Replacing Inadequate Class Representatives in Federal Class Actions: Quo Vadis?

In Canada and the United States, the ability to bring a class action is dependent on establishing to the satisfaction of the court that, among other things, the aspiring class representatives will fairly and adequately represent the interests of the class members. No such requirement is imposed on class representatives in Australia by the regimes that authorise and govern class actions in the Federal Court of Australia, the Supreme Court of Victoria and the Supreme Court of New South Wales. But trial judges presiding over class action litigation are expressly empowered to order the substitution of a class representative with another class member where, following the filing of an application by one or more class members, they make the finding that the class representative is not able adequately to represent the interests of the class members. Despite the unique nature of the mechanisms that operate in Australia to regulate the adequacy of the representation of the interests of absent class members provided by class representatives and the importance of this dimension of class action litigation, the operation of these mechanisms has not been the subject of critical analysis. The aim of this article is to redress this significant lacuna in the jurisprudence on Australian class actions by employing the data and findings that have emerged from the author’s empirical study of federal class actions to provide a critical evaluation of the operation, during its first 22 years, of the federal mechanism for replacing inadequate class representatives.