Commonwealth Numbered Acts

LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1993 No. 13 of 1994 - SECT 11

11. Sections 38 and 39 of the Principal Act are repealed and the following
sections are substituted: Conditions for making a representative complaint

"38.(1) A representative complaint may be lodged under section 36 only if:

   (a)  the class members have complaints against the same person; and

   (b)  all the complaints are in respect of, or arise out of, the same,
        similar or related circumstances; and

   (c)  all the complaints give rise to a substantial common issue of law or
        fact.

"(2) A representative complaint under section 36 must:

   (a)  describe or otherwise identify the class members; and

   (b)  specify the nature of the complaints made on behalf of the class
        members; and

   (c)  specify the nature of the relief sought; and

   (d)  specify the questions of law or fact that are common to the complaints
        of the class members. In describing or otherwise identifying the class
        members, it is not necessary to name them or specify how many there
        are.

"(3) A representative complaint may be lodged without the consent of class
members. Commissioner may determine that a complaint is not to continue as a
representative complaint

"38A.(1) The Commissioner may, on application by the respondent or on his or
her own initiative, determine that a complaint should no longer continue as a
representative complaint.

"(2) The Commissioner may only make such a determination if the Commissioner
is satisfied that it is in the interests of justice to do so for any of the
following reasons:

   (a)  the costs that would be incurred if the complaint were to continue as
        a representative complaint are likely to exceed the costs that would
        be incurred if each class member lodged a separate complaint;

   (b)  the representative complaint will not provide an efficient and
        effective means of dealing with the complaints of the class members;

   (c)  the complaint was not brought in good faith as a representative
        complaint;

   (d)  it is otherwise inappropriate that the complaints be pursued by means
        of a representative complaint.

"(3) If the Commissioner makes such a determination:

   (a)  the complaint may be continued as a complaint by the complainant on
        his or her own behalf against the respondent; and

   (b)  on the application of a person who was a class member for the purposes
        of the former representative complaint, the Commissioner may join that
        person as a complainant to the complaint as continued under paragraph
        (a). Additional rules applying to the determination of representative
        complaints

"38B.(1) The Commissioner may, on application by a class member, replace the
complainant with another class member, where it appears to the Commissioner
that the complainant is not able adequately to represent the interests of the
class members.

"(2) A class member may, by notice in writing to the Commissioner, withdraw
from a representative complaint at any time before the Commissioner begins to
hold an inquiry into the complaint.

"(3) The Commissioner may at any stage direct that notice of any matter be
given to a class member or class members. Amendment of representative
complaints

"38C. If the Commissioner is satisfied that a complaint could be dealt with as
a representative complaint if the class of persons on whose behalf the
complaint is lodged is increased, reduced or otherwise altered, the
Commissioner may amend the complaint so that the complaint can be dealt with
as a representative complaint. Class member for representative complaint not
entitled to lodge individual complaint

"39. A person who is a class member for a representative complaint is not
entitled to lodge a complaint in respect of the same subject matter.".