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This judgment followed on from Bromberg J’s earlier judgment in this matter ([2021] FCA 560), in which his Honour found that the first respondent (Minister), in considering an application for expansion of a coal mine, owed a duty of care to children to avoid causing personal injury by way of climate change. In this judgment, his Honour dealt with three remaining issues, being:

  • whether the proceeding should continue as a representative proceeding (under the old representative proceedings rule in Div 9.2 of the Federal Court Rules 2011 (Cth)) (at [4]-[29]);

  • whether declaratory relief should be granted, and if so, the precise form of the declaration (at [30]-[48]); and

  • costs (at [49]-[57]).

In relation to the first issue, the proceeding was initially commenced as a representative proceeding on behalf of all children throughout the world. However, at trial, the applicants’ claims were only pressed on behalf of children ordinarily resident in Australia. Thus, it was not in dispute that the proceeding ought not continue as a representative proceeding on behalf of children not ordinarily resident in Australia. However, the Minister went further and contended that the proceeding ought not continue as a representative proceeding at all.

His Honour accepted that the Court has a discretion to order that a proceeding no longer continue as a representative proceeding, and that “the Court may exercise that discretion to protect those persons who are represented but not active participants in the proceeding from any potential prejudice to their individual interests which may be brought about by reason of their absence” (at [16]).

The Minister contended, in substance, that because the Court upheld a narrower duty of care than that which had been contended for by the applicants, there would be prejudice to the represented persons, as they would be bound by that finding. Similarly, the applicants contended that because the Court ultimately rejected the applicants’ claim for injunctive relief, the applicants should be permitted to discontinue that part of the application, because otherwise there would be prejudice to the represented persons being bound by that finding. Thus, as his Honour noted (at [22]):

In both instances, what was relied upon to justify a discontinuance or partial discontinuance was the outcome of the proceeding and in particular the applicants’ failure or partial failure to obtain the relief which they had sought on behalf of the Represented Children.

His Honour rejected both parties’ contentions, in substance on the basis that there was no suggestion that the applicants’ failure to obtain the full extent of the relief which they had sought was because the interests of the represented persons were not properly advanced in the proceeding, or because the conduct of the litigation by the applicants on behalf of the represented persons had brought about some prejudice to their interests – the failure was simply due to the lack of merits in the claims. To order, in those circumstances, that the proceeding no longer continue as a representative proceeding was misconceived (at [25]):

If the justifiable exercise of the Court’s discretion to discontinue a representative proceeding was based merely on the potential for a claim or claims made on behalf of represented persons to fail either in part or in whole, the discretion would almost always be exercised and representative proceedings would almost never be permitted to continue. Such an approach would substantially undermine the primary purpose … of avoiding the multiplicity of proceedings or … of facilitating the administration of justice by enabling parties with the same interests to secure a determination in one rather than separate actions.

Further, the applicants and the represented children all had the ‘same interest’ in the relief sought, and there was nothing to suggest that there were circumstances peculiar to individual represented persons that would have produced a different result for them. As such, his Honour concluded that it was appropriate for the proceeding to continue as a representative proceeding.

In relation to the issue of declaratory relief, neither party contended that the Court should not grant declaratory relief, but they were divided as to the form of the appropriate declaration (and in particular, its degree of specificity and the identification of the persons to whom the duty of care is owed). Ultimately, his Honour determined that the following form of declaration was appropriate:

The first respondent has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.

Finally, in relation to costs, his Honour ordered the Minister to pay the applicants’ costs (and in doing so rejected an argument that those costs should be reduced on account of the applicants having failed to obtain all of the relief which they sought, namely, an injunction against the Minister).

Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774

Federal Court of Australia, Bromberg J,  
8 July 2021

Applicants’ Solicitors: Equity Generation Lawyers;
Respondents’ Solicitors: Australian Government Solicitor / Ashurst;
Applicants’ Funder: N/A 

Austlii Link: Accessible here

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