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Class Actions

In Australia, class actions (or representative proceedings as they are formally known) can be commenced by a representative applicant in circumstances where seven or more people have claims which arise out of the same or related circumstances that give rise to a substantial issue of fact or law.

The person who commences a class action is required to describe the class of persons who are being represented. Once the class is described, every person in that class is assumed to be part of the class unless they decide to 'opt-out' of the action by filing a notice with the court in a specified form. The representative applicant does not need the consent of the class members and does not even need to know who they are or where they live. (This in comparison to the US procedure which is 'opt-in'.)

In many respects the Australian class action procedure is more 'plaintiff friendly' than in the US. This is because in Australia:
there is no certification requirement (ie, a requirement to satisfy the court that the proceedings meet the requirements for a class action before it proceeds);
*there is no need to show that the common issues predominate over individual issues - it is enough that there be one common issue which is 'real or of substance'; and
*the courts have the power to manage the litigation by splitting the class into sub-groups to deal with discrete issues. This gives the Australian courts a wide discretion to deal with a group of claims as a class action.In 1992, the Federal Court of Australia Act 1976 (Cth) (the Act) was amended to include Part IVA to allow class actions to be brought in the Federal Court. 

Victoria also introduced a class action scheme which is essentially identical to the Federal Court scheme and is under Part 4A of theSupreme Court Act 1986 (Vic).

In other States and the Territories, there are representative procedures available but they are not, strictly speaking, 'class actions'. They involve 'same interest' procedures which traditionally have been narrowly interpreted but cases such as the High Court's decision in Carnie v Esanda Finance have broadened their scope.

Since the introduction of these provisions, class actions have become a regular feature of Australian litigation [Minter Ellison – Lawyers]

Victor Ainslie,
May 4, 2011, 11:32 PM
Victor Ainslie,
Apr 30, 2011, 8:18 PM