5. Joinder and Representative Proceedings

Given the widespread impacts of climate change, it is unsurprising for multiple parties to have common or overlapping interests. In such cases, it can be more efficient for the court to combine multiple parties within one claim. Two mechanisms which accommodate this are joinder and representative proceedings.

5.1 Joinder

Joinder is a device whereby multiple parties or claims may be combined into a single lawsuit, generally granted where there is a common question of fact or law. The ordinary rules of procedure apply to each of the joined plaintiffs.

In the landmark case of Gloucester Resources Limited v Minister for Planning^[1] a community group — Gloucester Groundswell — was successfully joined to proceedings instituted by a proponent of a coalmine seeking merits review of a refusal of its development application.

The joinder was granted on the basis that Gloucester Groundswell would raise two issues that would not otherwise be sufficiently addressed in the proceedings: unacceptable social impacts on the community of Gloucester and the impact of the development on greenhouse gases. Consent for the project was refused by the Court, finding that it would adversely impact the visual amenity and rural and scenic character of the valley, the community and the existing uses of the land. His Honour Chief Justice Preston also found that ‘greenhouse gas emissions of the project and their likely contribution to adverse impacts on the climate system, environment and people adds a further reason for refusal’.^[2] This was the first time an Australian court found the greenhouse gas emissions from a proposed coalmine and their associated impacts was a ground for refusal.

5.2 Representative Proceedings

At a federal level, representative proceedings can be commenced under Part IVA of the Federal Court of Australia Act 1974 (Cth), which enables a representative applicant to commence proceedings on behalf of group members in respect of similar or related claims which share a substantial common issue.^[3] Representative proceedings can also be commenced under rule 9.21 of the Federal Court Rules 2011 (Cth) which requires persons to have ‘the same interest’ and predates Part IVA. Both provisions have been used in climate cases to date.^[4]

Important features of Part IVA include that the representative plaintiff must have a personal claim,^[5] only the representative plaintiff is liable for adverse costs (not group members),^[6] persons who fall within the defined class are group members^[7] unless they opt out,^[8] the Court may order that a proceeding not continue as a representative proceeding where it is in the interests of justice to do so,^[9] proceedings cannot be settled or discontinued without leave of the Court,^[10] the Court can make any order it considers ‘appropriate or necessary to ensure that justice is done in the proceeding’,^[11] and all group members are bound by the outcome of the proceeding unless they have opted out.^[12]

In recent years, three climate-related class actions have been brought in Australia, all against the Commonwealth government. These cases follow various environmental class actions in Australia^[13] and successful climate class actions overseas, including in the Netherlands a landmark case against the state for orders that it pursue higher greenhouse gas emissions reductions targets, brought by an environmental group on behalf of 900 Dutch citizens.^[14]

Historically, a significant focus of class actions in Australia has been shareholder claims against companies. With the focus on private actors in the recent waves of climate litigation, it is likely that claims against companies — for example, duty of care, consumer and shareholder claims — will take the form of class actions. The possibility of substantial cumulative damages may also attract financial support for such claims — for example, litigation funding (see below).

Sharma

In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment^[15] (‘Sharma’) eight Australian young people sought a declaration that the Commonwealth Minister for the Environment owed them and other Australian children a duty of care to protect them from a foreseeable risk of harm arising from climate change and an injunction to restrain an apprehended breach of that duty resulting from the approval of a coalmine extension.

As the plaintiffs were minors, and thereby lacked capacity to conduct litigation, they brought their claim with the assistance of a litigation representative, Sister Brigid Arthur.

Justice Bromberg of the Federal Court of Australia initially found that the Minister had such a duty.^[16] However, on appeal the decision was unanimously overturned by the Full Federal Court. Prior to making final orders, the parties asked the Full Federal Court to order that the proceeding not continue as a representative proceeding, as the proceedings would otherwise bind all represented children and give rise to an issue estoppel preventing them from bringing similar proceedings in the future.

O’Donnell

O’Donnell, discussed above, alleged misleading or deceptive conduct by the Commonwealth in relation to exchange-traded Australian Government Bonds.

The case settled in October 2023, with the parties agreeing to the Commonwealth publishing a statement containing various acknowledgements, including that climate change is a systemic risk that may affect the value of government bonds.^[17]

Pabai and Kabai

In a case currently before the Federal Court, Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia,^[18] representative applicants and First Nation leaders Uncle Pabai Pabai and Uncle Paul Kabai are alleging on behalf of all Torres Strait Islanders facing the climate crisis that the Commonwealth government owes a duty of care to all Torres Strait Islanders to take reasonable steps to protect them, their culture and their environment from harms caused by climate change. They allege that the government has breached this duty by inter alia failing to implement adequate measures to reduce Australia’s greenhouse gas emissions, causing Torres Strait Islanders to suffer and loss and damage. Whereas in Sharma and O’Donnell only declaratory and injunctive relief was sought, in this matter the applicants are also seeking damages.