Replacing inadequate class representatives in federal class actions: Quo Vadis?

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It was no doubt the duty of the Court in such suits to see that the absent interests were fairly and honestly represented. However, it is precisely because of the flexible utility of the representative action that judicial control of its conduct is important, to ensure not only that the litigation as between the plaintiff and defendant is efficiently disposed of but also that the interests of those who are absent but represented are not prejudiced by the conduct of the litigation on their behalf. The self-proclaimed carrier of a litigious banner may prove to be an indolent or incompetent champion of the common cause in the courtroom. The comments set out above were made in 1921 and 1995 by Starke J and Brennan J of the High Court of Australia, respectively, in relation to representative actions that are regulated by the rules of court that govern proceedings filed in Australia s superior courts. These traditional representative action rules may accurately be described as the predecessors to modern class action regimes. Three class action regimes currently operate in Australia. The first was introduced in the Federal Court of Australia in March 1992 by part IVA of the Federal Court of Australia Act 1976 (Cth) ( Part IVA ). An almost identical regime has been available in the Supreme Court of Victoria since January 2000 as a result of the enactment of part 4A of the Supreme Court Act 1986 (Vic) ( Part 4A ). The New South Wales Parliament was the most recent Australian legislature to introduce - through the enactment in March 2011 of part 10 of the Civil Procedure Act 2005 (NSW) ( Part 10 ) - a comprehensive class action regime. Part 10 is also based on the federal regime. Thus, Chief Justice Brennan s and Justice Starke s comments set out above are as applicable and relevant to Australia s three legislative class action regimes as they are to the representative action rules.
Original languageEnglish
Pages (from-to)146 - 178
Number of pages33
JournalUniversity of New South Wales Law Journal
Issue number1
Publication statusPublished - 2015

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