Much more to the point: this is getting dangerously close to judicialising politics.

A

Dear Colleagues;

It is only a first instance decision, but the ruling of Bromberg J in the Federal Court of Australia today, in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/560.html may be of interest. His Honour finds that a Minister of the Crown with power to approve a coal mine development owes a duty of care in negligence to a group representing the children of Australia, and allows a claim for a quia timet injunction to go ahead preventing the Minister giving approval. The basis of course is the contribution that the products of the coal mine will make to global warming. One of the few cases where an injunction to prevent future negligence has been supported (the most prominent Australia example in recent years was a decision of the same judge in Plaintiff S99/2016 v Minister for Immigration and Border Protection[2016] FCA 483;  (2016) 243 FCR 17 in a case involving an asylum seeker.

I see a number of problems with the decision, which will almost certainly be appealed (and probably all the way to the High Court). But perhaps not the least of the problems is that his Honour does not discuss the application of sections 43A and 44 of the Civil Liability Act 2002 (NSW), which would seem to be relevant since the events are occurring in NSW, and apply to decisions of public authorities. (Yes, one could argue these apply to breach and not to duty, but since this is an application for a quia timet injunction one would think issues of possible breach need to be considered.) Not to mention the causation problems…

Anyway, fodder for lots of interesting debate.

Regards

Neil

 

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

College of Human and Social Futures

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

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