Document ID: chunk:federal_register_of_legislation:C2004A04689:section:1992:p5
Version: federal_register_of_legislation:C2004A04689
Segment Type: section
Provision Reference: s 1992 (pt 5/18)
Character Range: 11220–14043

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