The Civil Procedure (Representative Proceedings) Act 2022 (WA) ("Act") was enacted in September 2022, establishing a class action regime in Western Australia in a form substantially similar to the existing Federal Court of Australia regime, which is set out in Part IVA of the Federal Court of Australia Act 1976 (Cth). Commencement of the Act was delayed to allow time for the Supreme Court of Western Australia to establish rules and practice directions to accommodate the new regime.
Amendments to the Rules of the Supreme Court 1971 (WA) were made in early March 2023, and the Consolidated Practice Directions issued by the court were amended in late March 2023, paving the way for the commencement of the Act and the modernisation of Western Australia's class actions regime. The rule changes and new practice directions include familiar features also found in the Federal Court's regime, including requirements for the disclosure of funding agreements to the court and other parties, the provision of opt-out and other notices to group members, requirements to notify the court of competing class actions, and the procedure for seeking court approval of settlements. Importantly, like the Federal Court, the Western Australian regime does not provide for the charging of contingency fees by plaintiff lawyers (unlike Victoria, which introduced a contingency fee regime in 2020).
The court has also established a Representative Proceedings List to manage class action proceedings, which in addition to its own processes in the early stages of the proceeding, will adopt the streamlined case management processes of the court's Commercial and Managed Cases List.
This is a significant development because the new regime provides class action plaintiffs with an additional forum for filings (being the Supreme Court, in addition to the Federal Court) and enables class actions to be pursued in Western Australia for State-based claims and causes of action, such as the tort of negligence. We will continue to monitor and report on the impact of the new regime.
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