Key points
- The common issue requirement comes from s33C(1)(c) of the Federal Court of Australia Act 1976.
- The issue must be substantial — not trivial or peripheral to the overall claims.
- Not every element of each claim needs to be common — individual issues are resolved separately later.
- A court can create subgroups when different groups of members share distinct common issues.
- The lead applicant’s lawyers must clearly identify and plead the common issues in the statement of claim.
Examples of common issues
Common issues can arise from:
- Whether a defendant’s product was defective — a factual issue common to all purchasers
- Whether a company’s disclosure was misleading — a legal question common to all investors who bought shares in the relevant period
- Whether a superannuation fund charged excessive fees — common to all members of the same product
- Whether a data breach breached APP 11 — common to all whose data was exposed in the same incident
Individual issues — resolved separately
After common issues are resolved at trial, individual issues (such as the amount of loss each group member suffered) are dealt with separately. This may happen through a subgroup trial, an individual claims assessment process, or as part of settlement distribution. Courts design this process to minimise cost and delay.
What happens if no common issue exists?
If a court finds that the claims do not share a genuine common issue — or that individual issues overwhelm the common elements — it may decertify the class action. This is rare but does occur. Affected group members would then need to pursue individual claims, or wait for restructured proceedings.
This article is general information only and does not constitute legal advice. ClassActions.com.au is an independent information service and is not a law firm. If you believe you may have a legal claim, consult a qualified Australian legal practitioner.