Bushfire Survivors for Climate Action Inc v Environment Protection Authority

Land and Environment Court (NSW)|2020-10-23|Before: Moore J

TABLE OF CONTENTS Introduction The substantive proceedings Subsequent procedural steps The Notice of Motion hearings The approach to be taken here When "facts" are not facts but are contestable opinions The position at the end of the interlocutory hearings Consideration The form of my orders Annexure A Annexure B

Introduction

On 26 October 2020, I made orders granting leave for the Applicant in these Class 4 proceedings, Bushfire Survivors for Climate Action Inc (Bushfire Survivors), to file and serve expert evidence from Professor Penny Sackett, a climate scientist at the Australian National University in Canberra.
These reasons for decision explain why I was satisfied that such leave should be granted. They also set out the process by which the specific topics for which I have given leave were refined from the significantly broader, and much less focused, scope for which Bushfire Survivors had originally made application.

The substantive proceedings

On 8 April 2020, Bushfire Survivors commenced these proceedings against the Environment Protection Authority (the EPA) by filing a Summons effectively challenging the adequacy of the EPA's policy responses to climate change. The Summons and Bushfire Survivors' Points of Claim was served on the EPA by e-mail on 15 April 2020.
On 8 May 2020, Bushfire Survivors was granted leave to rely on an Amended Summons. The Amended Summons sought the same relief as in the original Summons. This relief was (and remains): Pursuant to ss 65(1) and 69(1) of the Supreme Court Act 1970 and ss 20(2)(a) and 20(3)(a) of the Land and Environment Court Act 1979, orders in the nature of mandamus requiring the Respondent to: (a) develop environmental quality objectives, guidelines and policies to ensure environment protection; and (b) develop draft policies in accordance with Chapter 2 of the Protection of the Environment Operations Act 1997 to ensure environment protection.
The effect of the amendment was to provide the grounds in support as being matters set out in the original Points of Claim, now annexed to the Amended Summons. This document contained 41 paragraphs and accompanying particularisation. It is 13 pages long (a copy of the Points of Claim is Annexure A to these reasons).

Subsequent procedural steps

On 5 June 2020, the EPA filed its Points of Defence. At par 9 of this document, the EPA asserted its reliance on a 24-page list of policy documents (containing 300 document titles) forming Annex A to its Points of Defence. The list was described as demonstrating that "the EPA has discharged the duty in s 9(1) (a) of the [Protection of the Environment] Administration Act by exercising its powers from time to time to develop environmental quality objectives, guidelines and policies to ensure environmental protection". The list was noted as being inclusive and not exhaustive.
On 11 June 2020, Bushfire Survivors served the EPA with a Notice to Admit Facts. This document contained 73 "facts" with which the EPA was asked to agree. As later discussed, some of the "facts" were expressed as opinions rather than being matters of fact to which the EPA's agreement could properly be sought using this admission-seeking process.
On 25 June 2020, the EPA provided a Notice Disputing Facts in response to Bushfire Survivors' Notice. The EPA's Notice was in the formal, laconic form required for such a document. However, by letter also dated 25 June, the EPA provided Bushfire Survivors with a more discursive response (of some six pages), fleshing out the reasons for the responses given in the formal reply Notice.
On 28 September 2020, Bushfire Survivors filed a Notice of Motion seeking leave to adduce expert evidence in these proceedings. The expert evidence proposed to traverse a somewhat lengthy list of enumerated elements contained in Bushfire Survivors' Points of Claim and in its Notice to Admit Facts. In this motion, the topics were not immediately set out in any discernibly coherent fashion.

The Notice of Motion hearings

Bushfire Survivors' Notice of Motion was heard by me on 15, 20 and 23 October 2020. The hearings were held, as a consequence of the COVID-19 pandemic, using Microsoft Teams software without the necessity for any physical attendance in the courtroom. They were conducted in accordance with the Court's COVID-19 Pandemic Arrangements Policy.
Bushfire Survivors were represented by Mr G Kennett SC and Mr D Hume, barrister. The EPA was represented by Mr O Jones, barrister, for the substantive elements of these hearings (the third occasion being, effectively, a formal process to finalise those matters arising from what had occurred on the two earlier occasions).

The approach to be taken here

Although, in proceedings such as these, caution will need to be exercised by a trial judge in approaching the exercise of functions by a body such as the EPA (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40-41) and there have been differing approaches taken concerning the appropriateness of permitting reliance on expert evidence in some Class 4 proceedings (Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38), I am nonetheless satisfied that, at least at these initial stages, leave is appropriate to be granted to Bushfire Survivors to file and serve expert evidence upon which it would seek to rely.
As Molesworth AJ observed in Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88, at [42], when permitting the preparation and filing of such evidence, questions of admissibility of such evidence remain a matter for the trial judge.

When "facts" are not facts but are contestable opinions

An example of the problem arising from the Bushfire Survivors' Notice to Admit Facts can be seen from what was set out in it, at par 10, where the "fact" to which agreement was sought was a proposition in the following terms: 10 Unregulated release of greenhouse gases is the greatest threat to the environment of NSW.
It was clear from the inclusion of the word "greatest" in the example above that this "fact" was, truly, an expression of an opinion - an opinion which was capable of being the subject of contest, given the nature of the proceedings which Bushfire Survivors has commenced against the EPA.

The position at the end of the interlocutory hearings

During the course of the Notice of Motion hearings, Bushfire Survivors proposed an Amended Notice of Motion. The scope of evidence in the proposed Amended Notice of Motion was somewhat better structured than had originally been proposed but was not, as I observed to the representatives of the parties, in a form that I could consider appropriate as providing sufficient clarity and direction for the scope of expert evidence capable of being given leave for potential reliance at trial.
As a consequence, in an iterative process, discussion took place concerning what might be the nature of propositions and/or questions which might provide an acceptable basis upon which I might consider the granting of leave to Bushfire Survivors to file and serve expert evidence upon which they could seek to rely at the substantive hearing. No objection to this iterative process was raised on behalf of the EPA.
After the conclusion of the first two hearings noted above at [10], a proposed Further Amended Notice of Motion was provided to me with attached draft propositions/questions to be addressed by Professor Sackett. It was proposed, on behalf of Bushfire Survivors, that I should give leave for the filing and serving of expert evidence from Professor Sackett on the following propositions/questions: 1 Unregulated release of greenhouse gases is the greatest threat to the environment and people of N.S.W. as anthropogenic climate change has the potential to adversely and irreversibly alter all aspects of the natural environment. 2 To what extent have anthropogenic greenhouse gas emissions caused a long-term increase in extreme fire and in the length or the fire season, across Australia. 3 Whether and why the world is or is not on target to achieve a global temperature rise of no more than 1.5 degrees Celsius above pre-industrial levels. 4 Whether and why the current emissions reduction trajectory for Australia is or is not in line with and appropriate to limiting global temperature rise to no more than 1.5 degrees Celsius above pre-industrial levels. 5 Whether and why the current emissions reduction trajectory for New South Wales is or is not in line with and appropriate to limiting global temperature rise to no more than 1.5 degrees Celsius above pre-industrial levels. 6 Whether or not (and why) the objectives, guidelines and policies identified by the Respondent: (a) regulate or reduce direct and indirect sources of greenhouse gas emissions in a manner consistent with global temperature rise being limited to 1.5 degrees Celsius from preindustrial levels and (b) are fit for purpose in protecting or mitigating against the threat posed by climate change to the quality of the environment and the people of New South Wales
The EPA's position on these questions, was, as I understood it, that it did not accept that expert evidence would necessarily assist in the proceedings, but that, if leave was to be given by me, the propositions/questions set out above were ones to which it did not express objections as to their formulation. In this context, it is to be observed that the EPA's position as to admissibility and relevance of such evidence as might arise from expert opinion concerning those propositions/questions was expressly reserved (a position with which Bushfire Survivors' representatives did not demur).

Consideration

My preliminary reaction to the matters set out in Bushfire Survivors' Points of Claim and Notice to Admit Facts, and in the formal and informal reply documents from the EPA, was twofold.
First, the nature of the matters set out in these documents contained, in their terms, likely scope for significant further pre-trial interlocutory disputation which was potentially able to be cured (or if not cured, at least limited) by giving Bushfire Survivors leave to seek to rely on expert evidence (if such expert evidence was prepared on the basis of a limited number of more specifically framed topics posed as specific propositions and/or questions).
In this context, of course, any leave being granted by me to permit the filing and serving of such more focused expert evidence would be a determination of a very preliminary nature - with questions of admissibility and relevance necessarily awaiting determination by the trial judge at the time when Bushfire Survivors sought to tender such evidence.
Second, as observed at [6], the EPA's Points of Defence had annexed to it a 24-page list of documents (containing the titles of 300 documents of a policy nature) advanced by the EPA as demonstrating the invalidity of the implicitly omnibus complaint levelled at the EPA by Bushfire Survivors concerning the broad area of policy responses to climate change.
To the extent that expert evidence had, at least inherently, some potential to provide a more focused (but nonetheless sufficiently broad) canvas for the consideration of the issues involved, I was of the view that permitting the filing and serving of such evidence had significant potential to provide assistance to the trial judge (leaving, of course, determination of admissibility to that trial judge when the substantive hearing eventually took place).
It has always been my view that, if a sporting analogy was ever appropriate to be adopted for litigation as is involved in these proceedings, such an analogy would be with a game of tennis - with the length and intensity of the (forensic) rallies being, in part, dependent on the evidence advanced and the replies to it and, also in part, on the skill of the analysis and submission of the advocates on behalf the parties.
The nature of the opening skirmish demonstrated by Bushfire Survivors' Points of Claim and Notice to Admit Facts, and the formal and informal responses to them from the EPA, evidence that, at least at this preliminary stage, tennis was an inapt sporting analogy, and that golf might be a better one - with, at the present time, the parties playing different holes, with one being on the front nine of the course, with the other to be seen, figuratively, to be playing on the back nine of that course. Thus, there was not immediately apparent a coherent and appropriately defined "match" or contest between the parties.
It was my assessment that granting leave to Bushfire Survivors to file and serve expert evidence (with the EPA having the opportunity, after this had occurred, to consider whether or not it wished to engage its own expert in reply) provided at least the opportunity for the trial judge to be presented with a more coherent framework for addressing the underlying issues of complaint arising in these proceedings.
When the propositions/questions set out at [18] came before me on 26 October 2020 with the proposal that I grant leave for Bushfire Survivors to rely on a Further Amended Notice of Motion permitting it to file and serve evidence on the basis of them, I indicated to the parties that I was not satisfied with the broad (and apparently unconfined) scope of questions (2) to (5) as there set out.
I indicated that, in the terms formulated, each of those questions did not incorporate any qualification to ensure that they caused the expert witness to address, with sufficient specificity, matters within the statutory jurisdiction of this Court. I indicated that I was only prepared to grant leave if the words "and how that would impact on the environment of New South Wales" were added at the end of each of those four questions.
It was then indicated for Bushfire Survivors that there was no objection to the adding of that framing phrase as I proposed. A similar position was adopted on behalf of the EPA (but being a position subject to retention of the broad caveat, earlier discussed, for which the EPA's attitude was reserved).

The form of my orders

As a consequence, I made orders granting Bushfire Survivors leave to rely on the Further Amended Notice of Motion and, thus, granting leave to file and serve expert evidence: 1. From the specifically nominated expert (Professor Penny Sackett); 2. On the six set out propositions/questions as amended by me; 3. Subject to the right of the EPA being permitted to seek leave to rely on expert evidence in reply from its own (to be nominated) expert if the EPA considered that this was an appropriate course for it to follow; and 4. Subject, also, to the general reservation of the EPA's rights to press matters of admissibility and relevance with respect to Bushfire Survivors' expert evidence when the matter proceeded to trial.
For completeness in understanding this decision, a copy of the orders as signed by me (together with the annexed propositions/questions in the form modified as discussed above) are reproduced as Annexure B to this decision.

Annexure B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2020

(2013) 195 LGERA 229

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