Recent Cases

Minister for the Environment v Sharma [2022] FCAFC 35 (15 March 2022) (Allsop CJ, Beach and Wheelahan JJ)


NEGLIGENCE – representative proceeding on behalf of Australian children under 18 against the Minister for the Environment – threat of global warming and climate change to the world and mankind – novel duty of care – declaration that Minister owed Children duty of care when exercising power under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to approve or not approve extension of a coal mine to take reasonable care to avoid causing personal injury or death arising from emissions of carbon dioxide and subsequent global warming – declaration of duty disaggregated from breach and damage – nature of and correct approach to salient features analysis – whether sufficient relationship of neighbourhood between Minister and Children under the EPBC Act – duty of care analysis must begin with relevant statute – purpose and scope of EPBC Act and nature of statutory power in context of the inter-governmental arrangements for protection of environment in Australia – whether duty of care throws up for consideration at breach matters unsuitable for judicial determination – whether duty concerns matters of “core policy” – operational/policy distinction – nature of coherence within the law of negligence –whether duty is incoherent with the Minister’s statutory discretion under the EPBC Act – whether relevant harm reasonably foreseeable – nature of relationship between reasonable foreseeability and causation – consideration of law of causation in Australia – whether sufficient closeness and directness between Minister’s statutory power and the likely risk of harm to respondents and members of class – consideration of Minister’s control, responsibility and knowledge in relation to foreseeable harm – extent of children’s legal vulnerability to feared harm from exercise of Minister’s statutory power – parens patrie jurisdiction – whether potential liability indeterminate

NEGLIGENCE – challenge to five findings of fact by primary judge concerning catastrophic risks of global warming caused by greenhouse gas emissions – where findings based on unchallenged expert evidence led on a final basis – where Minister made forensic decision not to cross-examine expert or lead responsive evidence – factual findings open on unchallenged evidence

STATUTORY INTERPRETATION – whether human safety is an implied relevant mandatory consideration for exercise of power under ss 130 and 133 of the EPBC Act – mandatory consideration not supported by text, context or purpose of EPBC Act