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

Federal Court of Australia

Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 File number: VID 607 of 2020

Judgment of: BROMBERG J

Date of judgment: 27 May 2021

Catchwords: NEGLIGENCE – representative proceeding seeking a declaration that a duty of care be recognised and an injunction be granted restraining its breach – Environment Protection and Biodiversity Conservation Act 1999 (Cth) – novel duty of care – whether the Minister for the Environment owes Australian children a duty of care when approving under s 130 and s 133 of the EPBC Act the extraction of coal from a coal mine – risk of injury from climate change – claim that CO2 emissions from coal to be extracted will contribute to increased global surface temperatures leading to extreme weather events and consequent exposure of Australian children to the increased risk of personal injury, property damage and economic loss – discussion of applicable legal principles for ascertaining whether a novel duty of care exists – salient features approach adopted – whether feared harm reasonably foreseeable – whether the Minister has control, responsibility and knowledge in relation to foreseeable harm – extent of children's vulnerability to feared harm – whether recognised relationships between Minister and children exist including by reference to parens patriae doctrine – discussion of coherence in the law – whether imposition of liability in negligence is incoherent with statutory discretion provided to Minister under s 130 and s 133 of the EPBC Act to approve or not approve extension of coal mine – whether incoherence with principles of administrative law – whether potential liability indeterminate – whether other policy considerations tend against a duty of care being recognised – duty of care recognised but only in relation to the avoidance of personal injury to the children INJUNCTION – principles for grant of quia timet injunction discussed – whether reasonable apprehension of breach of duty of care established – whether extent of restraint justified – injunction refused