Minister for the Environment v Sharma (No 2)

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FEDERAL COURT OF AUSTRALIA

Minister for the Environment v Sharma (No 2) [2022] FCAFC 65

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 orders: 14 April 2022
Date of publication of reasons: 22 April 2022
Catchwords: REPRESENTATIVE PROCEEDINGS – whether orders should be made that proceeding not continue as a representative proceeding
Legislation:

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 130, 133

Federal Court of Australia Act 1976 (Cth) s 23

Federal Court Rules 2011 (Cth) rr 1.32, 9.21, 9.22, 9.61
Cases cited:

Blair v Curran [1939] HCA 23; 62 CLR 464

Carnie v Essanda Finance Corporation Ltd [1995] HCA 9; 182 CLR 398

Minister for the Environment v Sharma [2022] FCAFC 35

Muldoon v Melbourne City Council [2013] FCA 994; 217 FCR 450

Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; 391 ALR 1

Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 13
Date of last submission/s: 29 March 2022
Date of hearing: Determined on the papers
Counsel for the Appellant: Mr S Free SC with Ms Z Maud
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondents: Mr E Nekvapil with 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:

14 APRIL 2022

THE COURT ORDERS THAT:

1.Further to the orders of the Full Court made on 15 March 2022, the orders of the Court made by the primary judge on 8 July 2021 be set aside and in lieu thereof it be ordered that:

1)The proceeding not continue as a representative proceeding.

2)The amended originating application dated 14 December 2020 be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. On 15 March 2022, the Full Court made orders allowing an appeal from the orders made by the primary judge in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; 391 ALR 1 (the first judgment) and Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (the second judgment): see Minister for the Environment v Sharma [2022] FCAFC 35 (J).  The first and second judgments…

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Details
Case
[2022] FCAFC 65
Decision Date

CaseChat Overview and Summary

In this case, the Full Court of the Federal Court of Australia dealt with an appeal from two earlier judgments concerning a representative proceeding brought by children on behalf of all children under the age of 18 and ordinarily resident in Australia. The children alleged that the Commonwealth Minister for the Environment owed a duty of care to prevent personal injury or death to Australian children arising from carbon dioxide emissions. The court was tasked with deciding whether the Minister owed such a duty, and if not, whether the proceeding should continue as a representative proceeding.

The Full Court considered the legal issues and found that no duty of care should be imposed on the Minister for the Environment to prevent the alleged harm. The court found that the proceeding should not continue as a representative proceeding and that the amended originating application should be dismissed. The Full Court also considered that the parties should be given an opportunity to address whether any further orders were necessary or appropriate to address the representative nature of the proceeding.

Following the Full Court's orders, the parties filed brief joint submissions proposing that the proceeding should not continue as a representative proceeding and that the amended originating application should be dismissed. The Minister did not seek an order for costs in respect of the appeal or at first instance, and accordingly, the effect of the proposed orders would be to set aside the costs order made in favour of the respondents at first instance. On 14 April 2022, the Full Court made orders in the terms proposed by the parties, setting aside the orders made by the primary judge and dismissing the amended originating application.

Orders

Orders of the court

1. Further to the orders of the Full Court made on 15 March 2022, the orders of the Court made by the primary judge on 8 July 2021 be set aside and in lieu thereof it be ordered that:

1) The proceeding not continue as a representative proceeding.

2) The amended originating application dated 14 December 2020 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 15 March 2022, the Full Court made orders allowing an appeal from the orders made by the primary judge in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; 391 ALR 1 (the first judgment) and Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (the second judgment): see Minister for the Environment v Sharma [2022] FCAFC 35 (J). The first and second judgments concerned a representative proceeding brought by eight (now six) Australian children on behalf of all children under the age of 18 and ordinarily resident in Australia at the time of the commencement of the proceeding (the Represented Children) alleging that the Commonwealth Minister for the Environment owed a duty of care to take reasonable care in exercising her duties, powers and functions under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to avoid causing personal injury or death to Australian children arising from the emissions of carbon dioxide into the Earth’s atmosphere. The Full Court was unanimous that such a duty should not be imposed on the Minister and therefore that the appeal should be allowed. For reasons explained at J[347] (Allsop CJ), J[749] (Beach J) and J[888] (Wheelahan J), the Full Court was of the view that before orders were made setting aside the orders of the Court made by the primary judge and dismissing the amended originating application dated 14 December 2020, the parties should be afforded an opportunity to consider whether any further orders were appropriate or necessary to address the representative nature of the proceeding. Accordingly, Order 3 of the orders made on 15 March 2022 provided the parties with an opportunity within 14 days to file and serve brief written submissions on any further necessary or appropriate orders, as well as to costs. On 29 March 2022, the parties filed brief joint submissions in accordance with Order 3 made on 15 March 2022, which annexed the following proposed minutes of orders:1.The orders of the Court below made on 8 July 2021 be set aside and in lieu therefore [sic] it is ordered that:(1)The proceeding not continue as a representative proceeding.(2)The amended originating application dated 14 December 2020 is dismissed.As is apparent from those proposed orders, the Minister did not seek an order for costs in respect of the appeal or at first instance. The effect of the proposed orders would be to set aside the costs order made in favour of the now respondents at first instance, but the Minister did not seek an order in lieu thereof for costs in her favour. On 14 April 2022, the Full Court made orders in the following terms in accordance with the orders proposed by the parties:1.Further to the orders of the Full Court made on 15 March 2022, the orders of the Court made by the primary judge on 8 July 2021 be set aside and in lieu thereof it be ordered that:1)The proceeding not continue as a representative proceeding.2)The amended originating application dated 14 December 2020 be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.