make these the most desirable and practicable regimes for bringing representative actions. 
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: HERDC Pre-Audit
TC Beirne School of Law Publications
 
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Created: Fri, 15 Apr 2016, 12:59:15 EST by Carmen Buttery on behalf of T.C. Beirne School of Law