Federal Court of Australia Act 1991 No. 181 of 1991 - Sect 3
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- Category: Legislation and Acts
- Created: Thursday, 20 May 2010 01:50
- Written by Alecomm
3. After Part IV of the Principal Act the following Part is inserted:
"PART IVA - REPRESENTATIVE PROCEEDINGS
"Division 1 - Preliminary Interpretation
"33A. In this Part, unless the contrary intention appears: `group member'
means a member of a group of persons on whose behalf a representative
proceeding has been commenced; `representative party' means a person who
commences a representative proceeding; `representative proceeding' means a
proceeding commenced under section 33C; `respondent' means a person against
whom relief is sought in a representative proceeding; `sub-group member' means
a person included in a sub-group established under section 33Q; `sub-group
representative party' means a person appointed to be a sub-group
representative party under section 33Q. Application
"33B. A proceeding may only be brought under this Part in respect of a cause
of action arising after the commencement of the Federal Court of Australia
Amendment Act 1991.
"Division 2 - Commencement of representative proceeding
Commencement of proceeding
"33C.(1) Subject to this Part, where:
(a) 7 or more persons have claims against the same person; and
(b) the claims of all those persons are in respect of, or arise out of,
the same, similar or related circumstances; and
(c) the claims of all those persons give rise to a substantial common
issue of law or fact; a proceeding may be commenced by one or more of
those persons as representing some or all of them.
"(2) A representative proceeding may be commenced:
(a) whether or not the relief sought:
(i) is, or includes, equitable relief; or
(ii) consists of, or includes, damages; or
(iii) includes claims for damages that would require individual assessment;
or
(iv) is the same for each person represented; and
(b) whether or not the proceeding:
(i) is concerned with separate contracts or transactions between the
respondent in the proceeding and individual group members; or
(ii) involves separate acts or omissions of the respondent done or omitted
to be done in relation to individual group members. Standing
"33D.(1) A person referred to in paragraph 33C(1)(a) who has a sufficient
interest to commence a proceeding on his or her own behalf against another
person has a sufficient interest to commence a representative proceeding
against that other person on behalf of other persons referred to in that
paragraph.
"(2) Where a person has commenced a representative proceeding, the person
retains a sufficient interest:
(a) to continue that proceeding; and
(b) to bring an appeal from a judgment in that proceeding; even though the
person ceases to have a claim against the respondent. Is consent
required to be a group member?
"33E.(1) The consent of a person to be a group member in a representative
proceeding is not required unless subsection (2) applies to the person.
"(2) None of the following persons is a group member in a representative
proceeding unless the person gives written consent to being so:
(a) the Commonwealth, a State or a Territory;
(b) a Minister or a Minister of a State or Territory;
(c) a body corporate established for a public purpose by a law of the
Commonwealth, of a State or of a Territory, other than an incorporated
company or association; or
(d) an officer of the Commonwealth, of a State or of a Territory, in his
or her capacity as such an officer. Persons under disability
"33F.(1) It is not necessary for a person under disability to have a next
friend or committee merely in order to be a group member.
"(2) A group member who is under disability may only take a step in the
representative proceeding, or conduct part of the proceeding, by his or her
next friend or committee, as the case requires. Representative proceeding not
to be commenced in certain circumstances
"33G. A representative proceeding may not be commenced if the proceeding would
be concerned only with claims in respect of which the Court has jurisdiction
solely by virtue of the Jurisdiction of Courts (Cross-vesting) Act 1987 or a
corresponding law of a State or Territory. Originating process
"33H.(1) An application commencing a representative proceeding, or a document
filed in support of such an application, must, in addition to any other
matters required to be included:
(a) describe or otherwise identify the group members to whom the
proceeding relates; and
(b) specify the nature of the claims made on behalf of the group members
and the relief claimed; and
(c) specify the questions of law or fact common to the claims of the group
members.
"(2) In describing or otherwise identifying group members for the purposes of
subsection (1), it is not necessary to name, or specify the number of, the
group members. Right of group member to opt out
"33J.(1) The Court must fix a date before which a group member may opt out of
a representative proceeding.
"(2) A group member may opt out of the representative proceeding by written
notice given under the Rules of Court before the date so fixed.
"(3) The Court, on the application of a group member, the representative party
or the respondent in the proceeding, may fix another date so as to extend the
period during which a group member may opt out of the representative
proceeding.
"(4) Except with the leave of the Court, the hearing of a representative
proceeding must not commence earlier than the date before which a group member
may opt out of the proceeding. Causes of action accruing after commencement of
representative proceeding
"33K.(1) The Court may at any stage of a representative proceeding, on
application made by the representative party, give leave to amend the
application commencing the representative proceeding so as to alter the
description of the group.
"(2) The description of the group may be altered so as to include a person:
(a) whose cause of action accrued after the commencement of the
representative proceeding but before such date as the Court fixes when
giving leave; and
(b) who would have been included in the group, or, with the consent of the
person would have been included in the group, if the cause of action
had accrued before the commencement of the proceeding.
"(3) The date mentioned in paragraph (2)(a) may be the date on which leave is
given or another date before or after that date.
"(4) Where the Court gives leave under subsection (1), it may also make any
other orders it thinks just, including an order relating to the giving of
notice to persons who, as a result of the amendment, will be included in the
group and the date before which such persons may opt out of the proceeding.
Situation where fewer than 7 group members
"33L. If, at any stage of a representative proceeding, it appears likely to
the Court that there are fewer than 7 group members, the Court may, on such
conditions (if any) as it thinks fit:
(a) order that the proceeding continue under this Part; or
(b) order that the proceeding no longer continue under this Part. Cost of
distributing money etc. excessive
"33M. Where:
(a) the relief claimed in a representative proceeding is or includes
payment of money to group members (otherwise than in respect of
costs); and
(b) on application by the respondent, the Court concludes that it is
likely that, if judgment were to be given in favour of the
representative party, the cost to the respondent of identifying the
group members and distributing to them the amounts ordered to be paid
to them would be excessive having regard to the likely total of those
amounts; the Court may, by order:
(c) direct that the proceeding no longer continue under this Part; or
(d) stay the proceeding so far as it relates to relief of the kind
mentioned in paragraph (a). Order that proceeding not continue as
representative proceeding where costs excessive etc.
"33N.(1) The Court may, on application by the respondent or of its own motion,
order that a proceeding no longer continue under this Part where it is
satisfied that it is in the interests of justice to do so because:
(a) the costs that would be incurred if the proceeding were to continue as
a representative proceeding are likely to exceed the costs that would
be incurred if each group member conducted a separate proceeding; or
(b) all the relief sought can be obtained by means of a proceeding other
than a representative proceeding under this Part; or
(c) the representative proceeding will not provide an efficient and
effective means of dealing with the claims of group members; or
(d) it is otherwise inappropriate that the claims be pursued by means of a
representative proceeding.
"(2) If the Court dismisses an application under this section, the Court may
order that no further application under this section be made by the respondent
except with the leave of the Court.
"(3) Leave for the purposes of subsection (2) may be granted subject to such
conditions as to costs as the Court considers just. Consequences of order that
proceeding not continue under this Part
"33P. Where the Court makes an order under section 33L, 33M or 33N that a
proceeding no longer continue under this Part:
(a) the proceeding may be continued as a proceeding by the representative
party on his or her own behalf against the respondent; and
(b) on the application of a person who was a group member for the purposes
of the proceeding, the Court may order that the person be joined as an
applicant in the proceeding. Determination of issues where not all
issues are common
"33Q.(1) If it appears to the Court that determination of the issue or issues
common to all group members will not finally determine the claims of all group
members, the Court may give directions in relation to the determination of the
remaining issues.
"(2) In the case of issues common to the claims of some only of the group
members, the directions given by the Court may include directions establishing
a sub-group consisting of those group members and appointing a person to be
the sub-group representative party on behalf of the sub-group members.
"(3) Where the Court appoints a person other than the representative party to
be a sub-group representative party, that person, and not the representative
party, is liable for costs associated with the determination of the issue or
issues common to the sub-group members. Individual issues
"33R.(1) In giving directions under section 33Q, the Court may permit an
individual group member to appear in the proceeding for the purpose of
determining an issue that relates only to the claims of that member.
"(2) In such a case, the individual group member, and not the representative
party, is liable for costs associated with the determination of the issue.
Directions relating to commencement of further proceedings
"33S. Where an issue cannot properly or conveniently be dealt with under
section 33Q or 33R, the Court may:
(a) if the issue concerns only the claim of a particular member - give
directions relating to the commencement and conduct of a separate
proceeding by that member; or
(b) if the issue is common to the claims of all members of asub-group -
give directions relating to the commencement and conduct of a
representative proceeding in relation to the claims of those members.
Adequacy of representation
"33T.(1) If, on an application by a group member, it appears to the Court that
a representative party is not able adequately to represent the interests of
the group members, the Court may substitute another group member as
representative party and may make such other orders as it thinks fit.
"(2) If, on an application by a sub-group member, it appears to the Court that
a sub-group representative party is not able adequately to represent the
interests of the sub-group members, the Court may substitute another person as
sub-group representative party and may make such other orders as it thinks
fit. Stay of execution in certain circumstances
"33U. Where a respondent in a representative proceeding commences a proceeding
in the Court against a group member, the Court may order a stay of execution
in respect of any relief awarded to the group member in the representative
proceeding until the other proceeding is determined. Settlement and
discontinuance - representative proceeding
"33V.(1) A representative proceeding may not be settled or discontinued
without the approval of the Court.
"(2) If the Court gives such an approval, it may make such orders as are just
with respect to the distribution of any money paid under a settlement or paid
into the Court. Settlement of individual claim of representative party
"33W.(1) A representative party may, with leave of the Court, settle his or
her individual claim in whole or in part at any stage of the representative
proceeding.
"(2) A representative party who is seeking leave to settle, or who has
settled, his or her individual claim may, with leave of the Court, withdraw as
representative party.
"(3) Where a person has sought leave to withdraw as representative party under
subsection (2), the Court may, on the application of a group member, make an
order for the substitution of another group member as representative party and
may make such other orders as it thinks fit.
"(4) Before granting a person leave to withdraw as a representative party:
(a) the Court must be satisfied that notice of the application has been
given to group members in accordance with subsection 33X(1) and in
sufficient time for them to apply to have another person substituted
as the representative party; and
(b) any application for the substitution of another group member as a
representative party has been determined.
"(5) The Court may grant leave to a person to withdraw as representative party
subject to such conditions as to costs as the Court considers just.
"Division 3 - Notices
Notice to be given of certain matters
"33X.(1) Notice must be given to group members of the following matters in
relation to a representative proceeding:
(a) the commencement of the proceeding and the right of the group members
to opt out of the proceeding before a specified date, being the date
fixed under subsection 33J(1);
(b) an application by the respondent in the proceeding for the dismissal
of the proceeding on the ground of want of prosecution;
(c) an application by a representative party seeking leave to withdraw
under section 33W as representative party.
"(2) The Court may dispense with compliance with any or all of the
requirements of subsection (1) where the relief sought in a proceeding does
not include any claim for damages.
"(3) If the Court so orders, notice must be given to group members of the
bringing into Court of money in answer to a cause of action on which a claim
in the representative proceeding is founded.
"(4) Unless the Court is satisfied that it is just to do so, an application
for approval of a settlement under section 33V must not be determined unless
notice has been given to group members.
"(5) The Court may, at any stage, order that notice of any matter be given to
a group member or group members.
"(6) Notice under this section must be given as soon as practicable after the
happening of the event to which the notice relates. Notices - ancillary
provisions
"33Y.(1) This section is concerned with notices under section 33X.
"(2) The form and content of a notice must be as approved by the Court.
"(3) The Court must, by order, specify:
(a) who is to give the notice; and
(b) the way in which the notice is to be given; and the order may include
provision:
(c) directing a party to provide information relevant to the giving of the
notice; and
(d) relating to the costs of notice.
"(4) An order under subsection (3) may require that notice be given by means
of press advertisement, radio or television broadcast, or by any other means.
"(5) The Court may not order that notice be given personally to each group
member unless it is satisfied that it is reasonably practicable, and not
unduly expensive, to do so.
"(6) A notice that concerns a matter for which the Court's leave or approval
is required must specify the period within which a group member or other
person may apply to the Court, or take some other step, in relation to the
matter.
"(7) A notice that includes or concerns conditions must specify the conditions
and the period, if any, for compliance.
"(8) The failure of a group member to receive or respond to a notice does not
affect a step taken, an order made, or a judgment given, in a proceeding.
"Division 4 - Judgment etc. Judgment - powers of the Court
"33Z.(1) The Court may, in determining a matter in a representative
proceeding, do any one or more of the following:
(a) determine an issue of law;
(b) determine an issue of fact;
(c) make a declaration of liability;
(d) grant any equitable relief;
(e) make an award of damages for group members, sub-group members or
individual group members, being damages consisting of specified
amounts or amounts worked out in such manner as the Court specifies;
(f) award damages in an aggregate amount without specifying amounts
awarded in respect of individual group members;
(g) make such other order as the Court thinks just.
"(2) In making an order for an award of damages, the Court must make provision
for the payment or distribution of the money to the group members entitled.
"(3) Subject to section 33V, the Court is not to make an award of damages
under paragraph (1)(f) unless a reasonably accurate assessment can be made of
the total amount to which group members will be entitled under the judgment.
"(4) Where the Court has made an order for the award of damages, the Court may
give such directions (if any) as it thinks just in relation to:
(a) the manner in which a group member is to establish his or her
entitlement to share in the damages; and
(b) the manner in which any dispute regarding the entitlement of a group
member to share in the damages is to be determined. Constitution etc.
of fund
"33ZA.(1) Without limiting the operation of subsection 33Z(2), in making
provision for the distribution of money to group members, the Court may
provide for:
(a) the constitution and administration of a fund consisting of the money
to be distributed; and
(b) either:
(i) the payment by the respondent of a fixed sum of money into the fund;
or
(ii) the payment by the respondent into the fund of such instalments, on
such terms, as the Court directs to meet the claims of group members;
and
(c) entitlements to interest earned on the money in the fund.
"(2) The costs of administering a fund are to be borne by the fund, or by the
respondent in the representative proceeding, as the Court directs.
"(3) Where the Court orders the constitution of a fund mentioned in subsection
(1), the order must:
(a) require notice to be given to group members in such manner as is
specified in the order; and
(b) specify the manner in which a group member is to make a claim for
payment out of the fund and establish his or her entitlement to the
payment; and
(c) specify a day (which is 6 months or more after the day on which the
order is made) on or before which the group members are to make a
claim for payment out of the fund; and
(d) make provision in relation to the day before which the fund is to be
distributed to group members who have established an entitlement to be
paid out of the fund.
"(4) The Court may allow a group member to make a claim after the day fixed
under paragraph (3)(c) if:
(a) the fund has not already been fully distributed; and
(b) it is just to do so.
"(5) On application by the respondent in the representative proceeding after
the day fixed under paragraph (3)(d), the Court may make such orders as are
just for the payment from the fund to the respondent of the money remaining in
the fund. Effect of judgment
"33ZB. A judgment given in a representative proceeding:
(a) must describe or otherwise identify the group members who will be
affected by it; and
(b) binds all such persons other than any person who has opted out of the
proceeding under section 33J.
"Division 5 - Appeals
Appeals to the Court
"33ZC.(1) The following appeals under Division 2 of Part III from a judgment
of the Court in a representative proceeding may themselves be brought as
representative proceedings:
(a) an appeal by the representative party on behalf of group members and
in respect of the judgment to the extent that it relates to issues
common to the claims of group members;
(b) an appeal by a sub-group representative party on behalf of sub-group
members in respect of the judgment to the extent that it relates to
issues common to the claims of sub-group members.
"(2) The parties to an appeal referred to in paragraph (1)(a) are the
representative party, as the representative of the group members, and the
respondent.
"(3) The parties to an appeal referred to in paragraph (1)(b) are the
sub-group representative party, as the representative of the sub-group
members, and the respondent.
"(4) On an appeal by the respondent in a representative proceeding, other than
an appeal referred to in subsection (5), the parties to the appeal are:
(a) in the case of an appeal in respect of the judgment generally - the
respondent and the representative party as the representative of the
group members; and
(b) in the case of an appeal in respect of the judgment to the extent that
it relates to issues common to the claims of sub-group members - the
respondent and the sub-group representative party as the
representative of the sub-group members.
"(5) The parties to an appeal in respect of the determination of an issue that
relates only to a claim of an individual group member are that group member
and the respondent.
"(6) If the representative party or the sub-group representative party does
not bring an appeal within the time provided for instituting appeals, another
member of the group or sub-group may, within a further 21 days, bring an
appeal as representing the group members or sub-group members, as the case may
be.
"(7) Where an appeal is brought from a judgment of the Court in a
representative proceeding, the Court may direct that notice of the appeal be
given to such person or persons, and in such manner, as the Court thinks
appropriate.
"(8) Section 33J does not apply to an appeal proceeding.
"(9) The notice instituting an appeal in relation to issues that are common to
the claims of group members or sub-group members must describe or otherwise
identify the group members or sub-group members, as the case may be, but need
not specify the names or number of those members. Appeals to the High Court -
extended operation of sections 33ZC and 33ZF
"33ZD.(1) Sections 33ZC and 33ZF apply in relation to appeals to the High
Court from judgments of the Court in representative proceedings in the same
way as they apply to appeals to the Court from such judgments.
"(2) Nothing in subsection (1) limits the operation of section 33 whether in
relation to appeals from judgments of the Court in representative proceedings
or otherwise.
"Division 6 - Miscellaneous
Suspension of limitation periods
"33ZE.(1) Upon the commencement of a representative proceeding, the running of
any limitation period that applies to the claim of a group member to which the
proceeding relates is suspended.
"(2) The limitation period does not begin to run again unless either the
member opts out of the proceeding under section 33J or the proceeding, and any
appeals arising from the proceeding, are determined without finally disposing
of the group member's claim. General power of Court to make orders
"33ZF.(1) In any proceeding (including an appeal) conducted under this Part,
the Court may, of its own motion or on application by a party or a group
member, make any order the Court thinks appropriate or necessary to ensure
that justice is done in the proceeding.
"(2) Subsection (1) does not limit the operation of section 22. Saving of
rights, powers etc.
"33ZG. Except as otherwise provided by this Part, nothing in this Part
affects:
(a) the commencement or continuance of any action of a representative
character commenced otherwise than under this Part; or
(b) the Court's powers under provisions other than this Part, for example,
its powers in relation to a proceeding in which no reasonable cause of
action is disclosed or that is oppressive, vexatious, frivolous or an
abuse of the process of the Court; or
(c) the operation of any law relating to:
(i) vexatious litigants (however described); or
(ii) proceedings of a representative character; or
(iii) joinder of parties; or
(iv) consolidation of proceedings; or
(v) security for costs. Special provision relating to claims under Part VI
of the Trade Practices Act 1974
"33ZH.(1) For the purposes of subsection 87(1) of the Trade Practices Act
1974, a group member in a representative proceeding is to be taken to be a
party to the proceeding.
"(2) An application under subsection 87(1A) of the Trade Practices Act 1974 by
a representative party in a representative proceeding is to be taken to be an
application by the representative party and all the group members.
Reimbursement of representative party's costs
"33ZJ.(1) Where the Court has made an award of damages in a representative
proceeding, the representative party or a sub-group representative party, or a
person who has been such a party, may apply to the Court for an order under
this section.
"(2) If, on an application under this section, the Court is satisfied that the
costs reasonably incurred in relation to the representative proceeding by the
person making the application are likely to exceed the costs recoverable by
the person from the respondent, the Court may order that an amount equal to
the whole or a part of the excess be paid to that person out of the damages
awarded.
"(3) On an application under this section, the Court may also make any other
order it thinks just.".
Source : http://www.austlii.edu.au/au/legis/cth/num_act/fcoaaa1991329/s3.html
