Minister for the Environment v Sharma
[2022] FCAFC 35
•15 March 2022
FEDERAL COURT OF AUSTRALIA
Minister for the Environment v Sharma [2022] FCAFC 35
SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.
The appeal concerns the orders made by the primary judge declaring that the Commonwealth Minister for the Environment owed a duty of care at common law when exercising her power under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to consider and approve an extension of a coal mine in New South Wales. The duty was expressed to require the Minister to take reasonable care to avoid causing personal injury or death to all people in Australia under 18 years of age at the time of the commencement of the proceeding arising from the emissions of carbon dioxide into the Earth’s atmosphere from the combustion of the coal to be mined in the extension of the mine. In so finding such a duty of care the primary judge also found that human safety was an implied mandatory consideration in the making of the decision.
The respondents to the appeal, the applicants below, did not seek to support the primary judge’s conclusion that human safety was a mandatory consideration in the making of the decision.
As to the posited duty of care, the Full Court is unanimous in the view that the duty should not be imposed upon the Minister. The three judgments of the Court have different emphases as to why this conclusion should be reached. Before summarising the central reasoning of each member of the Court some comment is appropriate as to the hearing of the matter before the primary judge.
A substantial body of evidence was led by the applicants about climate change and the dangers to the world and humanity, including to Australians, in the future from it. None of the evidence was disputed. There was no cross-examination of any witness brought by the applicants by those acting for the Minister, and there was no contrary or qualifying evidence led by the Minister.
In a detailed and comprehensive judgment, the primary judge analysed the factual material closely and thoroughly. The Minister submitted that some of the primary judge’s findings were incorrect and reached beyond the evidence. The Court is unanimously of the view that these complaints are unfounded. All of the findings of the primary judge were open to be made on the uncontested evidence before his Honour.
The Chief Justice is of the view that the duty should not be imposed for a number of reasons. First, the content and scope of the duty would call forth at the point of assessment of breach the need to re-evaluate, change or maintain high public policy, the assessment of which is unsuited to decision by the judicial branch in private litigation. Secondly, the imposition would be incoherent and inconsistent with the decision-making in question under the EPBC Act according to its terms, as understood in its context as part of Commonwealth and State responsibilities for the protection of the environment. Thirdly, taken in conjunction with these two matters, the lack of control over the harm (as distinct from over the tiny contribution to the overall risk of damage from climate change), a lack of special vulnerability in the legal sense, the indeterminacy of liability and the lack of proportionality between the tiny increase in risk and lack of control and liability for all damage by heatwaves, bushfires and rising sea levels to all Australians under the age of 18, ongoing into the future, mean that the duty in tort should not be imposed.
Justice Beach is also of the view that the duty should not be imposed. His Honour has given emphasis to two factors in support of that conclusion. First, in his Honour’s view there is not sufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm to the respondents and the class that they represent. Secondly, to impose a duty would result in indeterminate liability. As for the other matters argued by the Minister, in his Honour’s view none of them individually or collectively warrant not recognising the duty found by the primary judge.
Justice Wheelahan is of the view that no duty of care arises for three main reasons. The first is that the EPBC Act does not erect or facilitate a relationship between the Minister, and the respondents and those whom they represent, that supports the recognition of a duty of care. In particular, his Honour is of the view that the control of carbon dioxide emissions, and the protection of the public from personal injury caused by the effects of climate change, were not roles that the Commonwealth Parliament conferred on the Minister under the EPBC Act. Secondly, his Honour is of the view that it would not be feasible to establish an appropriate standard of care, with the consequence that there would be incoherence between the suggested duty and the discharge of the Minister’s statutory functions. Thirdly, his Honour is not persuaded that it is reasonably foreseeable that the approval of the extension to the coal mine would be a cause of personal injury to the respondents or those whom they represent, as the concept of causation is understood for the purposes of the common law tort of negligence.
Before making final orders disposing of the appeal, the Court proposes to give the parties an opportunity to consider the position of the represented parties and to address the issue of costs.
CHIEF JUSTICE ALLSOP
JUSTICE BEACH
JUSTICE WHEELAHAN15 March 2022
FEDERAL COURT OF AUSTRALIA
Minister for the Environment v Sharma [2022] FCAFC 35
Appeal from: Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560
Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774
File number: VID 389 of 2021 Judgment of: ALLSOP CJ, BEACH AND WHEELAHAN JJ Date of judgment: 15 March 2022 Catchwords: 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
Legislation: Constitution
Australian Capital Territory (Self-Government) Act 1988 (Cth)
Australian National Registry of Emissions Units Act 2011 (Cth)
Australian Renewable Energy Agency Act 2011 (Cth)
Clean Energy Act 2011 (Cth) (repealed)
Clean Energy Finance Corporation Act 2012 (Cth)
Clean Energy Legislation (Carbon Tax Repeal) Act 2014 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Greenhouse and Energy Minimum Standards Act 2012 (Cth)
Judiciary Act 1903 (Cth)
National Greenhouse and Energy Reporting Act 2007 (Cth)
Product Emissions Standards Act 2017 (Cth)
Federal Court Rules 2011 (Cth)
Civil Law (Wrongs) Act 2002 (ACT)
Civil Liability Act 2002 (NSW)
Crown Proceedings Act 1988 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Australian Capital Territory (Self-Government) Regulations 2021 (Cth)
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW)
State Environmental Planning Policy (State and Regional Development 2011 (NSW)
Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1998
Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005)
United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement 2015
United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994)
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Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 888 Date of last submissions: 29 October 2021 Date of hearing: 18 – 20 October 2021 Counsel for the Appellant: Dr S Donaghue QC (Solicitor-General of the Commonwealth) with Mr S Free SC and Ms Z Maud Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondents: Mr N Hutley SC with Mr E Nekvapil, Ms K Brazenor, Ms S Brenker and Mr N Petrie Solicitor for the Respondents: Equity Generation Lawyers
ORDERS
VID 389 of 2021 BETWEEN: MINISTER FOR THE ENVIRONMENT (COMMONWEALTH)
Appellant
AND: ANJALI SHARMA AND OTHERS NAMED IN THE SCHEDULE (BY THEIR LITIGATION REPRESENTATIVE SISTER MARIE BRIGID ARTHUR)
Respondents
ORDER MADE BY:
ALLSOP CJ, BEACH AND WHEELAHAN JJ
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Before the Court makes orders setting aside orders 1 and 3 made by the primary judge on 8 July 2021 and dismissing the application, the parties should seek to agree further orders necessary to give effect to these reasons for judgment, including any appropriate orders concerning represented parties and as to costs.
3.Within 14 days, the parties file and serve brief written submissions annexing proposed short minutes of order dealing with costs and any further necessary or appropriate order.
4.Final orders will then be determined on the papers and without a further oral hearing, unless a party objects to such a course in writing to the Chambers of the Chief Justice in which case the Court will consider the need for any further hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
Introduction
The threat of climate change and global warming was and is not in dispute between the parties in this litigation. The seriousness of the threat is demonstrated by the attention given to it by many countries around the world, and the attempts made by them to reach agreement and to co-operate to reduce the emission of carbon dioxide and other greenhouse gases in order to reduce the rate of increase of the Earth’s surface temperature. Those steps of international diplomacy and international co-operation in scientific matters, including research, have had the consequence that many countries and constituent political parts of countries have adjusted national and regional policy to meet the recognised threat. The debate over the appropriate steps to take at a national and international level has not been without its international and national political controversy.
At the outset it is important to appreciate the nature of the proceeding and the basis upon which the case was fought. The evidence led by the respondents (applicants before the primary judge) was not challenged by the appellant, whether by cross-examination or by the leading of contrary or supplementary evidence. This is a matter of some importance. It should not be seen merely as a strategic or tactical choice in a piece of inter partes litigation. This was not a demurrer procedure where the applicants’ case was to be taken at its highest for the purposes of striking out the claim. Evidence was led, on a final basis. Some objections were taken and ruled upon. There was no cross-examination. The appellant is the Minister for the Environment. The Minister is not any litigant. She is the Minister of the Commonwealth responsible, with her Department, for the very type of issue with which the Court was concerned and to which the evidence was directed. There are challenges to some of the primary judge’s findings (which should be rejected), but, by and large, the nature of the risks and the dangers from global warning, including the possible catastrophe that may engulf the world and humanity was not in dispute.
The Minister is responsible for decision-making under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act or the Act). In the discharge of these responsibilities, the Minister is responsible to Parliament (and thereby the Australian people) for the decisions made and the policies implemented in the execution of the laws of the Parliament. The Minister’s decision-making is also subject to judicial review by the courts (the High Court of Australia under s 75(v) of the Constitution and the Federal Court of Australia under, at least, s 39B(1) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth)) for the legality of the decision-making, and of the decisions made, by her. That simple, but basal, structure of responsible and representative parliamentary democracy in which the Executive is subject to the rule of law rooted in s 75(v) of the Constitution and is responsible to the Australian people through Parliament is an important part of the context for the claim. That claim is that apart from, indeed quite distinct from, the subjection to scrutiny for the lawfulness of the decision, the Minister has a personal duty, for breach of which she (and also the Commonwealth), may be found to be personally liable in damages, to take reasonable care, in the execution of her particular duties, powers and functions under ss 130 and 133 of the EPBC Act to avoid causing personal injury or death to all persons who were less than 18 years of age and ordinarily resident in Australia at the time of the commencement of the proceeding in this Court arising from emissions of carbon dioxide into the Earth’s atmosphere. Further, in so finding such a duty of care, the primary judge concluded that human safety was a distinct implied mandatory consideration in the decision about a controlled action that might endanger human safety, to be implied from the subject matter, scope and purpose of the EPBC Act.
In setting out at the outset the basic constitutional position of the Executive and the role of the Judiciary in pronouncing upon the legality of Executive decision-making, the potential liability of the Commonwealth and its officers in tort is to be recognised, as it is by s 75(iii) of the Constitution. Section 64 of the Judiciary Act recognises that in a suit to which the Commonwealth or a State is a party the rights of parties shall as nearly as possible be the same as in a suit between subject and subject. The law of torts applies to Ministers and the Commonwealth, as much as it applies to ordinary persons or companies. The “aspiration to equality” in s 64 (to use the words of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at 556 [12]) recognises within itself that “perfect equality is not attainable”: Gleeson CJ (in the same paragraph)). The nature and responsibilities of government are relevant to the operation of legal principle, here in determining whether a duty of care to avoid personal injury or death is to be recognised. The subjection of governments and public authorities, including Ministers of the Crown, to the rule of law encompasses not only the requirement of legality under s 75(v) of the Constitution, but also liability for tortious wrongs ascertained in accordance with the application of principle under the common law.
The EPBC Act takes its place within the federal structure under which the Commonwealth and the States and Territories have co-ordinate, and to a degree overlapping, responsibility and authority in relation to the environment. The EPBC Act, for its own part, is founded in significant part on the translation of international agreements into Commonwealth law. In this regard, it is important to keep in mind that there has been no attempt by the Commonwealth Parliament to translate those international agreements concerning climate change, in particular the Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005) or the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement 2015 (Paris Agreement) into Commonwealth law. In 2011, Parliament did legislate in relation to climate change issues, the central component being the Clean Energy Act 2011 (Cth). This legislation was repealed on 1 July 2014: Clean Energy Legislation (Carbon Tax Repeal) Act 2014 (Cth). See also the National Greenhouse and Energy Reporting Act 2007 (Cth); Australian National Registry of Emissions Units Act 2011 (Cth); Australian Renewable Energy Agency Act 2011 (Cth); Clean Energy Finance Corporation Act 2012 (Cth); Greenhouse and Energy Minimum Standards Act 2012 (Cth); and Product Emissions Standards Act 2017 (Cth).
Before the time of the hearing of the appeal, but after the primary judge’s decision and orders, the Minister made a decision and granted approval. There was discussion at the hearing as to whether the Court should receive the decision and any reasons. This course was opposed by the respondents. The Court did not receive this material.
The conclusion of the appeal in summary form
For the reasons that follow the Minister’s appeal against the imposition of a duty of care in the terms articulated and against the conclusion that human safety was an implied mandatory statutory consideration should be upheld. The latter implication cannot be derived from the EPBC Act. The primary judge’s conclusions in this respect were not sought to be supported by the respondents. The imposition of the duty should be rejected. First, the posited duty throws up for consideration at the point of breach matters that are core policy questions unsuitable in their nature and character for judicial determination. Secondly, the posited duty is inconsistent and incoherent with the EPBC Act. Thirdly, considerations of indeterminacy, lack of special vulnerability and of control, taken together in the context of the EPBC Act and the nature of the governmental policy considerations necessarily arising at the point of assessing breach make the relationship inappropriate for the imposition of the duty. These conclusions reflect differences of view that I have with the evaluative judgments of the primary judge in a field of contention, the imposition of a duty of care in novel circumstances, that is not without difficulty. The primary judge considered and dealt with the arguments of the respondents and the Minister in a careful, thorough and clear body of reasons.
The duty and its framing and its calling forth core policy-making and considerations unsuitable for resolution by the Judicial branch of government
In their application at [2] and their concise statement at [22] the respondents sought to express the posited duty at a high level of abstraction: Whether the Minister owed the respondents and the children whom they represented a duty to exercise the power under ss 130 and 133 of the EPBC Act with reasonable care not to cause the respondents harm. The duty was said to arise out of positive action, not omission. Expressed at that high level of abstraction and divorced from concrete facts and referable to any decision under ss 130 and 133 it can be seen to be of little assistance. A postulated duty of care must be stated by reference to the kind of damage that a plaintiff will suffer: John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218 at 241–242 (Brennan J); Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 487 (Brennan J); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 262–263 [13]–[16] (Gleeson CJ); Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at 472–473 [1] (Gleeson CJ); see also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 345 [43]–[44] (Gummow J) and Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at 71 [47] (the Court).
The scope and content of the duty was illuminated by the expression of its anticipated breach in the concise statement at [23]: To exercise reasonable care not to cause the applicants harm by acting in a manner that materially contributes to increasing the minimum level at which carbon dioxide concentration can flatten. That expression of the matter, taken with the balance of the concise statement and the uncontested evidence presented, informs one that the duty concerns acting in connection with an approval of the extension of a coal mine in the light of the risks of global temperature warming and the consequent risks of harm to humans in the future caused by climate change, by not just the mining and transportation of the coal, but also by the emissions from the combustion of the coal mined from the extension of the mine.
The declaration made by the primary judge was in the following terms:
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.
That expression of the duty omits the express reference to “the material contribution to increasing the minimum level at which [carbon dioxide] concentration can flatten”. The primary judge’s reasons, however, demonstrate that such consideration is embedded within the duty declared and that such matter will be the very subject thrown up for consideration at the point of breach. Further, the duty as expressed in [23] of the concise statement, and the duty declared, is based on the evidence of the contribution of mining the coal to carbon dioxide emissions, not only by the activity of mining and transportation, but also by its combustion. This latter point becomes important as necessarily raising question of policy concerning so-called “Scope 3” emissions to which I will come.
The appropriate level of abstraction or focal length of perspective for the proper articulation of the scope and content of the duty is by reference to the whole of the asserted cause of action. As Brennan J said in John Pfeiffer v Canny 148 CLR at 241–242:
His duty of care is a thing written on the wind unless damage is caused by the breach of that duty; there is no actionable negligence unless duty, breach and consequential damage coincide … For the purposes of determining liability in a given case, each element can be defined only in terms of the others.
(emphasis added)
As Gleeson CJ said in Cole 217 CLR at 472–473 [1]:
The appellant, having suffered personal injuries, claims that the first respondent is liable to her in damages for negligence … In the circumstances of this case, it is of little assistance to consider issues of duty of care, breach, and damages, at a high level of abstraction, divorced from the concrete facts. In particular, to ask whether the respondent owed the appellant a duty of care does not advance the matter. Before she was injured, the appellant was for some hours on the respondent’s premises, and consumed food and drink supplied by the respondent. Of course the respondent owed her a duty of care. There is, however, an issue concerning the nature and extent of the duty. To address that issue, it is useful to begin by identifying the harm suffered by the appellant, for which the respondent is said to be liable, and the circumstances in which she came to suffer that harm ... As Brennan J said in Sutherland Shire Council v Heyman, ‘‘a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered’’. The kind of damage suffered is relevant to the existence and nature of the duty of care upon which reliance is placed. Furthermore, a description of the damage directs attention to the circumstances in which damage was suffered. ‘‘Physical injury’’, or ‘‘economic loss’’, may be an incomplete description of damage for the purpose of considering a duty of care, especially where, as in the present case, the connection between the acts or omissions of which a victim complains and the damage that she suffered is indirect.
(emphasis added, footnotes omitted)
The importance of the articulation of the nature and extent or scope and content of the posited duty (here, illuminated by [23] of the concise statement and by the declaration made) is that, if one posits the duty by reference to the asserted breach and the closely related evidence led to reveal the risk of harm, in order to decide the questions of the existence of the duty and of breach one is necessarily taken to consider all the evidence, material, policy and other considerations that attend the decision and that involve the question of the proper response to, including the adequacy of governmental policy in relation to, the risks of the emissions from the combustion of the coal mined as part of the worldwide risks of global warming and climate change. If one leaves the duty expressed at the high level of abstraction in [2] of the application or [22] of the concise statement one might well respond: Yes of course, but what are the circumstances? Possibly (though the Minister’s submissions contest the proposition) there could be a duty upon the Minister faced with the question of an approval of a mine of some description or of some other controlled action near a centre of urban population to exercise reasonable care for the health and safety of the nearby residents in exercising the power to approve or not approve the mine or controlled action, and if the former, on what conditions. Considerations and dangers in such a case might be so direct, so well understood, so immediately proximate, and attended by considerations in respect of which the court was entirely suited to adjudicate.
The question of duty is not to be placed at such a level of abstraction or generalisation as to elicit such an unhelpful response as yes, but depending on the facts, thereby leaving the real controversy and contest to breach. The duty here, however, is framed by reference to contributing to carbon dioxide emissions into the atmosphere by the combustion of the coal mined. That duty throws up for consideration at the point of assessing breach the question of the proper policy response to climate change and considerations unsuitable for resolution by the Judicial branch of government. In particular, the duty throws up at the point of assessing breach the question whether, and if so, how so-called Scope 3 emissions from the combustion of the coal that is to be exported should be or should have been taken into account in making a decision about whether to approve the extension of a coal mine, when the statutory focus and concern of the decision is the protection of identified species and communities of fauna and water resources. A duty that calls up such questions should not be imposed: It is one of core, indeed high, policy-making for the Executive and Parliament involving questions of policy (scientific, economic, social, industrial and political) which are unsuitable for the Judicial branch to resolve in private litigation by reference to the law of torts and potential personal responsibility for indeterminate damages, if harm eventuates in decades to come.
Later in these reasons, I will refer to other parts of the judgment of Gleeson CJ and of other members of the High Court in Graham Barclay Oysters 211 CLR 540. It is appropriate, however, at the outset to set out what the Chief Justice said at 553–554 [6], which is, in my view, the central framing consideration in this case that transcends any distinction between acts and omissions:
Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature.
The central error of the primary judge, in my respectful view, was to marginalise such questions and considerations as a miscellaneous control mechanism and as not relevant (see J[474]–[485]), and to construct the duty by individual analysis of salient features commencing with the risk of harm, assuming the matters thrown up by the duty were suitable for judicial determination as in any other tort case. That was the approach urged on his Honour and on this Court by the submissions of the respondents (applicants below). The submissions went so far (at least before us) that, it was said, to hold that the duty should not be imposed because it raised core policy-making and involved considerations unsuitable for judicial determination would be to abrogate judicial responsibility under Chapter III of the Constitution to quell controversies between subject and government and to introduce a “political question” doctrine foreign to Australian Constitutional government and the rule of law within it. That submission should be rejected by reference to cases of the highest binding authority. That which follows, especially [206]–[272] and [291]–[293], is an elaboration and explanation of the above. The immanent and central proposition for the existence of a duty of care, based on the central thesis of Professor Steffen, is that science dictates that for the Minister not to endanger the Children requires a re-evaluation and change to any government policy on climate change that remains fixed within the parameters of the Paris Agreement and the treatment of Scope 3 emissions.
The structure of these reasons
I approach the explanation of why the posited duty of care should not be imposed by dealing with the following:
The immediate factual context of the decision of the Minister: [19]–[42]
The statutory framework of the decision of the Minister: [43]–[92]
The legislative context of the EPBC Act: [93]–[98]
The reasons of the primary judge: [99]–[176]
The Minister’s grounds of appeal and submissions: [177]–[187]
The respondents’ submissions: [188]–[205]
Consideration and determination: [206]–[346]
Introduction: [206]–[213]
Grounds 2(a) and (b): human safety is not an implied mandatory consideration in the EPBC Act: [214]–[217]
The relationship between the Minister and the respondents and the class: [218]–[232]
The EPBC Act, core policy and incoherence: grounds 1 and 2(c): [233]–[272]
Challenge to the factual findings in ground 5: [273]–[290]
Coda to ground 5: [291]–[293]
The law of negligence: reasonable foreseeability and causation, control, vulnerability and reliance, and indeterminacy: grounds 3 and 4: [294]–[343]
Conclusion: [344]–[346]
Orders: [347]
The immediate factual context of the decision of the Minister
Vickery Coal Pty Ltd is a subsidiary of Whitehaven Coal Pty Ltd which holds development consent under the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) for a coal mine in northern New South Wales near Gunnedah. No mining has commenced under the approval. In February 2016, Whitehaven applied under s 68 of the EPBC Act to the Minister to expand the existing approved project for coal mining. In July 2018, Vickery replaced Whitehaven as the proponent for the application. The extension of the mine would increase total coal extraction from the mine from 135 million to 168 million tonnes (Mt), that is by 33 Mt which, when combusted, would produce 100 Mt of carbon dioxide (CO2).
The application for an extension will not only increase the total coal extracted from the mine, but also increase the rate of extraction from 4.5 to 10 Mt per year, increase the area of land disturbed by mining, and there will be a new coal handling and preparation plant and rail facility at the site. The extension project itself will cause directly or indirectly emissions of greenhouse gases, especially CO2.
The Minister came to be concerned with the approval of the extension of the mine because on 14 April 2016 a delegate of the Minister determined that the extension of the mine was a “controlled action” under s 75(1) of the EPBC Act. The delegate decided that the relevant controlling provisions were ss 18 and 18A concerned with listed threatened species and communities and ss 24D and 24E concerned with a water resource, in relation to coal seam gas development and large coal mining development. The assessment approach was to be under the bilateral agreement with New South Wales, an approach provided for by the EPBC Act. The initial project had been approved as a “State Significant development” under the EPA Act and a delegate of the Minister had determined that it was not a “controlled action” under s 75. So the initial project being a little over four times larger than the extension did not involve the Minister under the EPBC Act.
As a consequence of the extension of the mine being a controlled action, the Minister was required to approve or not approve the application under ss 130(1) and 133 of the EPBC Act. The duty was binary: to approve or not, though, as will be seen, there was a power to attach some conditions. The EPBC Act requires that prior to that approval the matter be assessed. One method of assessment provided for by the EPBC Act (used in this case) was pursuant to bilateral agreement with the relevant State, here New South Wales. In May 2020, the New South Wales Department of Planning, Industry and Environment (the NSW Department) provided its assessment report to the Independent Planning Commission of New South Wales (the IPC), in the context of the Minister for Planning and Public Spaces (the State Minister) directing the IPC (under s 2.9(1)(d) of the EPA Act) to conduct a further public hearing concerning the extension of the mine with particular attention to the assessment report and any relevant public submissions. In August 2020, the IPC, after conducting a further public hearing as directed, granted development consent for the extension project. The report of the department and the reasons in the report of the IPC were provided to the Minister.
The IPC received a significant body of evidence during the public hearing, including a report of Professor Steffen that was in substantial accordance with the evidence led before the primary judge.
The two reports (of the NSW Department and the IPC) were prepared under the relevant State legislation, primarily the EPA Act. Under that statutory framework it was mandatory for the NSW Department and IPC to consider the question of greenhouse gases, including under the framework of the public interest: see s 4.15(1)(e) of the EPA Act. As discussed below, there is nothing in the EPBC Act which required the Minister to consider greenhouse gas emissions or global warming or climate change. The Minister’s necessary statutory focus was on the considerations concerned with listed threatened species and communities and the water resource in question. An approval of the extension would have greenhouse gas emissions consequences as discussed below, but they did not bear directly or indirectly upon the matters to which the Minister was directed by the EPBC Act. They did, however, bear directly upon the decision of the State Minister and upon the reports of the NSW Department and of the IPC.
The extension of the mine, being a development for the purpose of mining, was a “State significant development” under New South Wales legislation (s 4.36 of the EPA Act, as specified by cl 8 and cl 5 of Sch 1 of the State Environmental Planning Policy (State and Regional Development 2011 (NSW) (the SRD SEPP)). Pursuant to s 4.38 of the EPA Act, a consent authority is required either to grant (with or without modifications or conditions) or refuse consent to a development application concerning a State significant development. By operation of s 4.5(a) of the EPA Act and cl 8A(1)(b) of the SRD SEPP (due to over 50 public submissions objecting to the extension being provided to the NSW Department), the IPC became the designated consent authority. Under s 4.6(b) of the EPA Act, certain functions of the IPC are to be exercised by the Planning Secretary, including “undertaking assessments of the proposed development”, which provided the basis for the NSW Department preparing the assessment report for the IPC.
Unlike the requirements imposed on the Minister under the EPBC Act, the IPC as the consent authority (and as is reflected in the NSW Department’s report and the IPC’s reasons) was required specifically to consider the impact of the extension of the mine on greenhouse gas emissions and the risks to the environment and human consequences thereof. The evaluative task imposed by s 4.15 (applicable by operation of s 4.40) required the IPC to consider, among other things: the likely “environmental impacts on both the natural and built environment” (s 4.15(b)); the public interest (s 4.15(e)) (which requires consideration of the relevant objects of the EPA Act, including promoting the social and economic welfare of the community and a better environment (s 1.3(a)) and the principle of ecologically sustainable development (s 1.3(b))); and the provisions of any applicable environmental planning instrument (s 4.15(1)(a)(i)), which includes the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) (the Mining SEPP). The Mining SEPP specifically required the IPC to “consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development … having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions” (cl 14(2)) and to consider whether or not consent should be granted with an aim to ensuring “that greenhouse gas emissions are minimised to the greatest extent practicable” (cl 14(1)(c)). The phrase “downstream emissions” encompassed the consequences of combusting or burning the coal mined.
The two reports considered the question of greenhouse gas emissions. In the Executive Summary of the report of the NSW Department the following appeared under the heading “Greenhouse Gas Emissions”:
The Greenhouse Gas (GHG) emissions of the Project have been assessed on a cumulative basis incorporating the Approved Project, but consideration has been given to the additional impacts over and above those associated with the Approved Project for comparative purposes.
The main sources of Scope 1, Scope 2 and Scope 3 Greenhouse Gas (GHG) emissions from the Project are from electricity consumption, fugitive emissions of carbon dioxide (CO2) and methane (CH4), diesel usage, and the transport and end use of product coal.
The Project would generate approximately 3.1 Mt carbon dioxide equivalent (CO2-e) of Scope 1 emissions, 0.8 Mt Scope 2 and 366 Mt CO2-e Scope 3 emissions.
In comparison to the Approved Project, there would be a reduction of about 1 Mt CO2-e of Scope 1 emissions, increase of about 0.15 Mt CO2-e Scope 2 emissions and an increase of about 100 Mt CO2-e of Scope 3 emissions over the life of the Project. The reduction in Scope 1 GHGE can be partially attributed to the inclusion of the Project CHPP, rail loop and rail spur, due to reduction in the consumption of diesel fuel associated with ROM coal haulage by truck to the Gunnedah CHPP.
The Project’s Scope 1 emissions would contribute to about 0.028% of Australia’s current annual GHG emissions and would remain a very small contribution when compared to Australia’s commitments under the Paris Agreement, as identified in the Commonwealth government’s nationally determined contribution (NDC).
The Department acknowledges that the Scope 3 emissions from the combustion of product coal is a significant contributor to anthropological climate change and the contribution of the Project to the potential impacts of climate change in NSW must be considered in assessing the overall merits of the development application.
However, the Department notes that the Project’s Scope 3 emissions would not contribute to Australia’s NDC, as product coal would be exported for combustion overseas. These Scope 3 emissions become the consumer countries Scope 1 and 2 emissions and would be accounted for in their respective national inventories.
Importantly, the NSW or Commonwealth Government’s current policy frameworks do not promote restricting private development as a means for Australia to meet its commitments under the Paris Agreement or the long-term aspirational objective of the NSW Government’s Climate Change Policy Framework. Neither do they require any action to taken by the private sector in Australia to minimise or offset the GHG emissions of any parties outside of Australia, including the emissions that may be generated in transporting or using goods that are produced in Australia.
Overall, the Department considers that the GHG emissions for the Project have been adequately considered and that, with the Department’s recommended conditions, are acceptable when weighed against the relevant climate change policy framework, objects of the EP&A Act (including the principles of Ecologically Sustainable Development) and socio-economic benefits of the Project.
The Department has recommended conditions to manage the GHG emissions of the Project, including requiring Whitehaven to:
Ÿtake all reasonable steps to improve energy efficiency and reduce Scope 1 and Scope 2 GHG emissions for the Project; and
Ÿprepare and implement an Air Quality and Greenhouse Gas Management Plan, including proposed measures to ensure best practice management is being employed to minimise the Scope 1 and 2 emissions of the Project.
(emphasis added)
In the detailed body of the report is the section dealing with the “public interest”. That public interest was described in [670] of the report as consideration of the objects of the State environmental legislation, including the principles of environmentally sustainable development, greenhouse gas emissions having regard to relevant climate change policy frameworks, and the (international) demand for coal and whether its sale would be to a country that is a signatory to the Paris Agreement.
Critical to the analysis and conclusions drawn in the report was the division of the emissions into Scope 1, 2 and 3 emissions. The protocols employed were of the World Business Council for Sustainable Development and the World Resources Institute. By that method of analysis Scope 3 emissions from the burning of the coal were part of the Scope 1 emissions of the country where the coal is combusted.
The coal to be mined in the extension of the mine was for export to Japan, South Korea and Taiwan.
At [683]–[715] the report considered “Climate Change Policy Consideration”. The report recognised that the requirements under cll 14(1) and 14(2) of the Mining SEPP to consider whether conditions should be attached to ensure the development is undertaken to minimise greenhouse gas emissions to the greatest extent possible (see [683]) and to consider an assessment of greenhouse gas emissions (including downstream emissions, which would include emissions from the combustion of the coal), such consideration to have regard to State or national policies, programs, or guidelines concerning greenhouse gas emissions (see [684]). Two key policy documents were identified (at [685]) for this assessment: the “Climate Change Policy Framework” of the New South Wales Government (CCPF) and the Commonwealth Government’s commitments to the Paris Agreement. In addition to these two policy frameworks, the report noted (at [686]) the State’s recently announced (March 2020) plan for net zero emissions by 2050 and a 35% cut in 2005 emissions by 2030.
At [688] the report described the State’s policy under the CCPF, as follows:
… The CCPF does not set prescriptive emission reduction targets and sets policy directions for government action, for example, to improve opportunities for private sector investment in low emissions technology in the energy industry, which is needed for a transition to a net-zero emissions inventory.
The report stated (at [689]) that the project was not inconsistent with the CCPF, by reference to Scope 1 and Scope 2 emissions.
The report then considered the Paris Agreement and Australia’s obligations and commitments thereunder and thereto. The evident important consideration recognised by the report was Scope 3 emissions. The importance of Scope 3 emissions and their place in the State, Commonwealth and international policy frameworks (the last being the Paris Agreement) can be seen in [692]–[696]:
692. The Department acknowledges that the Scope 3 emissions from the combustion of product coal is a significant contributor to anthropological [sic] climate change and the contribution of the Project to the potential impacts of climate change in NSW must be considered in assessing the overall merits of the development application.
693. Importantly, the Project’s Scope 3 emissions would not contribute to Australia’s NDC [nationally determined contributions], as product coal would be exported for combustion overseas. These Scope 3 emissions become the consumer countries Scope 1 and 2 emissions and would be accounted for in their respective national inventories.
694. A regular 5-yearly review of NDCs is required under the Paris Agreement with the next review to be submitted by signatories in 2020. The Department acknowledges that ongoing review to meet emission targets by signatories may affect export markets for coal and that the UNFCCC global approach to nationally determined emission reduction targets is the appropriate mechanism for managing Australia’s Scope 3 emissions, rather than regulating Scope 3 emissions on a project by project basis in Australia.
695. The Department also notes that the Department’s ‘Guidelines for Economic Assessment of Mining and Coal Seam Gas Proposals’ and the associated 2018 technical notes do not require the social cost of Scope 3 emissions to be incorporated into the economic evaluation when determining the net benefits to NSW or Australia of the development. This approach, where both the costs and benefits of consumption and use of the coal is considered by the country/ development where the coal is being used, is consistent with the global accounting framework for GHG emissions under the UNFCCC.
696. Importantly, the NSW or Commonwealth Government’s current policy frameworks do not promote restricting private development as a means for Australia to meet its commitments under the Paris Agreement or the long-term aspirational objective of the CCPF guidelines. Neither do they require any action to [sic] taken by the private sector in Australia to minimise or offset the GHG emissions of any parties outside of Australia, including the emissions that may be generated in transporting or using goods that are produced in Australia.
The place of Scope 3 emissions in Commonwealth policy was made clear in the report at [697] in which a letter from the Commonwealth Minister to her State counterpart expressing Commonwealth Government policy was quoted as saying:
… “any requirement to consider scope three emissions within a sub-national or state jurisdiction is inconsistent with long accepted international carbon accounting principles and Australia’s international commitments”.
The report went on to explain (at [701]–[706]) why Scope 3 emissions should not be relevant:
701. There is no NSW or Commonwealth policy that supports placing conditions on an applicant to minimise the Scope 3 emissions of its development. Any such policy is likely to result in significant implications for the NSW and Australian economy and it is not clear it would have any effect on reducing GHG emissions generated by parties in other jurisdictions outside Australia. Further, conditions must be for a proper planning purpose, must fairly and reasonably relate to the subject development, and must not be manifestly unreasonable.
702. On this basis the Department has recommended conditions requiring Whitehaven to take all reasonable steps to improve energy efficiency and reduce Scope 1 and Scope 2 GHG emissions for the Project and to prepare and implement an Air Quality and Greenhouse Gas Management Plan, including a requirement to apply best practice to minimise the Scope 1 and 2 emissions of the Project.
703. The Department also acknowledges that GHG emissions have attracted additional attention following a February 2019 judgement in the Land and Environment Court (Rocky Hill appeal – [Gloucester Resources Limited vs Minister for Planning] (2019 NSWLEC 7) and the Commission’s subsequent decisions relating to GHG emissions in coal mining projects, including the refusal of Bylong Coal Project and inclusion of conditions relating to Scope 3 GHG emissions for the United Wambo Open Cut Coal Mine.
704. In its Statement of Reasons for Decision for the Rixs Creek Continuation of Mining Project (SSD 6300), the Commission noted that the Applicant for the Rixs Creek Project does not have direct control over Scope 3 emissions and accepted that Scope 3 emissions were the responsibility of the end customer for coal export. The Commission also noted that coal consumption in countries which are signatories to the Paris Agreement, or have enforced GHG reduction targets (such as Taiwan) would lead buyers to seek coal products which meet their product requirements and would also minimise GHG emissions to achieve domestic emission reduction targets.
705. The NSW Government has since introduced a Bill into Parliament (Environmental Planning and Assessment Amendment (Territorial Limits) Bill 2019). The Bill was introduced in response to recent planning decisions and seeks to clarify that conditions under EP&A Act can only be imposed if they relate to impacts occurring within Australia or its external territories.
706. This aligns with the intent that development consent conditions set and enforced in the NSW planning system are not an appropriate mechanism to control the impacts resulting from the activities of third parties in other countries.
The report then considered (at [707]–[710]) the international demand for coal, as follows:
707. The Project would produce metallurgical coal (around 70% of the product coal) including semi-soft coking coal, pulverised coal injection (PCI) coal and thermal coal (around 30% of the product coal) to supply Whitehaven’s main export market customers in Japan, the Republic of Korea (South Korea) and the Republic of China (Taiwan).
708. Japan and South Korea are signatories to the Paris Agreement and have developed GHG emission reduction targets, which would be managed under the NDCs of these countries. Taiwan is not a signatory to the Paris Agreement but has developed its own GHG emission reduction targets (enforced under its Greenhouse Gas Reduction and Management Act) that are comparable to those of countries who are signatories.
709. Whitehaven recognises that global coal demands are shifting and has provided an economic sensitivity analysis (see Section 6.8 – Economic Evaluation) to account for changing trends in forecast coal pricing and demand. The sensitivity analysis shows that significant net benefits would accrue to NSW over a range of assumptions for coal prices, discount rates, exchange rates and employment related benefits.
710. The Department notes that the majority of the coal is of metallurgical quality and that the thermal coal quality is a high calorific/ low ash/ low sulphur coal which is in stronger demand globally compared to lower quality (high ash/ high sulphur) coal. Whitehaven provided the Department with further information (see Appendix G6-10) on the Project’s coal quality relative to anticipated demand based on the three climate changes scenarios contemplated by the International Energy Agency (IEA) in its World Energy Outlook 2019. Under the Sustainable Development Scenario there would continue to be demand for high quality (low ash/ low sulphur/ high calorific energy) thermal and metallurgical coal, particularly in the Asia Pacific region, as provided by the Vickery coal resource.
Explicit in the above is an approach based on State and Commonwealth public policy stated to be conformable with international convention (the Paris Agreement) and in part reduced to State legislation that Scope 3 emissions are a matter for the countries buying and combusting the coal which have emission targets conformable with international treaty.
Appendix J to the report concerned matters relevant to the Minister’s decision under the EPBC Act. It dealt with impacts on listed species and communities in section J.1. This included the likely impact of certain native vegetation clearing on listed species and communities of fauna, including birds, koalas, bats and fish. Section J.2 dealt with offsetting impacts. Sections J.3 to J.6 dealt with other matters required to be considered under the EPBC Act. At s J.7 conclusions were set out on the controlling provisions as follows:
Threatened species and communities (Sections 18 and 18A of the Act)
For the reasons set out in Section 6.2, Appendix I and this Appendix, the Department recommends that the impacts of the action would be acceptable, subject to avoidance, mitigation measures described in Whitehaven’s EIS, Submissions Report and additional advice provided to the Department and the recommended conditions of consent in Appendix L.
A water resource, in relation to coal seam gas development and large coal mining development (Sections 24D and 24E of the Act)
For the reasons set out in Section 6.2 and this Appendix, the Department recommends that the impacts of the action on a water resource, in relation large coal mining development would be acceptable, subject to the avoidance, mitigation measures described in Whitehaven’s EIS, Submissions Report and the requirements of the recommended conditions of consent in Appendix L.
In appendix K, the NSW Department considered various aspects of the EPA Act requirements. Amongst these were “intergenerational equity”. The report stated in appendix K about this matter the following:
Intergenerational equity has been addressed through maximising efficiency and coal resource recovery and developing environmental management measures which are aimed at ensuring the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.
The Department acknowledges that coal and other fossil fuel combustion is a contributor to climate change, which has the potential to impact future generations. However, the Department also recognises that there remains a clear need to develop coal deposits to meet society’s basic energy requirements for the foreseeable future. The proposal includes measures to mitigate potential GHGE’s from the operation of the Project, which would be recommended as a requirement of the Project’s operating conditions and detailed in an Air Quality and Greenhouse Gas Management Plan.
The Department’s assessment of direct energy use and associated GHGE’s (ie Scope 1 and Scope 2 emissions) has found that these emissions would be low and comprise a very small contribution towards climate change at both the national and global scale (see Section 6.10).
The Department considers that the socio-economic benefits and downstream energy generated by the Project would benefit future generations, particularly through the provision of national and international energy needs in the short to medium term.
The report of the IPC reviewed the Department’s report. It similarly categorised the greenhouse gas emissions into Scope 1, 2 and 3 emissions. A public hearing was conducted. The submissions of members of the public expressed concern as to the total amount of greenhouse gas emissions from the extension and the project, including Scope 3 emissions. The IPC made its findings, consistent with Australia’s non-responsibility for Scope 3 emissions, saying at [215]–[216] and [220]–[223], as follows:
215. The Commission acknowledges that the aim of the NSW Climate Change Policy Framework (CCPF) is to “maximise the economic, social and environmental wellbeing of NSW in the context of a changing climate and current and emerging international and national policy settings and actions to address climate change” with an aim to achieve net-zero emissions by 2050 and to ensure NSW is more resilient to a changing climate. The Commission notes that the CCPF does not set prescriptive emission reduction targets and sets policy directions for government action as stated by the Department in paragraph 207 above. The Commission also notes that the NSW Government released the Net Zero Plan Stage 1: 2020–2030 (Net Zero Plan) in March 2020 as referenced by the Department in paragraph 208 above. The Commission notes that the Net Zero Plan builds on the CCPF and sets out a number of initiatives to deliver a 35% cut in emissions by 2030, compared to 2005 levels. The Commission agrees with the Department’s assessment, in paragraph 207 above that the Project is not inconsistent with the CCPF and that the Applicant has committed to minimising its Scope 1 emissions over which it has direct control.
216. The Commission notes that, under the Paris Agreement, the Australian Government committed to a nationally determined contribution (NDC) to reduce national GHG emissions by between 26 and 28 percent from 2005 levels by 2030. The Commission also notes that Australia does not require monitoring or reporting of Scope 3 emissions under the NGERS [National Greenhouse and Energy Reporting Scheme] and they are not counted in Australia’s national inventory of GHG emissions under the Paris Agreement. The Commission agrees with the Department’s statement in paragraph 209 above that the Project’s Scope 3 emissions would not contribute to Australia’s NDC, as product coal would be exported overseas. The Commission notes that these Scope 3 emissions become the consumer countries’ Scope 1 and 2 emissions and would be accounted for under the Paris Agreement in their respective national inventories.
…
220. The Commission has acknowledged that the concerns raised by the public in paragraphs 188 to 191 above, including submissions made by the BFCG [Boggabri Farming and Community Group] in relation to the burning of fossil fuels as an energy resource and meeting the Paris Agreement climate targets. The Commission notes that the ‘carbon budget’ approach suggested in some submissions is not endorsed by the Paris Agreement, the Australian Government or the NSW Government. Furthermore, neither the Australian nor NSW Government have indicated that the development of new coal mines or the expansion of existing mines be prohibited or restricted in any way for the purpose of achieving Australia’s NDC.
221. The Commission agrees with the Department’s statement in paragraph 209 above and acknowledges that Scope 3 emissions from the combustion of product coal are a significant contributor to anthropological [sic] climate change and that the contribution of the Project to the potential impacts of climate change in NSW must be considered in assessing the overall merits of the development application.
222. The Commission notes that between 60-70% of the coal proposed to be extracted is likely to be metallurgical coal, with the remainder being thermal coal as stated above by the Applicant in paragraph 200 and by the Department in paragraph 205 of this report. The Commission notes that at this point in time, metallurgical coals are essential inputs for the current production of approximately 70% of all steel globally as stated by the Applicant in paragraph 200 above. The Commission is of the view that in the absence of a viable alternative to the use of metallurgical coal in steel making and on balance, the impacts associated with the emissions from the combustion of the project’s metallurgical coal are acceptable. The Commission also notes that the coal proposed for extraction is anticipated to be of a relatively high quality, as stated above by the Applicant in paragraph 194 and Department in paragraph 204. The Commission notes the Applicant’s statement in paragraph 194 above that the use of higher quality coal may result in lower pollutants.
223. For the reasons set out above, the Commission is of the view that the GHG emissions for the Project have been adequately considered. The Commission finds that on balance, and when weighed against the relevant climate change policy framework, objects of the EP&A Act, ESD principles (section 4.10) and socio-economic benefits (section 4.9.6), the impacts associated with the GHG emissions of the Project are acceptable and consistent with the public interest. The Commission therefore imposes the Conditions B35, B36 and B37 as recommended by the Department.
(emphasis added)
The Minister thus came to her responsibility to decide whether to approve the application.
The statutory framework in the EPBC Act of the decision of the Minister
The statutory framework of the Minister’s decision needs to be explained. I will begin with the text of the statute. It is, however, necessary to say something of the context of the EPBC Act, in particular its passing as an expression of the agreement amongst governments of the federation to co-operate in their shared responsibilities in respect of the environment.
At the outset of this explanation it is appropriate to emphasise a point (correctly) submitted by the Minister to be central to the resolution of the controversy. The EPBC Act is not concerned generally with the protection of the environment. Nor is there any part of the EPBC Act that is expressly concerned with greenhouse gases, global warming or climate change. Using such Constitutional foundations as are available, most importantly the external affairs power in the implementation of conventions and international agreements (s 51(xxix) of the Constitution), the Parliament has directed the EPBC Act to nine “matters of national environmental significance”. In respect of some, but not all, of these matters the environment (as widely defined) is a relevant consideration. The two matters of national environmental significance which were the subject of the Minister’s concern and decision were listed endangered species and communities and the water resource. As will be seen, the environment generally (as widely defined) was not an express consideration in respect of those matters. Yet, it was only by the exercise of the power to approve the extension, derived from the duty to approve or refuse the application, by reference to the particular matters of concern (species, communities and water resource) that the question, called forth by the posited duty, of the affectation of the environment generally by emission of greenhouse gases arose. The decision for the Commonwealth Minister was not concerned with greenhouse gas emissions, although the State decision was so concerned. The duty of care was said to arise because the power to approve amounted to the effective grant of a licence to carry on activity which involved the foreseeable risk of personal injury or death to the respondents.
The objects of the EPBC Act are set out in s 3(1) as follows:
(1) The objects of this Act are:
(a)to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and
(b)to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and
(c)to promote the conservation of biodiversity; and
(ca)to provide for the protection and conservation of heritage; and
(d)to promote a co‑operative approach to the protection and management of the environment involving governments, the community, land‑holders and indigenous peoples; and
(e)to assist in the co‑operative implementation of Australia’s international environmental responsibilities; and
(f)to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity; and
(g)to promote the use of indigenous peoples’ knowledge of biodiversity with the involvement of, and in co‑operation with, the owners of the knowledge.
The word “environment” (see ss 3(1)(a) and Ch 2) is defined in broad terms in s 528 of the EPBC Act as including:
(a)ecosystems and their constituent parts, including people and communities; and
(b)natural and physical resources; and
(c)the qualities and characteristics of locations, places and areas; and
(d)heritage values of places; and
(e)the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c) or (d).
The phrase “ecologically sustainable use” (in para 3(1)(b)) is defined in s 528 as follows:
ecologically sustainable use of natural resources means use of the natural resources within their capacity to sustain natural processes while maintaining the life‑support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations.
Subsection 3(2) sets out how the EPBC Act seeks to achieve these objects:
(2) In order to achieve its objects, the Act:
(a)recognises an appropriate role for the Commonwealth in relation to the environment by focussing Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas; and
(b)strengthens intergovernmental co‑operation, and minimises duplication, through bilateral agreements; and
(c)provides for the intergovernmental accreditation of environmental assessment and approval processes; and
(d)adopts an efficient and timely Commonwealth environmental assessment and approval process that will ensure activities that are likely to have significant impacts on the environment are properly assessed; and
(e)enhances Australia’s capacity to ensure the conservation of its biodiversity by including provisions to:
(i)protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species) and ensure the conservation of migratory species; and
(ii)establish an Australian Whale Sanctuary to ensure the conservation of whales and other cetaceans; and
(iii)protect ecosystems by means that include the establishment and management of reserves, the recognition and protection of ecological communities and the promotion of off‑reserve conservation measures; and
(iv)identify processes that threaten all levels of biodiversity and implement plans to address these processes; and
(f)includes provisions to enhance the protection, conservation and presentation of world heritage properties and the conservation and wise use of Ramsar wetlands of international importance; and
(fa)includes provisions to identify places for inclusion in the National Heritage List and Commonwealth Heritage List and to enhance the protection, conservation and presentation of those places; and
(g)promotes a partnership approach to environmental protection and biodiversity conservation through:
(i)bilateral agreements with States and Territories; and
(ii)conservation agreements with land‑holders; and
(iii)recognising and promoting indigenous peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity; and
(iv)the involvement of the community in management planning.
(emphasis added)
Section 3A describes the principles of “ecologically sustainable development” as follows:
(a)decision‑making processes should effectively integrate both long‑term and short‑term economic, environmental, social and equitable considerations;
(b)if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
(c)the principle of inter‑generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;
(d)the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision‑making;
(e)improved valuation, pricing and incentive mechanisms should be promoted.
Chapter 2 of the EPBC Act concerns “protecting the environment”. Section 11 contains a simplified outline of the chapter as follows:
This Chapter provides a basis for the Minister to decide whether an action that has, will have or is likely to have a significant impact on certain aspects of the environment should proceed.
It does so by prohibiting a person from taking an action without the Minister having given approval or decided that approval is not needed. (Part 9 deals with the giving of approval.)
Approval is not needed to take an action if any of the following declare that the action does not need approval:
(a)a bilateral agreement between the Commonwealth and the State or Territory in which the action is taken;
(b)a declaration by the Minister.
Also, an action does not need approval if it is taken in accordance with Regional Forest Agreements or it is for a purpose for which, under a zoning plan for a zone made under the Great Barrier Reef Marine Park Act 1975, the zone may be used or entered without permission.
Part 3 within Ch 2 concerns “requirements for environmental approvals”. Division 1 of Pt 3 concerns “requirements relating to matters of national and environmental significance”. Subdivisions A to G set out ten categories of such matters: “World Heritage” (Subdiv A), “National Heritage” (Subdiv AA), “wetlands of international importance” (Subdiv B), relevantly here “listed threatened species and communities” (Subdiv C), “listed migratory species” (Subdiv D), “protection of the environment from nuclear actions (Subdiv E), “marine environment” (Subdiv F), “Great Barrier Reef Marine Park” (Subdiv FA), relevantly here “protection of water resources from coal seam gas development and large coal mining development” (Subdiv FB), and “additional matters of national environmental significance” (Subdiv G).
Reasonable foreseeability of injury is not just a salient feature: it is a necessary element of a duty of care: Hill v Van Erp [1997] HCA 9; 188 CLR 159 at 166 (Brennan CJ); Crimmins at [72] (McHugh J, Gleeson CJ at [3] agreeing); Tame at [103] (McHugh J), [331] (Callinan J). Therefore, if the primary judge was in error in holding that approval by the Minister of the controlled action would result in a reasonably foreseeable risk of injury to the respondents and the class of persons whom they represent, that would be a sufficient reason to allow the appeal. For the reasons that I have already given, I would hold that the declaration as to the existence of a duty of care was in error, and I would do so whether or not the claimed risk of injury was reasonably foreseeable. Additionally, for the following reasons I am not persuaded that a decision by the Minister to approve the Extension Project would give rise to a foreseeable risk of injury to the respondents or any of those whom they represent.
The approach to foreseeability of injury when assessed for the purposes of whether a duty of care is to be recognised, as opposed to questions of breach, has been described as “undemanding”: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 44 (Mason J, Stephen J and Aickin J agreeing), citing the characterisation by Glass JA in the Court of Appeal in Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641. In Tame at [96]-[99], McHugh J (who had appeared as counsel in Shirt) lamented the undemanding nature of foreseeability at the duty stage, stating at [99] that “an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty”. Gleeson CJ at [12] of Tame described as tendentious the portrayal of the foreseeability test as “undemanding”, but one that may be more or less accurate depending upon context, and then stated –
It is important that “reasonable foreseeability” should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.
One aspect of the undemanding test of reasonable foreseeability is that, as the court held in Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120-121, it is not necessary to show the precise manner in which the injuries sustained were reasonably foreseeable, and that –
… it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.
Nonetheless, the foreseeability of injury must be in respect of an injury of a kind that is recognised as compensable by the law of negligence and that is capable of being caused by a careless act or omission of the tortfeasor. If, in a particular case, the prospect of causation of an injury is, on an undemanding basis, so remote that it is far-fetched, or fanciful, then it may follow that for the purposes of the recognition of a duty of care, the injury is not reasonably foreseeable. These considerations invite attention to questions of causation. To do this is not to assess causation at the duty stage, but to recognise that reasonable foreseeability, as an element of liability for damages in negligence, is to be assessed by reference to an injury that is alleged to have been caused by an act or omission of the alleged tortfeasor. Ordinarily, that assessment will take place after damage has occurred, as I discussed at the outset of these reasons.
The leading cases concerning causation address different problems. Before addressing the issues in more detail I will discuss four types of scenarios where causation issues arise.
The first scenario involves proof of causation, in the sense of proof of a necessary cause of an injury, where there is no direct evidence of a connection between alleged breach and injury, as to which see generally, Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182. That is essentially a conventional fact-finding exercise involving the application of orthodox principles relating to the evaluation of circumstantial evidence of which the judgment of Dixon J in Betts v Whittingslowe [1945] HCA 31; 71 CLR 637 at 649 is an example. The decision in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 is another example, although in a workers’ compensation context, of proof of causation of injury by reference to circumstantial evidence where no direct proof was available. As Kirby J remarked in Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269 at [66], claims in negligence will quite often depend upon circumstantial evidence and the inferences arising therefrom. Betts v Whittingslowe is an instance where exposure of a plaintiff to a particular risk of harm, together with the occurrence of harm falling within that risk, gave rise to an inference of causation on the balance of probabilities. The point of these references is that proof of causation by reference to circumstantial evidence of this type is proof of actual causation on the balance of probabilities, and not merely the proof of the creation of the risk of harm and the occurrence of harm falling within that risk, which by itself, and without taking the further step of drawing the inference, is insufficient: see, Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; 49 NSWLR 262 at [105]-[109], [119] (Spigelman CJ).
The second scenario is where there are multiple events, each of which is demonstrated to create an increased risk of injury such that each might be a sufficient cause of injury, but the evidence does not permit a finding on the balance of probabilities as to which, if any, of the events was a cause of the injury, as with Wintle v Conaust (Vic) Pty Ltd [1989] VicRp 84; [1989] VR 951, and Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111. The last point about absence of proof is important, and distinguishes this second scenario from that considered in Betts v Whittingslowe where the fact that an event created an increased risk of injury in combination with other facts gave rise to an inference of causation on the balance of probabilities. This second scenario was the subject of the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 (Fairchild), which concerned claims for damages by workers who contracted mesothelioma, the features of which Lord Bingham described in his speech at [7], on the basis of the medical science evidence that was before the House at that time. The crucial feature was that there was no way of identifying on the balance of probabilities as between alleged tortfeasors the source of asbestos fibres that were the likely cause of the injury. The House of Lords effected a modification of orthodox causation principles by treating conduct that materially increased the risk of contracting mesothelioma as amounting to a material contribution to injury. In the subsequent case of Barker v Corus UK Ltd [2006] UKHL 20; 2 AC 572, Lord Hoffman at [1] described the principle in Fairchild as an exceptional test, and at [36] treated the increase in the material risk of injury as the damage. In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; 2 AC 229, the Supreme Court extended the principle in Fairchild to circumstances where the claimant suffered from mesothelioma and where there was only one alleged tortfeasor who was alleged to have materially increased the risk of injury, but there was also a background risk of mesothelioma arising from ordinary environmental exposure independent of the risk of exposure from the alleged tortfeasor. The common law principle identified in Fairchild has not been recognised by the High Court as part of the common law of Australia: Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 at [52]–[53] (French CJ), [80]‑[82] (Gummow, Hayne and Crennan JJ); Alcan Gove Pty Ltd v Zabic [2015] HCA 33; 257 CLR 1 at [15] (French CJ, Kiefel, Bell, Keane and Nettle JJ). Further, as developed in the United Kingdom, the Fairchild principle would likely be inconsistent with the rejection in Tabet v Gett [2010] HCA 12; 240 CLR 537 of a lost opportunity to avoid personal injury as constituting damage (see Kiefel J at [114], [141]-[142], Hayne and Bell JJ at [65], and Crennan J at [100] agreeing), noting that at [149] Kiefel J stated that it was unnecessary to consider Fairchild.
The third scenario is where damage results from an accumulation of separate events which make material contributions to the damage suffered. The third scenario is distinguishable from the second scenario because the material contributions of the separate events to the damage can be proven on the balance of probabilities. Fleming described this as concurrent causes: Fleming, The Law of Torts (9th ed) at 225. An example of this problem is Bonnington Castings v Wardlaw [1956] AC 613 (Bonnington Castings), where the plaintiff contracted pneumoconiosis from the inhalation of dust at the workplace from two sources: one which involved a breach of duty, and one which did not. The House of Lords held that because the dust from the source that was the product of negligence had made a material contribution to the disease, the defendant was liable in damages for the entire injury. Bonnington Castings was explained in the joint reasons in Amaca Pty Ltd v Ellis at [67] –
[T]he question in the case was not what was the most probable source of the pursuer’s disease: dust from one source or the other. The question was whether dust from the poorly maintained equipment was a cause of his disease when the medical evidence was that pneumoconiosis is caused by a gradual accumulation of silica particles inhaled over a period of years.
In Williams v Bermuda Hospitals Board [2016] UKPC 4; [2016] AC 888 at [32] Lord Toulson, giving the advice of the Board, stated in relation to Bonnington Castings –
In Bonnington’s case there was no suggestion that the pneumoconiosis was “divisible”, meaning that the severity of the disease depended on the quantity of dust inhaled. Lord Reid interpreted the medical evidence as meaning that the particles from the swing grinders were a cause of the entire disease. True, they were only part of the cause, but they were a partial cause of the entire injury, as distinct from being a cause of only part of the injury. Lord Reid’s approach was understandable in view of the way in which the case was argued. … It was not argued by the employers that the dust from the swing grinders could be linked, at most, to only a small part of the severity of his disease and that any damages should reflect the limited injury thereby caused.
Perhaps unusually, there is a reporter’s note to the above passage in the authorised report of Williams v Bermuda Hospitals Board –
In later cases it has been the accepted view that pneumoconiosis is a “divisible” disease, its severity being dependent on the quantity of dust inhaled; and, therefore, where there has been more than one source of toxic material, the extent of the liability of a defendant responsible for part of the exposure should reflect the degree of injury suffered by the claimant as a result of that exposure: see the judgment of Lord Phillips of Worth Matravers PSC in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229, para 90: “Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible.”
The fourth scenario is where there are multiple contributing causes by persons not acting in concert, none of which alone would be sufficient to cause injury, but which in combination cause the injury alleged. Again, this scenario involves proof on the balance of probabilities that each cause contributed to the damage. The fourth scenario includes cases where the alleged tortfeasor’s contribution to the damage, though positive, was unnecessary by itself to contribute to a threshold point at which the damage was sustained, to which Stapleton refers in her articles cited below as “the over-subscribed case”. The issue to which the fourth scenario gives rise is that no single contributing cause would satisfy the “but for” test, which at common law is an important negative criterion of causation: March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 at 515-516 (Mason CJ). This type of scenario was referred to by McHugh J in Henville v Walker [2001] HCA 52; 206 CLR 459 at [106] in the context of considering causation for the purposes of a statutory cause of action for damages under the Trade Practices Act 1974 (Cth) –
If the defendant's breach has “materially contributed” [citing Bonnington Castings] to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.
There are many academic works where problems associated with this fourth scenario have been considered, including by reference to North American authority: see, Hart and Honoré, Causation in the Law (2nd ed) at 225-235; Stapleton, Factual Causation [2010] Federal Law Review 467; Stapleton, Unnecessary Causes (2013) 129 LQR 39; Stapleton, An ‘Extended But-For’ Test for the Causal Relation in the Law of Obligations (2015) 35 OJLS 697. Elements of the fourth scenario were also referred to in Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1; [2021] AC 649 at [183]-[185] (Lord Hamblen and Lord Leggatt). The academic works propose answers to many hypothetical problems that arise in connection with the fourth scenario, but the High Court has not ventured into that territory: see, Strong v Woolworths Ltd at [29], fn (58).
The primary judge framed the issue as to reasonable foreseeability at PJ [247] –
I have concluded that a reasonable person in the Minister’s position would foresee that, by reason of the effect of increased CO2 in the Earth’s atmosphere and the consequential increase in global average surface temperature, each of the Children is exposed, through the occurrence of heatwaves or bushfires, to the risk of death or personal injury. However, as earlier noted, the proper inquiry is narrower. What needs to be established is that the injury to the Children is a foreseeable consequence of the Minister’s approval of the Extension Project. Accordingly, I need to be satisfied that a reasonable person in the Minister’s position would foresee that a risk of injury to the Children would flow from the contribution to increased atmospheric CO2 and consequent increased global average surface temperature brought about by the combustion of the coal which the Minister’s approval would facilitate.
The primary judge stated at PJ [253] that the prospective contribution to the risk of exposure to harm made by the approval of the extraction of coal from the Extension Project could fairly be described as “tiny”. However, this did not address the risk that a decision by the Minister to approve the Extension Project would be a necessary cause of injury to the respondents. The “tiny” contribution to which the primary judge referred would at most amount to a contribution to an increased risk of harm, but not a risk of contribution to the harm itself, still less a material contribution that would attract the principles in Bonnington Castings. That is because the claimed foreseeable injuries would not be caused by any effect on the human body or mind by the accumulation of CO2 itself, but by consequential events such as bushfires, heat, droughts, cyclones, floods, and other weather events. The risk that was assessed by the primary judge was a risk of contribution to an increased risk of harm on a basis consistent with Fairchild, or alternatively a risk that additional CO2 that would be emitted into the atmosphere as a result of the approval of the Extension Project would make a contribution, together with other sources, to global CO2 levels which in turn presented a risk of injury. This latter type of risk is akin to the fourth scenario to which I referred above. Neither type of contribution to risk of injury would give rise to a liability in negligence because Australian common law principles of causation would not recognise the Minister’s decision to approve the Extension Project as a cause of injury. Any development of common law principles of causation in negligence to accommodate the Fairchild principle, or the contribution of insufficient causes to an end result, would have to confront an array of significant consequential issues, including whether the alleged tortfeasor is to be liable in solidum with any other tortfeasors for the whole of the damage, or only for some proportion: Barisic v Devenport [1978] 2 NSWLR 111 at 117 (Moffitt P, Hope JA agreeing).
In argument, senior counsel for the respondents called in aid a paper delivered by Dixon J to the Medico-Legal Society of Victoria at Melbourne on 30 September 1933 titled, Science and Judicial Proceedings, and which was published in Jesting Pilate in 1965. In that paper, Dixon J referred to the courts devising a formidable, if logically indefensible, system of causation, in which the investigation of cause was imperative. As to the investigation of cause, Dixon J stated –
In the simpler conditions of social life prevailing when causation grew into importance as a standard of legal right, perhaps the difficulties of answering the question it propounds were not great. Before the mechanical and scientific age, the sources of inquiry were either relatively simple, or else entirely outside human knowledge. But science, particularly physical science, has completely changed the practical application of the legal tests. … Where the rough and ready answers of the practical man might have once sufficed, an exact and reasoned solution is now called for. …
On 2 May 2009, French CJ delivered a paper to the Medico-Legal Society of Victoria titled, Science and Judicial Proceedings – Seventy-Six Years On, in which he concluded –
If, 76 years from now, another Chief Justice of Australia should give this lecture, the underlying questions will probably still be live although the nature of the science and its interaction with the law will be beyond our contemporary imagination.
Senior counsel for the respondents submitted that it could not be said what level of sophistication in determining attribution in respect of climate change would exist in 60 years’ time, but that one thing that could be said is that the ability to attribute cause is becoming ever more sophisticated. I understood counsel to submit that one of the dangers of evaluating causation now was that in all reality it will have to be investigated many years into the future, and just because it might be difficult to prove now did not mean that the risk of injuries caused by CO2 emissions resulting from the Extension Project was not reasonably foreseeable at the duty stage. There was merit in this submission, which was attractively put. However, in my view it serves to highlight the dangers of assessing fragmented liability issues decades before any cause of action accrues.
I express my conclusion in terms that, upon the undemanding test, and for the purposes of the respondents’ claim for a declaration, I am not persuaded that it is reasonably foreseeable that the approval of the Extension Project will be a cause of personal injury to the respondents, as the concept of causation is understood for the purposes of the common law tort of negligence.
Conclusions
The appeal should be allowed.
The effect of allowing the appeal is to expose untold represented persons to an issue estoppel in a proceeding in which they have not participated: see, Carnie v Esanda Finance Corporation Ltd at 423-424. For this reason, prior to the making of any final orders disposing of the appeal, the parties should be afforded the opportunity to make submissions to the court as to whether the proceeding should continue as a representative proceeding. I agree with the orders proposed by Allsop CJ.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate:
Dated: 15 March 2022
SCHEDULE OF PARTIES
VID 389 of 2021 Respondents
Second Respondent
ISOLDE SHANTI RAJ-SEPPINGS
Third Respondent
AMBROSE MALACHY HAYES
Fourth Respondent:
TOMAS WEBSTER ARBIZU
Fifth Respondent:
BELLA PAIGE BURGEMEISTER
Sixth Respondent:
LUCA GWYTHER SAUNDERS
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