Liability for costs when class representatives change in Australia's federal class actions

Abstract

ABSTRACT Unlike most orthodox litigation, class actions bind persons, generally called class members, who are not formal parties to the proceedings. As a result of this unique or sui generis nature of class action litigation, courts presiding over this type of litigation are frequently required to determine issues or questions (a) with respect to which little or no guidance has been provided by both the class action regime in question and the rules of court governing orthodox litigation and (b) that raise competing interests and values and have a significant impact on the ability of class actions to attain crucial aims, such as access to justice, that they were designed to secure. One of the issues or questions that brings to the fore the scenario depicted above is what impact will a change among the class representatives have on the ability of the defendants to recoup some of their legal costs, incurred before the change among their adversaries, if the outcome of the class action is in their favour. This important dimension of class action litigation will be canvassed with respect to Australia's federal class action regime which is one of the world's oldest and most vibrant class action regimes. This evaluation will be undertaken by employing the findings stemming from the first empirical study of this regime, which the author is currently conducting.