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Federal Court Judgments
By Zoe Bush, Anthony LoSurdo SC, Dr David J Townsend and Dan Starr
Environment
In a globally significant development in emergent climate change litigation, the Federal Court has found the Commonwealth Environment Minister (Minister) owes all Australian children a duty of care to avoid causing personal injury or death arising from the emission of greenhouse gases when deciding whether to approve an extension to a coal mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The decision is the first time in the world that an executive member of government has been held to owe a duty of care to avoid harms associated with climate change. In February 2016, Whitehaven Coal applied to the Minister to extend its Vickery Coal Project in accordance with s 68 of the EPCB Act (the Extension Project). If approved, the Extension Project would increase total coal extraction from the mine by 33 million tonnes (Mt). Once combusted, the additional coal would produce about 100 Mt of CO2. The Minister’s delegate determined the Extension Project constituted a ‘controlled action’ under s 75(1) of the EPBC Act, and so required approval by the Minister under ss 130(1) and 133 of the EPBC Act. The Minister had not yet made her decision when a Sister of the Brigidine Order of Victoria, as litigation representative for eight Australian children, applied for a declaration that the Minister owed the children and other Australian children a duty of care when exercising her powers under ss 130 and 133 of the EPBC Act and an injunction to restrain an apprehended breach of that duty. In finding a novel duty of care to avoid the risk of personal injury, Bromberg J considered reasonable foreseeability strongly favoured the recognition of the duty, as did the salient features of control, vulnerability and reliance. Incoherence and indeterminacy he regarded as ‘agnostic’, although incoherence proved determinative in denying the existence of a duty of care that extended to property and pure economic loss. His Honour concluded a reasonable person in the Minister’s position would foresee that, by reason of the Minister’s approval of the Extension Project, Australian children are exposed, through climatic hazards, to the risk of death or personal injury. This conclusion was predicated on his Honour’s acceptance of unchallenged expert evidence that: a. the best future stabilised global average surface temperature which can be realistically contemplated is 2°C above the pre-industrial level; and b. if the global average surface temperature increases beyond 2°C, there is a risk, moving from very small (at about 2°C) to very substantial (at about 3°C), that Earth’s natural systems will propel global surface temperatures into an irreversible 4°C trajectory, resulting in global average surface temperature reaching about 4°C above the pre-industrial level by about 2100.
Photo: Mount Piper coal Power Station, Portland NSW
His Honour accepted that the risk of harm to Australian children from climatic hazards brought about by global average surface temperatures is on a continuum in which both the degree of risk and the magnitude of potential harm will increase exponentially if the earth moves beyond 2°C towards 4°C above the pre-industrial level. The Minister contended that her prospective contribution to the risk of Australian children being exposed to this harm, if she were to approve the Extension Project, was negligible in circumstances where the emission of a further 100 Mt of CO2 would result in an increase of one eighteen-thousandth of a degree Celsius. Bromberg J rejected the Minister’s contention on the basis of the following: a. There was evidence to suggest that the emission of 100 Mt of CO2 would not be consistent with the available carbon budget necessary to limit global warming to a 2°C target, because it is unlikely there is capacity for any new coal reserves to be developed. b. Even if the 100 Mt of CO2 to be emitted was not outside the available carbon budget for 2°C, there was a plausible prospect that a ‘tipping cascade’ would be triggered even by a fractional increase in temperature, and there was no evidence to suggest the ‘tipping cascade’ had yet been triggered. Accordingly, his Honour concluded that, while the Minister’s prospective contribution to the risk of exposure to harm made by approving the Extension Project may be characterised as small or tiny, it was not so insignificant as to deny a real risk of harm to Australian children given that even an infinitesimal increase in global average surface temperature may trigger a 4°C world. The consequent harm was ‘so immense that it powerfully supports the conclusion’ that Australian children should be regarded as persons who are ‘so closely and directly affected’ that the Minister ought reasonably to have them in contemplation when exercising her powers under ss 130 and 133 of the EPBC Act. Turning to the salient features that weighed in favour of recognising a duty of care, Bromberg J concluded the Minister had ‘very substantial, if not exclusive, control over the real risk of harm to the Children that would flow from her approval of the Extension Project’ because it was her exercise of power upon which the creation of that risk depended. In doing so, his Honour rejected the Minister’s contention she had no control over the prospective harm because she could not control other elements in the likely causal chain that would lead to Australian children being harmed, such as whether or not the Extension Project proceeded. His Honour reasoned that, where a third party has the capacity (or even the primary responsibility) to avert a risk of harm, this does not of itself deny the control that an entity with overarching responsibility for the risk of harm may hold. Bromberg J held vulnerability was an affirmative indicator of a duty of care due not only to the magnitude of the potential risk of harm, but also Australian children’s powerlessness to avoid that harm. He considered that vulnerability had a nexus with the Minister because the source of Australian children’s exposure to risk included her potential approval of the Extension Project. Further, while it was not a case where a defendant had assumed responsibility for the plaintiff, the general rather than individual nature of the Minister’s responsibility for Australians, derived from the EPBC Act, pointed toward the existence of reliance as a salient feature. The Minister contended that incoherence and inconsistency with the EPBC Act and public law principles determinatively foreclosed the existence of the posited duty. In terms of the EPBC Act, she primarily argued the posited duty would impair her process of decisionmaking under ss 130 and 133 because it would require that avoidance of harm to Australian children be effectively elevated to a mandatory and paramount consideration and would thus ‘distort’ or ‘skew’ the Minister’s decision. His Honour accepted the Minister’s argument in so far as it concerned a duty of care in relation to property and economic loss. He reasoned such a duty would functionally impair the Minister’s decision-making under ss 130 and 133 by elevating the importance of Australian children’s economic interests above the economic interests of today’s adults, in circumstances where the EPBC Act contained no suggestion that these interests should be treated differently. There was no statutory purpose that negated this functional inconsistency. The EPBC Act did not require the protection of economic or property rights; indeed, it contemplated such interests or rights may be compromised in order to protect the environment. However, his Honour rejected the Minister’s contention with regard to a duty of care to avoid the risk of personal injury. He considered the avoidance of personal injury to Australian children was both consonant with a statutory purpose of the EPBC Act and, perhaps in one of the more surprising aspects of the decision, a mandatory relevant consideration the Minister must take into account in exercising her powers under ss 130 and 133. Accordingly, his Honour considered the imposition of the duty would facilitate rather than impair the Minister’s exercise of her powers. Even if an impairment had been established, he nonetheless regarded it as outweighed by the consistency between the purpose of the EPBC Act and the posited duty. His Honour also rejected the Minister’s contention that the posited duty was incoherent with administrative law principles on the basis that the subject of the duty was not the validity of any decision made or to be made by the Minister under the EPBC Act. Accordingly, the negligence claim was ‘not brought in addition to or in substitution for a public law remedy’. Finally, Bromberg J concluded indeterminacy did not have a determinative negative role because, in light of his conclusions regarding incoherence, the posited duty only concerned personal injury (as opposed to pure economic loss, with which indeterminacy is usually concerned), and the likely number of potential claimants and the likely nature of their claims was ascertainable. Ultimately, while concluding a novel duty of care existed, Bromberg J dismissed the application for an injunction on the basis it was preferable that the grant of any injunctive relief that may be appropriate await the Minister making a decision in relation to the Extension Project. The decision is available at: https:// www.judgments.fedcourt.gov. au/judgments/Judgments/fca/ single/2021/2021fca0774. Postscript: On 8 July 2021, Bromberg J made a formal declaration recognising the duty of care owed by the Minister to Australian children: Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774. The Minister has expressed her intention to appeal the declaration but has not filed a notice of appeal as at the date of writing.
Corporations
Financial services and markets – liquidation – whether the primary judge erred in holding that the date for valuation of client entitlements should be the date of administration
Loo, in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Quinlan (Liquidator) [2021] FCAFC 186 (26 October 2021) (Middleton, Beach and Moshinsky JJ)
Introduction
Halifax Investment Services Pty Ltd (in liquidation) (Halifax AU) held 70 per cent of the issued shares in Halifax New Zealand Limited (in liquidation) (Halifax NZ). Halifax AU held an Australian Financial Services Licence. It was not a licensed broker but facilitated the acquisition of shares by clients through an online broker and made a range of financial products available to clients. Halifax NZ held a Financial Service Provider’s Licence granted by the Financial Markets Authority (New Zealand). Halifax NZ also acted as a broker for its clients in respect of various exchange-traded products including shares and warrants.
Prior to the administration and subsequent liquidation of both companies and in breach of applicable statutory requirements, there was commingling between Halifax AU accounts, between Halifax NZ accounts, and between accounts of Halifax AU and Halifax NZ, and there was a deficiency in the funds held by Halifax AU and Halifax NZ to meet client entitlements. The moneys paid to Halifax AU and Halifax NZ by clients were held on trust for the clients’ benefit. As at the date of administration of the companies there was, relevantly, a single deficient mixed fund.
The issue
The primary issue in the proceedings was whether the primary judge erred in holding that the date for valuation of the proportionate entitlements of clients (or investors) in respect of a single deficient mixed fund was the date of administration of the relevant companies. The applicant on behalf of a certain category of investors, contended that the primary judge erred and that her Honour should have adopted a date as close as possible to the date for final distribution. The date of valuation issue arose in circumstances where the administrators/ liquidators had taken the unusual step of permitting investors to maintain open positions after their appointment. Some investors had maintained open positions and the value of some of those positions had increased.
A further interesting aspect of the proceedings is that the issue was, at the request of the parties, heard jointly by the Court of Appeal of New Zealand and the Full Court of the Federal Court of Australia sitting in joint session with the two Courts deliberating jointly but each Court issuing its own decision.
Decision
In dismissing the appeal, the Full Court of the Federal Court:
a) noted that the primary judge’s decision with respect to the date of valuation issue was discretionary and that appellate intervention requires satisfaction of the well-established grounds of appeal identified in House v The King (1936) 55 CLR 499 b) stated that the fact that the liquidators permitted investors to maintain open positions and that investors had a choice whether or not to do so, does not support the appellants’ contention as to the adoption of a date as close as possible to the date for final distribution (rather than the date of administration) as the date for valuation of clients’ proportionate entitlements because:
(i) having regard to the statutory framework and the nature of the trust, the date of administration provides a logical starting point for the purposes of valuing the proportionate entitlements of clients. To the extent that the trust arose by force of reg 7.8.03, the date of administration triggered the operation of that regulation in the circumstances of this case. To the extent that the trust arose pursuant to s981H of the Corporations Act, while the trust already existed before the date of administration, the administrators became the trustees of the trust on their appointment as administrators (ii) the deficiency in the mixed fund existed at the date of administration and the fund was first constituted for the purposes of pari passu distribution on that date. In those circumstances, there is a logic in valuing the proportionate entitlements of investors as at the date of administration
(iii) the adoption of the date of administration in this case is consistent with authorities that have adopted, in the context of the pari passu distribution of a deficient trust or other fund in shortfall, the date when the fund was first constituted for the purposes of pari passu distribution (see, eg, Re MF Global Australia Ltd (in liq) (2012) 267 FLR 27 and Re Lehman Brothers International (Europe) (in administration) [2009] EWHC 3228 (Ch)). The Court of Appeal of New Zealand delivered its own judgment (Loo v Quinlan and Kelly (in their capacity as liquidators) [2021] NZCA 561 (Kós P, Cooper and Goddard JJ)), on the same date, and to the same effect, as that of the Full Federal Court. The NZCA judgment is here: https:// www.courtsofnz.govt.nz/assets/ cases/2021/2021-NZCA-561.pdf.
Practice and procedure
Offers of compromise – indemnity costs orders – common law (Calderbank) offer of compromise – whether rejection of offer imprudent or unreasonable
In Hardingham v RP Data Pty Ltd (No 2) [2021] FCAFC 175 (1 October 2021) the Full Court of the Federal Court of Australia (Greenwood, Rares and Jackson JJ) considered the question of what content was required to constitute an effective offer of compromise under the principles in Calderbank v Calderbank [1976] Fam 93 (Calderbank) and, where the offer was rejected and the offeree failed to better the offer in judgment, whether rejection of the offer by the offeree qualified as “imprudent or unreasonable” such as to give rise to an indemnity costs order in favour of the offeror.
Background
At trial, the primary judge held that copyright in certain photographs and plans held by Hardingham and exclusively licensed to Real Estate Marketing Australia Pty Ltd (REMA) was not infringed by RP Data Pty Ltd (RPD). (The role played by another party, Realestate.com.au Pty Ltd, in the trial and appeal is not considered in this case note and is excised for the
sake of clarity.) The basis for the decision was that the contract between REMA and RPD was to be construed such as to contain a term allowing for use of the photographs and plans by RPD, which term was either to be inferred from their course of dealing or implied in order to give business efficacy to their agreement. Costs of the trial were ordered to be borne by Hardingham and REMA. Hardingham and REMA appealed to the Full Federal Court. In the course of correspondence after institution of the appeal, Hardingham and REMA informed RPD that, although they had litigation funding for the costs of the trial, it did not cover an adverse costs order at trial nor did it cover the appeal proceedings (which were being conducted by Hardingham and REMA’s lawyers on a speculative basis).
The offer
After the filing of the notice of appeal by Hardingham and REMA, but before the parties had filed their outlines of argument on the appeal, the solicitors for Hardingham and REMA sent a letter to the solicitors for RPD proposing terms of compromise of the appeal (Offer). The Offer proposed that the appeal be dismissed save that the costs order of the primary judge be varied such that each party bear their own costs of the trial, and further that each party bear their own costs of the appeal. The Offer was described as being a “walk away” offer, on the basis of the impecuniosity of the appellants and the impact of COVID-19 on the appellants’ business.
Importantly, the Offer did not constitute an offer of compromise under Pt 25 of the Federal Court Rules 2011 (Cth), as it was not open for a minimum of 14 days as required by r25.05(3) and was not in accordance with the form required by r25.01(1). Therefore, if the Offer were to be effective as an offer of compromise with consequences for the making of costs orders, it could only be so under the common law principles enunciated in Calderbank.
The heading of the Offer contained the words “without prejudice save as to costs”. The Offer did not express itself as being made pursuant to the principles in Calderbank, nor otherwise refer to Calderbank. The Offer did not refer to the potential of being relied on in support of an argument for indemnity costs. The Offer did not engage with the merits of the parties’ cases on appeal, nor explain why the Offer was a reasonable one.
The Offer was rejected by RPD. The appeal proceeded and judgment was ultimately delivered in favour of Hardingham and REMA, with the question of costs reserved.
The question of costs fell to be decided by reference to the Offer. RPD accepted that they should pay Hardingham and REMA’s costs of the appeal on a party-and-party basis, but opposed that they should pay Hardingham and REMA’s costs on an indemnity basis from the date of the expiry of the Offer.
Decision
In contradistinction to an offeror’s entitlement to certain costs orders where an offer was made under Federal Court Rules Pt 25 (and analogues such as Supreme Court (General Civil Procedure) Rules 2015 (Vic) Ord 26), where an offer was made under common law principles, the making of any costs orders remains in the discretion of the Court. Case law has established that a rejected Calderbank offer may result in an indemnity costs order where the rejection was “imprudent or unreasonable”, although there is no presumption in favour of such an order merely because the offeree has failed to better the offer in judgment.
Form of the Offer
There is no rule that the offeror must provide a reasoned explanation of the weaknesses in the offeree’s case and the reasonableness of the offer (at [22]). Further, the requirement that parties comply with the overarching purpose of facilitating a just resolution of disputes as quickly, inexpensively and efficiently as possible is taken into account when the Court exercises its discretion as to costs, and this in effect requires the offeree to consider the reasonableness of the offer whether or not the offeror has explained its supposed reasonableness (at [23]). The Court flatly rejected the submission that the Offer did not qualify as a Calderbank offer merely because it did not explicitly cite Calderbank or because it did not explicitly refer to the seeking of indemnity costs. Given the inclusion of the words “without prejudice save as to costs” in the Offer, RPD could not have been in any doubt as to the basis on which the Offer was made and the indemnity costs consequences thereof: regardless of the Offer, success on the appeal would have ordinarily led to a party-and-party costs order in favour of Hardingham and REMA anyway, so the only consequence of the Offer can have been in respect of
indemnity costs (at [24]-[25]). Given the quantum of legal costs in commercial litigation, it was recalled that an offer to “walk away” at a certain point in litigation did represent a genuine compromise, as the offeror was thereby foregoing the possibility of recovering its legal costs incurred to date.
Reasonableness of rejection of the Offer
The reasonableness of an offer falls to be determined from the perspective of the offeree at the time of the offer, but this question does not involve considering what other offers might hypothetically have been made or other outcomes might hypothetically have been negotiated (at [30]). The Court held that the rejection of the Offer was imprudent and unreasonable due to several factors. First, RPD was aware that Hardingham and REMA were impecunious and that their litigation funding did not cover the adverse costs order below, so there was no real prospect of RPD recovering those costs anyway. Second, RPD was aware that Hardingham and REMA’s litigation funding did not extend to the appeal, such that even if the appeal were ultimately dismissed, any legal costs of the appeal incurred by RPD would likely end up being irrecoverable as well. Third, RPD was aware that Hardingham and REMA’s impecuniosity had been aggravated by the then-current COVID-19 lockdown. Fourth, RPD was indeed able to assess the reasonableness of the Offer because it was aware of the strengths and weakness of the parties’ respective cases: the notice of appeal had already set out the legal issues to be argued by the appellants and RPD was already familiar with the factual issues, which were the same as in the trial below (at [28]). Accordingly, the Court ordered that RPD pay Hardingham and REMA’s costs of the appeal on a party-and-party basis up to the time of the expiry of the Offer, and thereafter on an indemnity basis.
Administrative law – practice and procedure
Application for enforcement of undertaking as to damages in administrative law proceedings
In Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills and Employment (No 3) [2021] FCA 1537 (9 December 2021) the applicant had previously given an undertaking as to damages in support of an application to stay a decision under s15 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), pending the completion of the judicial review proceeding. The applicant, an operator of a child care service, had sought judicial review of a decision cancelling his provider approval under s195 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) as a child care service for the purposes of the family assistance law (cancellation decision). The Court granted a stay of the cancellation decision until the final determination of the applicant’s originating application on the applicant through her legal representative providing the usual undertaking as to damages. Subsequently the Court dismissed the applicant’s originating application and made orders lifting the stay of the cancellation decision. The respondent (Secretary) then applied for damages pursuant to the applicant’s undertaking as to damages. This case is an example of an attempt to enforce the “usual undertaking as to damages”, which is defined by the Court’s relevant Practice Note as an undertaking to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person affected by the operation of the interlocutory order: see [2.2] in GPN-UNDR. It was common ground that the effect of the stay order was to enable Billan Family Day Care to continue to operate from 28 June 2020 until 20 December 2020 (stay period). During the stay period, the Secretary paid the applicant a total net amount of $921,971.28 in child care subsidies. The applicant also received $354,682.60 in COVID-19 related payments as an approved provider of child care services. The Secretary sought orders for the applicant to pay, by way of damages, both the amount of the child care subsidy payments and the COVID-19 related payments. The Court summarised the applicable legal principles for the enforcement of the undertaking as to damages (at [28]-[29]). Based on the authorities, the purpose of requiring an undertaking as to damages is to compensate the party who has been adversely affected by the interlocutory order, and so ensure that justice is done (at [32]). The effect of an order for damages on the party that has had the benefit of the interlocutory order is not a relevant consideration (at [33]). The Court rejected the applicant’s submission that the undertaking as to damages should not be enforced having regard to the administrative law context in which the stay order was made and the undertaking given. O’Bryan J explained (at [34]): “. . . there is ‘no hard and fast rule’ (Botany Bay at 86) in the administrative law context that a party seeking interlocutory relief should be required to give an undertaking as to damages. In exceptional instances, a Court might not consider it appropriate to require an undertaking where an applicant in an administrative matter is entitled to interlocutory relief. However, it is apparent from the cited authorities that the appropriate time to consider whether an undertaking as to damages should be given is at the point that the stay application is considered, rather than the time for its enforcement. . . .”
Further, there were not any special circumstances that displaced the ordinary presumption that the applicant should compensate the Secretary for damages incurred by reason of the stay order in circumstances where the applicant was not successful in the final determination of its originating application (at [38]). However, the Secretary failed to establish that the Commonwealth should be compensated for the child care subsidy payments made to the applicant during the stay period (at [39]-[44]). Unlike the child care subsidies, the Court found that the Commonwealth would not have incurred, as an outgoing, the COVID-19 related payments made to the applicant during the stay period if the stay order had not been made (at [45]-[49]). The applicant was held liable to pay damages to the Commonwealth pursuant to the undertaking as to damages for the COVID-19 related payments totalling $354,682.60 (at [50]).
Administrative law
Decision refusing parole – judicial review – failure to consider submissions advanced by the applicants
In Pulini v Assistant Minister to the Attorney-General of the Commonwealth of Australia [2021] FCA 1543 (10 December 2021) the Court heard an application for judicial review of decisions of the Assistant Minister to refuse the applicants parole. The applicants, a married couple, are each imprisoned under federal sentences of imprisonment. The applicants’ first ground alleged that the Assistant Minister was bound, but failed, to consider substantial and clearly articulated submissions made by them. The submissions alleged not to have been considered were: first, that the time of the
Assistant Minister’s decision was optimal for the applicants’ release on parole having regard to their rehabilitative progress; and, second, that their youngest child was struggling in his parents’ absence and needed his parents’ support (at [31]). The Court summarised the principles concerning the requirement of a decisionmaker to consider the submissions advanced by a person subject to a decision and as applied in the context of parole (at [33]-[37]). The Court accepted the applicants’ submissions that (a) this was the optimal time for their release on parole and (b) that their youngest child was struggling in his parents’ absence and needed his parents’ support were each clearly articulated arguments advanced in support of parole (at [39] and [41]). The Court held that the latter, the welfare of the youngest child submission, was not considered by the Assistant Minister in refusing parole. In so finding, the Court addressed the content of the requirement under s19AL(2)(a)(ii) of the Crimes Act 1914 (Cth) for the provision of a statement of reasons for the refusal of parole, which is to be read with s25D of the Acts Interpretation Act 1901 (Cth) which concerns the content of a statement of reasons for decision (at [55]-[56]). In this case, the applicants’ submissions containing the welfare of the youngest child submission were within the bundle of material placed before the Assistant Minister. However, it was not mentioned in reasons refusing parole. Rangiah J held that this was a case where the appropriate inference to draw was that the Assistant Minister did not consider the welfare of the youngest child submission and that was a denial of natural justice (at [65]). The remaining grounds of illogical reasoning and inadequate reasons were rejected.
Administrative law – migration law
Refusal of protection visa – whether right to enter and reside in a third country imports requirement of some minimum physical and economic conditions – whether failure to consider DFAT country report
In DQD16 v Minister for Immigration and Border Protection [2021] FCA 1586 (15 December 2021) the Court allowed an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) affirming a decision to refuse the appellants protection visas under s65 of the Migration Act 1958 (Cth) (Act). The appellants are husband and wife, from the Indian state of Punjab. The appellants are both of the Sikh religion, but the husband is of a higher caste compared to the wife. Because of the inter-caste nature of their marriage, the appellants claimed to have suffered persecution in their home state, as well for other reasons including the husband’s political opinion. The AAT had decided that under s36(3) of the Act, Australia was taken not to have protection obligations in respect to the appellants, because they had not taken all possible steps to avail themselves of their right to enter and reside in Nepal. That was on the basis that the appellants had this right because article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals such as the appellants can enter and reside in Nepal. The appellants’ first ground raised whether the right to enter and reside in a third country (namely, Nepal) imported requirement of some minimum physical and economic conditions for purposes of s36(3) of the Act. Mortimer J held that the concept of residence implies, at least, some form of reasonable access to the necessities of life, enough to sustain oneself so as to be described as “residing” (at [53]). However this ground still failed as the AAT made findings on the issues that were open to it (at [54]). The applicants succeeded on their second ground that the AAT contravened s499 of the Act by failing to apply Ministerial Direction No 56 and take into account in its decision the DFAT Country Information Report – Nepal dated 21 April 2016 (at [66]-[79])
Zoe Bush is a Senior Solicitor at the Environmental Defenders Office zoe.bush@edo.org.au Anthony LoSurdo SC is a barrister, arbitrator and mediator at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne, William Forster Chambers, Darwin and Outer Temple Chambers, London and Dubai. Dr David J Townsend is a barrister at 3rd Floor Wentworth Chambers, Sydney Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
