To be or not to be [a class action]

Legal Directions

AS v Minister for Immigration and Border Protection [2017] VSC137


Although a class action (or group proceeding) may satisfy the threshold requirements for the commencement of such a proceeding, a Court may during the prosecution of the proceeding determine that it is in the interests of justice that it no longer proceed as a class action.

In a recent decision, Justice Forrest of the Supreme Court of Victoria granted an application brought by the defendants and ordered that the proceeding, commenced in 2014, no longer continue as a class action. He ordered that the lead plaintiff’s claim alone should proceed to trial.


A class action was brought against the Minister and the Commonwealth of Australia by the lead plaintiff, a minor known as ‘AS’, for damages for personal injury alleged to have been suffered while she was detained at the Christmas Island Detention Centre as an unlawful non-citizen. The claim was brought as a class action under Part 4A of the Supreme Court Act 1986 (Vic) on behalf of all persons held at the detention centre between 27 August 2011 and 26 August 2014 who, it was alleged, suffered an injury due to the defendants’ failure to provide reasonable care for their health and wellbeing.

Defendants’ Application

The application by the defendants was brought pursuant to s33N of the Act, which regulates the continuance of a class action. Section 33N provides that a Court may, on an application by the defendant, order that a proceeding no longer continue [as a class action] if it is satisfied that it is in the interests of justice to do so because:

  • the costs that would be incurred if the proceeding continued as a class action are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or
  • all the relief sought can be obtained by means of a proceeding other than a group proceeding; or
  • the group proceeding will not provide an efficient and effective means of dealing with the claims of group members; or
  • it is otherwise inappropriate that the claims be pursued by means of a group proceeding.


Justice Forrest concluded that in this case there was a lack of commonality between the claim of AS and those claims of other group members, and that AS’s claim did not provide an efficient or effective means of dealing with the claims of group members.

His Honour noted that s33C of the Act provides the basis for bringing a group proceeding. That provision requires that seven or more persons have claims against the same person, arising out of the same, similar or related circumstances, giving rise to a substantial common question of law or fact. He stated that a Court will give a liberal interpretation to the requirements of that section. He said that the requirements of s33C and s33N are not to be conflated – provided a claim satisfies s33C, the provisions of s33N (if invoked) then dictate whether it can proceed as a class action.

The issues relied on by Justice Forrest in finding that the proceeding would fail to provide an efficient and effective means of dealing with the claims of group members included:

  • the nature of AS’s claim, being a traditional individual personal injuries claim in negligence which related solely to AS’s treatment;
  • that the circumstances of the determination of each group member is individual – the only common bond between group members in relation to a personal injury claim is their confinement at the Detention Centre;
  • that there was no one tortious offence;
  • that individual issues relevant to breach, causation and damages would need to be examined;
  • that it was impossible to see how the resolution of AS’s claim would resolve any (or, at best, perhaps a few) of the common questions which had been posed;
  • that the pleaded case also failed to identify what systems, guidelines or protocols would be an issue in the trial of AS and may lead to a determination that might apply to other group members;
  • that if there was a finding in AS’s claim of a systems defect, applicable to all detention facilities on the Christmas Island, this would not obviate the need for each group member to prove his or her case on questions of scope of duty, breach and causation.

Justice Forrest also determined that given the nature of the claims of each group member, there would be little, if any, prejudice in granting the defendants’ application.


Before commencing a class action, and when considering the defence of such an action, there should be a careful analysis of not only whether the threshold requirements for the commencement of such an action have been met, but whether any findings which may ultimately be made by the Court at trial have sufficient commonality to apply to group members, or whether the plaintiff’s circumstances are individual. This is particularly in relation to a personal injury negligence claim.

Authored by Greg King, Special Counsel, Melbourne

Related Articles


Legal Directions

Bank of Queensland Ltd v AIG Australia Ltd [2018] NSWSC 1689 Clients of a financial planner had been defrauded in a…

Continue reading

Federal Court affirms an employer’s vicarious liability for fraudulent acts of employees

Legal Directions

Introduction In Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78, the Full Court of the Federal Court…

Continue reading

Insurers win on failure to notify and professional services exclusion in D&O policy

Legal Directions

DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited [2019] NSWSC 527 Babcock and Brown (B&B)…

Continue reading