Application for an order relating to the procedure to be followed in a representative proceeding (Rule 9.35(1)) (Form 22)

Part IVA of the Federal Court of Australia Act 1976 governs representative proceedings (class actions). Rule 9.35 of the Federal Court Rules 2011 says a party may apply for an order under section 33K, 33W, 33X or 33ZA of the Act in accordance with Form 22, and must file an affidavit stating the identity and whereabouts of the group members and the means by which a notice is most likely to come to their attention. Section 33K covers amending the group description to include people whose claims accrued after the proceeding began; section 33W covers settlement of the representative party's individual claim and withdrawal as representative; section 33X covers notices to group members; and section 33ZA covers the constitution of a fund for distribution.

When you need it

• The representative party wants leave to amend the group description to include later-accruing claims (s 33K).
• The representative party wants leave to settle their own claim or to withdraw as representative party (s 33W).
• A party needs orders about notice to group members, such as the opt-out notice or notice of a settlement approval application (s 33X).
• Orders are sought for the constitution and administration of a fund for distribution to group members (s 33ZA).

1. 1

   Heading and addressees

   Copy the proceeding heading and name each party who may be affected in the 'To' line. State the applying party's role.

2. 2

   Leave hearing details blank

   The Registry inserts the time, date and place, and any order abridging time for service.

3. 3

   Identify the section and orders

   Choose section 33K, 33W, 33X or 33ZA of the Federal Court of Australia Act 1976 and specify the orders sought, for example the form of a notice and how it is to be given.

4. 4

   Address and service

   Give the applying party's address for service and residential or business address, and choose the service option. Date and sign as the party or lawyer.

• File Form 22 with an affidavit stating the identity of the group members, their whereabouts, and the means by which a notice is most likely to come to their attention (r 9.35(2)).
• File through eLodgment and serve on the parties who may be affected. The Court decides who gives a notice and how it is given (s 33Y).
• A filing fee may apply. Check the Court's current fee schedule.

• The form and content of any notice must be approved by the Court (s 33Y(2)), so it helps to put a proposed notice before the Court with the application.
• Before granting leave to withdraw as representative party, the Court must be satisfied group members were notified in time to apply for a substitute (s 33W(4)).
• Read the Class Actions Practice Note (GPN-CA) for the Court's expectations on opt-out and settlement notices.