1. Introduction
The Honourable Chief Justice Brian Preston has observed that ‘imagination is needed to tackle the climate emergency’.[1] Alongside policy and regulatory imagination, legal imagination ‘is needed to see, and to see beyond, the traditional taxonomies of law and litigation’.[2]
The identification of intersections between the law and climate, which provide the inspiration and opportunity for climate litigation, demands an understanding of civil procedure.
Civil procedure is the body of law that sets out the rules, regulations and processes the courts must follow when adjudicating civil lawsuits. Moreover, civil procedure and its associated processes are the means of delivering the rights and remedies that the substantive law mandates.[3]
As there is no climate law as such, climate litigation — litigation involving climate change as a direct or indirect issue[4] — encompasses wide-ranging causes of action, plaintiffs (applicants), defendants (respondents), jurisdictions and remedies. Thus, procedural issues have manifested in different ways as both enabling factors and hurdles. As a substantial portion of climate litigation to date has been public interest litigation, specific procedural considerations have also applied.
This chapter discusses the following elements of civil procedure:
- Jurisdiction
- Standing
- Joinder and representative proceedings
- Costs
- Remedies
These elements reflect key questions litigators and plaintiffs grapple with when formulating a claim:
- Where? (jurisdiction)
- Who? (standing, joinder and representative proceedings)
- How? (costs)
- What? (remedies)
The motivations, processes and results of climate litigation differ significantly between countries. The focus here is on the Australian experience.
Evidence is another core element of civil procedure. In climate litigation, scientific developments have facilitated expert evidence essential to individual cases and to the emergence of new types of claims. The development of attribution science, for example, has enabled loss and damage claims, including the transboundary harm cases discussed at section 3.2 below. Lay evidence has also been essential. For example, in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6),[5] the only climate-related human rights case in Australia to date, the Land Court of Queensland heard on-country evidence for the first time from First Nations witnesses in Gimuy (Cairns) and the Erub and Poruma Islands of the Torres Strait. As evidence is the subject of a separate chapter in this text, it is not discussed in detail here.
Civil litigation must also comply with various other procedural factors, including limitation of actions, requirements for the commencement of proceedings and case management, service, pleading, affidavits, interlocutory procedures, settlement, trial and appeal, enforcement and practical directions.[6] While detailed consideration of all aspects of civil procedure is outside the scope of this chapter, we encourage you to reflect on how the dynamics of climate litigation and civil procedure discussed here may also apply in other areas.
1.1 Access to Justice
The overarching civil justice objective in all Australian jurisdictions is that civil litigation is conducted to achieve a just result through efficient and cost-effective processes.[7] This is inextricably linked to the concept of access to justice, which may be thought of as twofold: the system must be equally accessible to all, with access not contingent on financial means or expertise, and must lead to results that are ‘individually and socially just’.[8]
While not always insurmountable — as successful climate litigation has shown — procedural hurdles are experienced unevenly, reflecting and reproducing existing inequalities and vulnerabilities. Yeo points out that ‘assertions such as the need for equality before the law and equal protection before the law are highly suspect once we pose the question ‘Whose law?’,[9] to which we can add the further questions ‘Whose courts?’[10] as well as ‘Whose justice?’
In the context of climate litigation, access to justice is also tied to the concept of climate justice. Climate justice concerns the uneven and unjust distribution of climate change vulnerabilities and impacts, and the underlying causes of such maldistribution.
Key Questions
- Are requirements of justice and efficiency consistent or conflicting? How are they achieved in climate litigation?
- What characterises an individually and socially just outcome in the context of climate change issues? To what extent have and/or can such outcomes be achieved through the legal system?
- Brian J Preston, ‘Legal Imagination and Climate Litigation’ (2020) 35(1) Australian Environment Review 2, 1. ↵
- Ibid. ↵
- Bernard Cairns, Australian Civil Procedure (Thomson Reuters, 2019). ↵
- On defining climate litigation: Jacqueline Peel and Hari Osofsky, ‘Climate Change Litigation’ (2020) 16 Annual Review of Law and Social Science 21, 23–4. ↵
- [2022] QLC 21. ↵
- See, eg, Cairns (n 3). ↵
- Three jurisdictions have ‘overarching’ purposes of justice and efficiency: Civil Procedure Act 2010 (Vic) pts 2.1, 2.3; Federal Court of Australia Act 1976 (Cth) ss 37M–37N; Supreme Court Rules 2000 (Tas) r 414A. Two jurisdictions have ‘overriding’ purposes of justice and efficiency: Civil Procedure Act 2005 (NSW) ss 56–60; Uniform Civil Procedure Rules 1999 (Qld) r 5. Three jurisdictions have stated purposes of justice and efficiency of general application: Uniform Civil Rules 2020 (SA) r 1.5; Rules of the Supreme Court 1971 (WA) ord 1 r 4B; Court Procedures Act 2004 (ACT) s 5A. The Northern Territory has a general efficiency provision with broad application: Supreme Court Rules 1987 (NT) r 1.10. ↵
- Mauro Cappelletti and Bryant Garth, ‘Access to Justice: the Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) 27(2) Buffalo Law Review 181, 182. ↵
- Stanley Yeo, ‘The Recognition of Aboriginality by Australian Criminal Law’ in G Bird et al (eds), Majah: Indigenous Peoples and the Law (Federation Press, 1996) 229. ↵
- Janet Ransley and Elena Marchetti, ‘The Hidden Whiteness of Australian Law: A Case Study’ (2001) 1(1) Griffith Law Review 139, 140. ↵
Cases where climate change is a central issue in the dispute, climate change is raised as a peripheral issue, climate change is one motivation behind the case, or where the case has implications for mitigation or adaptation (Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy, Cambridge University Press, 2015, p. 8).
Jurisdiction refers to the scope of a court’s authority to decide matters. It comes from the Latin ‘juris’ (the law) and ‘dicto’ (to say or declare).
Court action ‘intended to achieve change to law and policy that will benefit individuals and communities beyond those directly involved in the campaign'.[1]
[1] Andrea Durbach, Luke McNamara, Simon Rice and Mark Rix, ‘Public Interest Litigation: Making the case in Australia’ (2013) 38(4) Alternative Law Journal 219, 219. It should be noted that defining ‘public interest’ is notoriously challenging, and the term has not been definitively defined by legislation or by the courts: see, e.g., Chris Wheeler, ‘The Public Interest Revisited - We Know It’s Important But Do We Know What it Means?’ (2016) 72 Australian Institute of Administrative Law Forum 34–49.
Attribution science refers to ‘the process of evaluating the relative contributions of multiple causal factors to a change or event with assessment of confidence’.[1] In the context of climate change, attribution science is used to provide evidence of: (i) how human activities affect the global climate system (climate change attribution); (ii) how changes in the global climate system affect other interconnected natural and human systems (impact attribution); (iii) how changes in the global climate system affect the frequency, magnitude, and other characteristics of extreme events (extreme event attribution); and (iv) the relative contributions of different actors and activities to global climate change (source attribution).[2]
[1] IPCC, Climate Change 2021: The Physical Science Basis, Glossary
[2] Michael Burger, Jessica Wentz, and Daniel J. Metzger, ‘Climate Science and Human Rights: Using Attribution Science to Frame Government Mitigation and Adaptation Obligations’ in César Rodríguez-Garavito (ed), Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action (Cambridge University Press, 2022) 223.
The negative impacts of climate change that occur despite, or in the absence of, mitigation and adaptation.
Adverse effects experienced in one State caused by or originating from an area under the jurisdiction of another State.
Access to justice is a central element of the rule of law. It refers to the need for the system to be equally accessible to all and lead to results that are individually and socially just.[1]
[1] Mauro Cappelletti and Bryant Garth, ‘Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) 27(2) Buffalo Law Review 181).
