Running strategic climate litigation

The Commonwealth Bank of Australia positions itself as a leader in Australia’s transition to a net zero emissions economy by 2050. In 2019, it published its first Environmental and Social Framework, within which it committed to only financing new oil and gas projects if it first assessed the environmental, economic and social impacts of the loan activity, and if the project was in line with the goals of the Paris Agreement. Despite this, longstanding CBA shareholders Guy and Kim Abrahams became aware that CBA had provided financing for seven new oil and gas projects.

Equity Generation Lawyers, representing the Abrahams, filed an application in the Federal Court of Australia seeking to inspect internal CBA documents under section 247A of the Corporations Act 2001 (Cth). The Court ordered by consent on 4 November 2021 that CBA produce documents to the Abrahams, and in April 2023 ordered that the Abrahams may use certain documents received for the purpose of further litigation against CBA and for forwarding documents to regulators APRA and ASIC. Public analysis reveals that CBA has greatly reduced its oil and gas lending since the commencement of this case.

This case was described as a “novel legal claim that experts predict could spark a “new avenue” for climate litigation” (Australian Financial Review), setting a precedent for other financial institutions/companies relating to oil and gas lending and s247A proceedings.

In the climate fight, no board documents are safe.