1. Representative proceedings provide access for group members, but at the expense of equality between group members and the named plaintiff. Class actions allow claims to be brought that would otherwise not have been pursued. For instance, cases where each individual claim was not financially valuable enough to warrant a lawsuit, or claims where group members were significantly disadvantaged – such as the Manus Island Detention Centre action. This has given better access to parties who would otherwise have been shut out of formal legal proceedings. Group members are also insulated from adverse costs orders and legal fees, and do not have to take part in pre-trial proceedings or in the trial itself. This gives people the opportunity to assert their legal rights even if they do not have the time, money or knowledge to actively pursue a case. These burdens fall on the named plaintiff, though – they are responsible for costs, and they have to participate in discovery and court proceedings. They do not share an equal burden to the group members, but do not receive any additional compensation because of it.
2. Representative proceedings provide access to large numbers of people in a way not achieved by individual supports such as Legal Aid. Class actions allow claims to be brought that would otherwise not have been pursued. For instance, cases where each individual claim was not financially valuable enough to warrant a lawsuit, or claims where group members were significantly disadvantaged – such as the Manus Island Detention Centre action. This has given better access to parties who would otherwise have been shut out of formal legal proceedings. Access is seriously diminished for the named plaintiff, however. The named plaintiffs receive the brunt of the media coverage, and they must participate in the pre-trial and trial process: they instruct the solicitors, engage in discovery, attend conferences, and often give evidence at trial. The named plaintiffs are nominally responsible for all costs and possible adverse costs awards (unless insulated from them by a litigation funding agreement or group costs order, for instance), and receive no additional share of the compensation in return. This puts them on unequal footing with the group members, and can discourage their access.