Civil Procedure (Representative Proceedings) Act 2022

Representative proceeding: A proceeding commenced under this Act by one or more persons on behalf of and as representing some or all of a identified group of persons who have claims arising from the same, similar or related circumstances and which give rise to a substantial common issue of law or fact (s 6(1)-(2)). The representative proceeding mechanism covers equitable relief, damages, claims requiring individual assessment, differing remedies across group members, and scenarios involving separate contracts or acts concerning individual members (s 6(3)-(4)). This is a broad conception intended to capture a range of mass claims.

Group member and identification: The statute requires the originating application to describe or otherwise identify the group members and to specify the common issues and relief claimed (s 11(1)(a)-(c)). The description need not list names or specify the number of group members (s 11(2)), but the Court’s judgment must identify those who will be bound by it (s 29). The Act therefore relies on class descriptors rather than exhaustive class lists.

Minimum numerosity and flexibility: The statutory threshold is seven or more persons (s 6(1)(a)). If at any stage it appears there are fewer than seven group members, the Court may order that the proceeding continue or no longer continue under the Act, on such conditions as it thinks fit (s 14). That creates a configurable boundary; the Court can convert or terminate representative status as appropriate.

Opt‑out model and notice: The Act operates an opt‑out model. The Court must fix an opt‑out date (s 12(1)). Group members can opt out by written notice before that date as provided by Court rules (s 12(2)). The Act obliges notice for key events (commencement, want‑of‑prosecution applications, representative withdrawal applications) and makes settlement approval subject to notice unless the Court dispenses with it where no damages are sought (s 25(1)-(4)). The Court controls the form, content, manner, costs and providers of notice (s 26(1)-(3)) and may permit non‑personal notice (s 26(3)(c)), while the failure of a group member to receive notice does not vitiate steps, orders or judgments (s 26(7)).

Sub‑groups and individual issues: The statute explicitly anticipates heterogeneity of issues by allowing sub‑group formation and appointment of sub‑group representative parties to resolve issues common to subsets of group members (s 18(2)-(3)). The Court may permit individual members to appear for the determination of issues unique to them, and liability for costs follows the actor who seeks to pursue the individual issue (s 19). The Court may also direct the commencement of separate proceedings where issues cannot be conveniently dealt with within the representative framework (s 20).

Financial management and distribution: The Court can order creation of a fund into which the respondent pays specified sums or instalments to meet group members’ claims, specify entitlement to interest, and direct how claims are to be made during a distribution period that cannot end earlier than six months after the order (s 28(1)-(3)). Administration costs may be charged to the fund or borne by the respondent as the Court directs (s 28(2)). If money remains after the final distribution day, the Court may order payment back to the respondent on just terms (s 28(5)).

Costs, reimbursement and protection: The Act prevents costs awards against ordinary group members except in specified circumstances, namely against representative parties, sub‑group representative parties for sub‑group common issues, or individual members who appear for their own issues (s 31). The Court may reimburse a representative party or sub‑group representative party out of damages awarded where the Court is satisfied the person’s reasonable costs are likely to exceed recoverable costs, but only after an award of damages has been made (s 33(1)-(2)).

Court management and powers: The Court has broad management powers, including the ability to discontinue representative status where case management or cost considerations show inefficiency (s 16), to stay execution where related proceedings exist (s 22), to substitute representative parties (s 21), to approve settlements and make consequential distribution orders (s 23), and to make any order needed to ensure justice in the proceeding (s 34). The Supreme Court’s rules‑making power is extended to regulate practice under the Act (s 35).

Abolition of maintenance and champerty: The Act expressly abolishes the torts of maintenance and champerty (s 36(1)), while preserving causes of action that accrued before the abolition and existing public policy doctrines concerning illegal contracts (s 36(2)). This creates a statutory change to doctrines that historically constrained third‑party funding arrangements, subject to the savings in s 36(2).

Review: The Minister must review the operation and effectiveness of the Act and lay a report before Parliament as soon as practicable after the fifth anniversary of the date s 37 comes into operation, and not later than 12 months after that anniversary (s 37). This embeds a formal post‑implementation evaluation point.

Representative parties: Any person who has sufficient interest to commence a proceeding on their own behalf has the standing to commence and continue that proceeding as a representative proceeding on behalf of others where the statutory prerequisites are met (s 7(1)). A representative party can be one or more persons and retains standing even if their own claim ceases to exist (s 7(3)). Representative parties face duties concerning the accuracy of the group description in the originating process (s 11), obligations to facilitate notice (s 26), and the risk of costs awards to them personally (s 31). They may, with leave, settle their individual claim and withdraw as representative party subject to notice and substitution procedures (s 24).

Group members: Persons included in a described class are bound by the Court’s judgment unless they validly opt out (s 29). They benefit from a suspension of limitation periods upon commencement of the representative proceeding (s 32(1)), but that suspension ceases only on opt out or if the proceeding and appeals are determined without finally disposing of the group member’s claim (s 32(2)). Ordinary group members are protected from costs awards except in narrow circumstances (s 31). They must rely on the notice regime to be informed of key milestones; the Court sets the opt‑out date and the required form of notices (s 12; s 25-26).

Respondents: Persons against whom relief is sought, including corporations and individuals, are affected by a consolidated procedure that can aggregate many claims (s 3). The Act gives respondents several defensive mechanisms: the Court may discontinue or stay representative status where case management costs or distribution costs are excessive relative to the likely monetary relief (s 16; s 15); respondents can apply to have the Court order that the proceeding no longer continue under the Act for a range of efficiency or appropriateness reasons (s 16(1)); and respondents can seek orders for payment back of any undistributed amounts in a fund after the final distribution day (s 28(5)). Where a respondent sues a group member in a separate proceeding, the Court may stay execution of relief awarded to that group member in the representative proceeding until the separate action is resolved (s 22).

Legal practitioners and funders: Lawyers who initiate or manage representative proceedings must meet the detail requirements of s 11, plan notice in accordance with s 25-26, structure settlement applications under s 23 and, where appropriate, seek leave for reimbursement under s 33. The abolition of maintenance and champerty in s 36(1) may alter the legal risk picture for third‑party funders, but the Act preserves causes of action accrued before its commencement and public policy doctrines as to illegal contracts (s 36(2)). Funders and solicitors will need to navigate reimbursement rules, which permit orders to pay excess costs to representative parties out of damages only where the Court is satisfied and where a damages award has been made (s 33).

Public sector entities and the Crown: The Act binds the Crown in right of Western Australia and other Crown capacities as legislative power permits (s 5). Special consent rules apply to the Commonwealth, States and Territories and public bodies established by law: such entities are not group members unless they give written consent (s 8(2)(a)-(c)). Ministers and officers of government are likewise excluded from being group members unless they consent in writing (s 8(2)(b),(d)).

The Supreme Court and its registry: The Court has decision and managerial authority under many sections, including imposing notice content and mechanisms (s 26), fixing opt‑out dates (s 12), establishing funds and distribution regimes (s 28), substituting representatives (s 21), and making costs orders and other directions to ensure justice (s 31; s 34). Court resources will be engaged in case‑management, notice oversight and distribution supervision.

Members of the public and potential class participants: Individuals who fall within a class description will be bound by outcomes unless they opt out, so consumer groups, employees, shareholders and other dispersed claimants are materially affected by the opt‑out mechanism (s 12; s 29). The Act’s notice rules and ability to use non‑personal notice mechanisms are material to the likelihood that dispersed persons will be aware of proceedings and their opt‑out rights (s 26).

Duties in originating process and description of the group: The originating application that commences a representative proceeding must, in addition to other required matters, describe or otherwise identify the group members, specify the nature of claims and relief claimed, and specify questions of law or fact common to the group members’ claims (s 11(1)(a)-(c)). The description need not name or state the number of group members (s 11(2)), but adequate identification is necessary because the judgment must describe or otherwise identify group members affected (s 29).

Notice and opt‑out duties: The Court must set an opt‑out date before which group members may opt out (s 12(1)). Notices of commencement, want‑of‑prosecution applications by respondents, and representative withdrawal applications must be given to group members (s 25(1)). The Court decides who gives notice and how it is given, and may require non‑personal publication methods (s 26(2)-(3)). Notices must be given as soon as practicable after the event to which they relate (s 25(6)). Where the Court approves a settlement, notice ordinarily must have been given to group members unless the Court dispenses with that requirement in matters not involving damages (s 25(4); s 25(2)).

Rights to opt out and bindability: Group members have the right to opt out by written notice before the Court‑fixed date (s 12(2)). A judgment binds the identified group members except for any person who has validly opted out (s 29). The opt‑out right is central to the representational legitimacy of judgments.

Costs rights and liabilities: Ordinary group members are protected from adverse costs orders except in particular circumstances (s 31). The Act permits costs awards against representative parties, sub‑group representatives for sub‑group common issues, and individual members who appear for individual issues (s 31). This allocation shifts cost risk onto the persons who take on active representative or individual roles, rather than passive class members.

Reimbursement and relief: A representative party or sub‑group representative party may seek Court orders to be reimbursed from damages where the Court is satisfied their reasonable costs are likely to exceed recoverable costs, but such orders can only be made after the Court has made an award of damages (s 33(1)-(2)). The Court may award damages in specified amounts, by methods it directs, or, insofar as a reasonably accurate total can be assessed, in aggregate (s 27(1)(e)-(g); s 27(3)). In making damage awards, the Court must make provision for payment or distribution to entitled group members (s 27(2)).

Settlement controls: Settlements and discontinuances require Court approval (s 23(1)). If the Court gives approval, it can make just orders regarding distribution of settlement monies (s 23(2)). A representative party may settle their individual claim with leave, and may seek leave to withdraw as representative on notice to the group (s 24).

Management rights of the Court: The Court may manage heterogeneity by forming sub‑groups, appointing sub‑group representatives, substituting representatives, directing the conduct of further proceedings, discontinuing representative status if inefficient, and staying execution of awards where respondents pursue separate proceedings against group members (s 18; s 20; s 21; s 16; s 22). The Court also has explicit power to make rules for practice and procedure under the Supreme Court Act 1935 (s 35).

Suspension of limitation periods: On commencement of a representative proceeding, limitation periods that apply to group members’ claims are suspended (s 32(1)). The period does not begin to run again unless the member opts out or the representative proceeding and appeals are determined without finally disposing of the group member’s claim (s 32(2)). This confers a statutory pause in limitation risk for class members.

Abolition and savings: The torts of maintenance and champerty are abolished (s 36(1)). This is offset by savings: causes of action that accrued before abolition remain unaffected and rules about contracts being contrary to public policy continue to apply (s 36(2)(a)-(b)).

Nature of enforcement: The Act does not create criminal offences or statutory fines. Enforcement and correctional mechanisms are judicial, exercised by the Supreme Court through orders, stays, discontinuances, costs awards and management directions. The principal enforcement levers are case‑management orders and costs consequences.

Court orders and discontinuance: The Court can order that a proceeding no longer continue as a representative proceeding where it is in the interests of justice because of comparative costs, availability of alternative proceedings, inefficiency of the representative route, or other appropriateness grounds (s 16(1)(a)-(d)). It can also, on application by a respondent, discontinue or stay part of a proceeding if distribution costs would be excessive relative to likely monetary relief (s 15(2)(a)-(b)). Where the Court orders discontinuance of representative status, it can permit the proceeding to continue on the representative party’s own behalf and allow joinder of group members as applicants (s 17).

Costs orders: Costs allocation is a primary enforcement mechanism. The Court must not award costs against ordinary group members except in the specific circumstances listed in s 31. Costs may be awarded against the representative party, a sub‑group representative party in relation to sub‑group common issues, or an individual group member appearing for their own issue (s 31). The Court may, as part of leave or substitution orders, impose conditions as to costs (s 16(3); s 24(5)). Costs orders can operate as a deterrent for representative parties or sub‑group representatives who act imprudently or pursue individualised litigation within the group context.

Stay of execution: Section 22 permits a stay of execution of any relief awarded to a group member in the representative proceeding if the respondent has commenced a separate proceeding in the Court against that group member. This suspends enforcement of the award against the respondent until the separate action is resolved, and so protects respondents from double enforcement while an overlapping claim is litigated.

Distribution supervision and return of funds: The Court supervises funds established under s 28, can specify distribution periods and final distribution day (s 28(3)), and can, on application, order payment from the fund back to the respondent of any money remaining after the final distribution day (s 28(5)). This authorises judicial adjustment rather than automatic confiscation of residual funds.

Restriction on costs against group members: The protection in s 31 constrains the Court’s ability to penalise passive class members by costs orders. This is an important enforcement boundary, reserving financial sanctions to active participants or representatives.

Reimbursement mechanism: The Court can order reimbursement from damages to a representative party whose reasonable costs are likely to exceed recoverable costs, but an order cannot be made unless the Court has made an award of damages (s 33(1)-(2)). This is not framed as a penalty but as a remedial payment to a representative party in recognition of net unrecoverable expense, subject to judicial scrutiny.

Abolition of maintenance and champerty and its enforcement implications: Section 36 abolishes torts of maintenance and champerty, thereby removing historical tort‑based sanctions against third‑party support of litigation. However s 36(2) preserves the right to pursue pre‑existing causes of action in tort and existing public policy doctrines that can render contracts illegal. Thus enforcement architecture for funding arrangements shifts from tort remedies to contract and public policy analysis.

Rule‑making and supervisory powers: The Supreme Court’s power to make rules under s 35 and the Court’s general power to make any order necessary to ensure justice (s 34) are enforcement tools. They allow the Court to define procedural sanctions, notice requirements, timelines and other mechanisms that implement the Act’s policy and correct non‑compliance.

No express statutory monetary penalties: The Act contains no express civil pecuniary penalties for non‑compliance with procedural provisions (for example failure to give notice). Instead, the Act provides that the failure of a group member to receive notice does not affect steps taken or judgments given (s 26(7)), which reduces procedural non‑compliance exposure for parties and places corrective emphasis on judicial management rather than statutory penalties.

Court rules and Supreme Court Act 1935: The Act expressly extends the Supreme Court’s rule‑making power under the Supreme Court Act 1935 to regulate practice and procedure in relation to proceedings under this Act (s 35). The Act therefore operates in conjunction with rules to shape practical implementation, notice formats, opt‑out mechanics and other procedural details set out conceptually in the statute.

Jurisdictional limits and cross‑vesting: Section 10 bars commencement of a representative proceeding where the Court's jurisdiction exists solely by virtue of the Jurisdiction of Courts (Cross‑vesting) Act 1987 or corresponding Commonwealth, State or Territory laws. This confines the Act’s application to matters properly within the Supreme Court’s ordinary jurisdiction and prevents reliance on cross‑vesting alone to bring otherwise non‑jurisdictional claims within the representative framework.

Existing representative procedures: The Act does not prevent proceedings under any provision of the Court’s rules that provide for representation of persons with the same interest in proceedings (s 4(2)). Practically, this means existing rule‑based representative mechanisms remain available and the statutory regime sits alongside, rather than necessarily replacing, prior practice. Rules may therefore need to be reconciled with the Act’s mandatory requirements such as the seven‑person threshold, opt‑out obligations and notice standards.

Limitation law: The Act suspends running of limitation periods for group members’ claims upon commencement of a representative proceeding (s 32(1)). The limitation period only resumes if the member opts out or the representative proceeding and appeals are determined without finally disposing of the member’s claim (s 32(2)). This statutory suspension interacts with Western Australian limitation statutes and requires practitioners to consider how the suspension affects strategic decisions about filing separate proceedings, opting out or seeking substitution.

Costs and existing costs rules: The Act reallocates cost risk in representative proceedings by prohibiting adverse costs orders against passive group members except in limited circumstances (s 31). This interacts with established costs rules and the Court’s general discretion to award costs under prevailing civil procedure law. Costs consequences for representatives and sub‑group representatives will operate inside the existing costs regime.

Abolition of maintenance and champerty: Section 36 abolishes these torts, changing the legal landscape for third‑party funding and agreements that might previously have been challenged on tort grounds. However, s 36(2) preserves causes of action that accrued before the abolition date and continues to permit public policy and illegality doctrines to render contracts unenforceable. Therefore, the abolition alters but does not remove all legal constraints on funding arrangements; funders and parties must still consider contract law and public policy rules as they apply.

Settlement law and trust/agency obligations: The Act empowers the Court to direct the constitution and administration of funds, and to make orders about distribution and claims processes (s 28). This interacts with trust, agency and equitable principles when monies are held for the benefit of identifiable claimants. The Court can direct whether administrative costs are borne by the fund or the respondent (s 28(2)), which will affect whether monies form part of a trust or are managed by a court‑appointed administrator.

Appeals architecture: The Act permits appeals to be conducted as representative proceedings (s 30). This interacts with appeal time limits and interlocutory rights; where a representative party does not lodge an appeal within the ordinary period, another group member may file within a further 21 days (s 30(3)). Group members cannot opt out of a representative appeal (s 30(4)), which affects the relationship between finality on appeal and individual opt‑outs.

Crown and public entities: The Act binds the Crown as far as permissible (s 5) but excludes the Commonwealth, State or Territory or bodies corporate created for public purposes from being group members without written consent (s 8(2)). This interacts with administrative law and public liability regimes and ensures particular consent mechanics for public sector participation.

Other substantive law: The Act does not change substantive causes of action. It provides a procedural vehicle to aggregate claims, and in doing so it interacts with substantive tort, contract, statutory and equity remedies by enabling common issues to be litigated collectively, and by specifying how damages can be awarded and distributed (s 27). It expressly allows equitable relief and damages, including claims requiring individual assessment (s 6(3)).

The source compilation table records the Act as Civil Procedure (Representative Proceedings) Act 2022, No. 30 of 2022. The short title is s 1. Part 1 of the Act (which contains preliminary provisions including the short title and commencement) came into operation upon Royal Assent on 14 September 2022 (s 2(a); compilation table). The remainder of the Act commenced on 25 March 2023, pursuant to proclamation (s 2(b); SL 2023/21 cl. 2 and compilation table). The Act therefore has initial and staged commencement dates: Pt 1 on assent and the substantive provisions later by proclamation.

Section 37 requires a formal statutory review. The Minister must review the operation and effectiveness of the Act and prepare a report as soon as practicable after the fifth anniversary of the day on which s 37 comes into operation. The report must be laid before each House of Parliament as soon as practicable after preparation, but not later than 12 months after the fifth anniversary (s 37(1)-(2)). This establishes a mandatory review timetable five years after the commencement of that review provision, and it creates a vehicle for parliamentary scrutiny of the practical operation of the new regime.

There are no amendments recorded in the provided compilation beyond commencement. The Act abolishes the torts of maintenance and champerty in s 36(1) and provides savings in s 36(2) for earlier accrued causes and public policy rules, but these are not amendments to other Acts; they are substantive changes within this Act. The Supreme Court’s rules‑making power is expressly extended to regulate practice and procedure for proceedings under this Act (s 35), which may lead to consequential rule changes under the Supreme Court Act 1935 but such rule changes are not reproduced in the source statutes here.

Because the Act is recent, the statutory review requirement creates a foreseeable point at which Parliamentary attention, reports and possible legislative amendments could be proposed. The Act’s staged commencement and express rule‑making empowerment mean that implementation details may have been settled in subsequent Supreme Court rules made after commencement, but such rule changes are not included in the provided text.

The Act text does not include judicial decisions or reported litigation. The source contains no cases or authority applying the Act. For this reason, there is no litigation history recorded in the provided text to summarise or analyse.

Notwithstanding the absence of decided cases in the source, the Act builds in appellate and interlocutory procedures and specifies how appeals should proceed as representative proceedings, which provides for litigation flows to and from the Supreme Court (s 30). An appeal from a judgment in a representative proceeding may itself be brought as a representative proceeding. The Act sets out who the parties are in different appeal scenarios, covers appeals by representative parties, sub‑group representative parties and respondents, and allows another member of the group or sub‑group to bring an appeal within a further 21 days if a representative party fails to appeal in time (s 30(1)-(3)). Group members cannot opt out of a representative appeal proceeding (s 30(4)). The Court can direct that notice of an appeal be given to such persons and in such manner as it thinks appropriate (s 30(5)), and the notice instituting the appeal must describe or otherwise identify the group or sub‑group (s 30(6)).

Because the Act leaves many procedural specifics to rules and to Court direction, early litigation applying the Act is likely to clarify issues such as: the adequacy of group descriptions under s 11, acceptable notice modalities under s 26, criteria for stay or discontinuance under ss 15 and 16, the operation of s 33 reimbursement orders, and the application of s 36 in relation to third‑party funding agreements. Those judicial interpretations will be consequential for practice, but they are not included in the Act text and thus not available here.

Practitioners and parties should therefore monitor Supreme Court rule changes and early judgments to see how the Court exercises the wide management powers granted by ss 16, 18, 21, 23, 27 and 34, and to identify where the Court draws lines on matters the Act leaves for judicial discretion, such as what constitutes a “substantial common issue” (s 6(1)(c)), what counts as “excessive” distribution costs (s 15(2)), and the standard for reimbursement under s 33.

Minimum numerosity: A proceeding can only be commenced as a representative proceeding where seven or more persons have claims meeting the Act’s commonality requirements (s 6(1)(a)). If the number of group members falls below seven, the Court may either continue or terminate representative status on such conditions as it thinks fit (s 14). Failure to appreciate the numerosity requirement at the outset may result in conversion to individual proceedings or loss of representative advantages later.

Opt‑out timing and hearing start: The Court must fix an opt‑out date and, except with leave, a representative proceeding hearing must not commence earlier than the opt‑out deadline (s 12(1); s 12(4)). Parties cannot shortcut notice and commence hearing before members have had a fair opportunity to opt out. Practitioners who fail to secure or respect an appropriate opt‑out date risk procedural upset.

Notice formalities and non‑receipt: The Court prescribes form and manner of notices and may order publication in media or other non‑personal forms where personal service is impracticable or unduly expensive (s 26(1)-(4)). Critically, the Act provides that failure of a group member to receive or respond to a notice does not affect a step, order or judgment in the proceeding (s 26(7)). This means that imperfect notice will not necessarily invalidate the process, but it does increase the importance of principled notice planning to avoid challenges on adequacy grounds and to preserve the representativeness of the outcome.

Distribution costs vs. monetary relief: The respondent can apply to show distribution costs would be excessive relative to likely monetary relief, and the Court can order the proceeding no longer continue under the Act or stay the monetary relief portion (s 15(2)(a)-(b)). If a claimant pursues a representative proceeding in a context where potential individual recoveries are small and dispersed, a respondent can successfully seek termination of representative status, forcing claimants into separate proceedings or other remedies.

Aggregate awards and accuracy requirement: The Court is not to award aggregate damages without specifying amounts for individuals unless a reasonably accurate assessment can be made of total entitlement (s 27(3)). Users should not assume aggregate awards will be routine; where individual assessment is required and a reliable aggregate cannot be calculated, the Court will require specified amounts or a method for calculation.

Costs exposure for representative roles: Although ordinary group members are insulated from costs in most circumstances, the representative party bears cost risk for acting as representative (s 31). Sub‑group representative parties bear costs for sub‑group common issues (s 18(3); s 31). Individuals who elect to appear for their own issues bear costs for those issues (s 19(2)). This allocation incentivises careful selection of representative parties and prudence by individuals seeking to litigate individual issues within the proceeding.

Reimbursement timing: Section 33 allows reimbursement only after an award of damages. Representative parties who front costs or obtain third‑party funding should note that any Court order to pay excess costs out of damages is contingent upon a damages award, which risks leaving net unrecovered costs if a damages award is not obtained or if the Court declines a reimbursement order.

Abolition of maintenance and champerty: The abolition in s 36(1) removes those torts but preserves causes accrued before the abolition and public policy as to illegal contracts (s 36(2)). Parties relying on the abolition to justify particular funding or fee arrangements must still consider whether their contracts could be unenforceable on public policy grounds or affected by other doctrines.

Limitation pause does not guarantee outcome: Suspension of limitation periods on commencement of a representative proceeding (s 32(1)) pauses the clock, but the period starts again only if the member opts out or if the proceeding and appeals are determined without finally disposing of the group member’s claim (s 32(2)). If a representative proceeding fails to finally dispose of a member’s claim, the member may face refiling decisions and strategic timing questions.

Court discretion: Many key outcomes depend on judicial discretion. The Court can make varied orders under ss 16, 18, 21, 23, 27 and 34, which creates uncertainty for parties planning litigation strategy. Predictability will depend on how the Court exercises that discretion in initial cases.

Failure to meet procedural requisites in the originating application: The originating process must describe the group, the claims and common questions (s 11). An inadequate description may attract interlocutory challenges, conversion to individual proceedings, or later difficulties in determining who is bound by judgment.

Appeals and opt‑out: Group members cannot opt out of a representative appeal proceeding (s 30(4)). This can mean that opt‑out rights at first instance do not translate into opt‑out options at the appellate stage, which affects finality and the exposure of group members to appellate outcomes.

Fund administration costs and residual amounts: The Court may direct administration costs to be borne by the fund or the respondent (s 28(2)), and may order payment from residual funds back to the respondent after the final distribution day (s 28(5)). Parties should plan for administration fees, claims processing and residual handling when negotiating settlements or providing undertakings.

Cross‑vesting limitation: Representative proceedings cannot be based solely on jurisdiction that the Court holds because of cross‑vesting arrangements (s 10). This can limit the use of the Act for some matters that were previously litigated in other jurisdictions under cross‑vesting schemes.

Initial assessment and pleading: Before filing, confirm the statutory thresholds in s 6: at least seven persons with claims that arise from the same, similar or related circumstances and that give rise to a substantial common issue of law or fact. Prepare the originating application to comply with s 11 by describing or otherwise identifying the group, specifying the nature of claims and relief sought, and setting out the common questions of law or fact. Although names and numbers need not be enumerated (s 11(2)), the group descriptor must be sufficiently precise to enable identification in the judgment (s 29).

Standing and representative selection: Ensure the chosen representative party has sufficient interest to commence the proceeding on their own behalf (s 7(1)). Consider whether multiple representative parties are appropriate and whether any potential representative’s claim may cease during the proceeding; s 7(3) preserves standing even if the representative party’s own claim ceases, but substitution mechanics under s 21 should be planned in case of incapacity to represent.

Opt‑out strategy and notice plan: The Court must fix an opt‑out date (s 12(1)); draft a proposed opt‑out schedule and serve it in any originating material seeking case management directions. Prepare compliant notices for events listed in s 25, and seek the Court’s approval of notice content and manner under s 26(1)-(2). Anticipate reliance on non‑personal notice mechanisms where group members are diffuse, and prepare press, broadcast or electronic notice proposals if personal service will be impracticable or unduly expensive (s 26(3)(c); s 26(4)). Ensure notices state the period for action or compliance, especially for settlement approvals and opt‑out windows (s 26(5)-(6)).

Limitation considerations: On commencement, limitation periods for group members’ claims are suspended under s 32(1). Advise group members on the effect of suspension and the scenarios that would restart limitation (s 32(2)), including opting out or final disposition without disposal of their individual claims. Coordinate with clients regarding separate proceedings or preservation steps if the representative proceeding may be terminated or converted.

Discovery of group membership and distribution logistics: Anticipate distribution cost issues. If the relief includes monetary payments, estimate the likely per-member recovery and the cost of identifying and distributing payments. If distribution costs may be disproportionate, be prepared to address an application by the respondent under s 15, and consider early proposals for fund administration or cy‑pres alternatives where appropriate. If the Court orders a fund under s 28, prepare claims forms, entitlement criteria, and a proposed distribution period and final distribution day consistent with s 28(3).

Sub‑group and individual issue planning: When common issues do not finally determine all claims, be ready to propose sub‑group formation under s 18(2) and to identify appropriate sub‑group representative parties. Anticipate the cost consequences that attach to sub‑group representation (s 18(3); s 31). For issues that are individual, assess whether individual members should be permitted to appear and accept that they will bear costs for those appearances (s 19).

Settlement and withdrawal: Any settlement or discontinuance requires Court approval (s 23). If the representative party seeks to settle their own claim, secure leave under s 24 and provide notice to group members in accordance with Part 3. When seeking leave to withdraw as representative party, ensure compliance with s 24(4): notice to group members sufficient to allow them to apply for substitution, and determination of any substitution applications prior to granting leave. Budget for possible leave conditions as to costs (s 24(5)).

Costs and reimbursement: Counsel and clients should structure retainer agreements and funding arrangements with the knowledge that ordinary group members will usually be protected from adverse costs (s 31), but representative parties may be personally liable for costs. If relying on Court reimbursement under s 33, understand that an order can be made only after an award of damages and that the Court must be satisfied the reasonable costs incurred are likely to exceed recoverable costs. Maintain detailed records of costs and prepare submissions to justify any reimbursement application.

Record‑keeping and administration: For any fund ordered under s 28, establish robust claims processing, record retention, and accounting procedures. Records should document entitlement assessments, interest accrual, distribution dates, and any residual amounts. Be prepared to report to the Court and to provide evidence of distribution efforts and costs if required.

Respondent strategy and cost mitigation: Respondents should evaluate early whether the representative route is appropriate. If distribution costs are likely to be excessive relative to monetary relief, consider applying under s 15. If the representative proceeding appears inefficient, explore a s 16 application to discontinue representative status on efficiency grounds. Respondents should also consider the stay power in s 22 if they have commenced separate proceedings against particular group members.

Complying with Court directions: The Court has wide discretionary powers under ss 16, 18, 21, 23, 27 and 34. Parties should anticipate detailed case management timetables and be prepared to respond to requests for information relevant to notice giving (s 26(3)(a)), costs allocations for notice (s 26(3)(b)), and other directions. Seek directions early where the scope of the group is uncertain or where there are multi‑jurisdictional or cross‑vesting complexities.

Drafting submissions on common issues and aggregate assessment: For claims requiring aggregate assessment, prepare expert or econometric evidence where appropriate to support aggregate quantification so that s 27(3) conditions for aggregate awards can be met. If aggregate assessment is not feasible, propose practical methods for individualised assessments to avoid the Court rejecting an aggregate approach.

Monitor rule changes and review timetable: Because the Supreme Court will implement procedural detail through rules under s 35, monitor rule changes and registry practice directions. Also track the statutory review timeline under s 37 so that any systemic issues encountered in practice can be documented for the five‑year review.

In all steps, draft documents to align with statutory requirements and to create a clear, court‑approved record of group identification, notice given, entitlement criteria and costs. This reduces litigation risk and supports enforceability of judgments and distributions under the Act.