Can class action regimes operate satisfactorily without a certification device? Empirical insights from the Federal Court of Australia

Vincenzo Morabito, Jane Carmel Caruana

Research output: Contribution to journalArticleResearchpeer-review

2 Citations (Scopus)

Abstract

Contrary to the class action regimes that operate in the United States and Canada, the rules governing class actions in the Federal Court of Australia and in the Supreme Courts of the Australian states of Victoria and New South Wales do not employ what are commonly known as certification devices. As a result, the Australian regimes do not require the formal authorization of the court before a proceeding may be brought and conducted as a class action. Given that unlike the world s only other certification-free regime (the Swedish), Australia s class action rules are otherwise quite similar to their North American counterparts, they provide a valuable case study with respect to a fundamental question that has not generally been given the consideration it deserves by North American policy makers and commentators: can a comprehensive and modern class action regime operate satisfactorily without a certification mechanism? The aim of this Article is to explore this issue by providing the very first empirical evaluation of the operation of the mechanism that has been regulating since March 1992, in lieu of the certification device, what proceedings may be brought and conducted in the Federal Court of Australia as class actions. These empirical findings and the essential features of the alternative Australian model (frequently described as the decertification model) will also be compared and contrasted with the salient characteristics, and available empirical data concerning the operation of, the American and Canadian certification regimes.
Original languageEnglish
Pages (from-to)579 - 615
Number of pages37
JournalAmerican Journal of Comparative Law
Volume61
Issue number3
DOIs
Publication statusPublished - 2013

Cite this

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title = "Can class action regimes operate satisfactorily without a certification device? Empirical insights from the Federal Court of Australia",
abstract = "Contrary to the class action regimes that operate in the United States and Canada, the rules governing class actions in the Federal Court of Australia and in the Supreme Courts of the Australian states of Victoria and New South Wales do not employ what are commonly known as certification devices. As a result, the Australian regimes do not require the formal authorization of the court before a proceeding may be brought and conducted as a class action. Given that unlike the world s only other certification-free regime (the Swedish), Australia s class action rules are otherwise quite similar to their North American counterparts, they provide a valuable case study with respect to a fundamental question that has not generally been given the consideration it deserves by North American policy makers and commentators: can a comprehensive and modern class action regime operate satisfactorily without a certification mechanism? The aim of this Article is to explore this issue by providing the very first empirical evaluation of the operation of the mechanism that has been regulating since March 1992, in lieu of the certification device, what proceedings may be brought and conducted in the Federal Court of Australia as class actions. These empirical findings and the essential features of the alternative Australian model (frequently described as the decertification model) will also be compared and contrasted with the salient characteristics, and available empirical data concerning the operation of, the American and Canadian certification regimes.",
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Can class action regimes operate satisfactorily without a certification device? Empirical insights from the Federal Court of Australia. / Morabito, Vincenzo; Caruana, Jane Carmel.

In: American Journal of Comparative Law, Vol. 61, No. 3, 2013, p. 579 - 615.

Research output: Contribution to journalArticleResearchpeer-review

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