McFadzean & Ors v CFMEU & Ors

[2008] HCATrans 213

[2008] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M8 of 2008

B e t w e e n -

GAVAN MICHAEL McFADZEAN

First Applicant

KRISTEN LEES

Second Applicant

TESSA JACKSON

Third Applicant

DONNA GROSS

Fourth Applicant

ALEXANDER JOHN BOWLES

Fifth Applicant

LEIGH DWAN

Sixth Applicant

AMY EPSTEIN

Seventh Applicant

PAUL ANTHONY FOWKES

Eighth Applicant

ELI GREIG

Ninth Applicant

JULIE ANNE COLSON

Tenth Applicant

JANINE DAWSON

Eleventh Applicant

and

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

First Respondent

JANE CALVERT

Second Respondent

CHRISTOPHER CLIFFORD WHEELER

Third Respondent

GEORGE MOLLOY

Fourth Respondent

MICHAEL JOSEPH NOCERA

Fifth Respondent

BARRY JOHN DENT

Sixth Respondent

DONALD GORDON PEARCE

Seventh Respondent

DAVID REECE SHEPPARD

Eighth Respondent

TREVOR FRANCIS WILSON (REPRESENTING ESTATE OF GARY LEON WILSON)

Ninth Respondent

WAYNE JOHN McGEE

Tenth Respondent

BRIAN PATRICK WHEELER

Eleventh Respondent

CHARLIE PAUL NEMET

Twelfth Respondent

SHANE JOHN FLANNIGAN

Thirteenth Respondent

WAYNE ANDREW BENSON

Fourteenth Respondent

Application for special leave to appeal

GLEESON CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 2.30 PM

Copyright in the High Court of Australia

MR I.R.L. FRECKELTON, SC:   May it please the Court I appear with MR C.G. FAIRFIELD and MS K. VAVOULIS for the applicants.  (instructed by Williams Winter)

MR B.W. WALKER, SC:   May it please the Court I appear with my learned friend, MR M.A. IRVING, for the respondents.  (instructed by Slater & Gordon Solicitors – Melbourne)

GLEESON CJ:   Yes, Mr Freckelton.

MR FRECKELTON:   Thank you, your Honour.  Your Honours, this deals with an absolutely fundamental issue for the law of Australia.  It deals with the nature and meaning of liberty.  Now, this Court and many others have made statements over the years about the significance of liberty.  Justice Fullagar in Trobridge v Hardy in 1955 said the right to be free from interference with one’s personal liberty is one of the most elementary and important of all common law rights and likewise in recent times in A v the Secretary of State for the Home Department, Lord Hope of Craighead observed that is impossible ever to overstate the importance of the right to liberty in a democracy.

Article 9 in the International Convention on Civil and Political Rights likewise guarantees the right not to be deprived of liberty, except on such grounds and in accordance with such procedure as is established by law.  Those statements undoubtedly are uncontroversial.  The issue is what constitutes liberty and what measures are in place within our legal system to protect such liberty?  The tort of false imprisonment ‑ ‑ ‑

GLEESON CJ:   What were the competing points of view on that question that were material to the outcome of the case?

MR FRECKELTON:   Here, your Honour?  The issue comes down to the content of the tort, your Honour.  It is as straightforward as that.  What we say is that it is important to view the tort and its function within the modern context.  This Court has had very few opportunities to do that and what we say about the Court of Appeal judgment is that it is very much focused upon essentially 19th century and early 20th century law on the subject.  Let me be more specific.

GLEESON CJ:   I had an impression that it might have been focused on the facts.

MR FRECKELTON:   Well, those of course of well, but it is always the law as applied to the facts.

GLEESON CJ:   Which are the particular passages in the reasoning of the Court of Appeal that you say show a misunderstanding of the concept of liberty?

MR FRECKELTON:   Can I say this first.  What we say the tort of false imprisonment consists of is a total restraint of liberty without lawful justification, namely deprivation of the capacity to choose whether to come or go.  The Court of Appeal and the judge at first instance took a somewhat different approach to this.  The reason why I put that ‑ ‑ ‑

KIEFEL J:   I thought the Court of Appeal actually answered the question by saying that there was a choice and it was exercised.

MR FRECKELTON:   That was not quite, your Honour, in those terms.  What the Court of Appeal said was that based upon what the trial judge had said was that the protestors wished to stay.  That is different because what we say is at the very heart of this tort – and it matters – is that persons should always have the choice about whether to come or go, whether or not they exercise it in the circumstances or whether at some particular point in time they are wishing to exercise it.  The very essence of liberty is to have that entitlement and that is why in Ruddock v Taylor Justice Kirby put it in terms of the focus of the tort being upon the vindication of liberty and reparation to the victim.

GLEESON CJ:   Where do we find in the reasoning of the Court of Appeal the error on which you rely?

MR FRECKELTON:   The Court of Appeal formulates the test at paragraph 23 in four ways.  It says that “restraint must be total” – we accept that.  It “may be comprised of a threat against the person or valuable property” – we accept that.  It is in c) and d) that the difficulties and the errors, we say, commence, your Honour.  First:

the restraint may exist in submission in face of a threat…

d)The restraint must, however, be imposed contrary to the person’s will.

We say that by formulating it in that way - in other words, in focusing it in terms of an imposition of coercion inconsistent with the person’s will, the error is framed.  This is a subtle distinction, your Honour, but it is a very important one because the essence of what we say constitutes liberty is the freedom to make choices and with these people the creation of the obstruction – the threat that they could leave but only if they promised never to protest again and the alternative being that they make their way through what has been called the “bush gate” constitutes a removal of the capacity to make choices.

GLEESON CJ:   In the passage from the reasons of the Court of Appeal that you just quoted, the Court of Appeal are simply recording what the trial judge observed and they are recording it in the context of what they describe as a recitation of relevant legal principles.  Was there any challenge in the Court of Appeal to the relevant legal principles as thus recited?

MR FRECKELTON:   The fundamental difference in the Court of Appeal, your Honour, I am instructed was in terms of the application of the legal tests to the facts as found by the trial judge.

GLEESON CJ:   Yes.

MR FRECKELTON:   We come to this Court saying that there is a significant issue in terms of the legal test in the contemporary era.  What we say, just briefly, is this.  It is important to look at this in historical perspective because if one goes back to the important decision of this Court in the Balmain New Ferry Company Case in 1906 the Chief Justice of this Court was prepared to postulate the appropriateness of a plaintiff removing himself from the premises by jumping from the pier into Sydney Harbour and postulated that that was an acceptable means of egress from the imprisonment as it was constituted by the turnstiles and similar.  What we say is that our attitudes in the contemporary era to liberty have evolved from that time.

GLEESON CJ:   Well you might be right about that, but where is the error in the reasoning of the Court of Appeal on which you rely in seeking special leave to appeal?

MR FRECKELTON:   It goes in two ways, your Honour, and the essence of it is in terms of “the reasonableness of egress” issue.  If there is a reasonable means of egress of course there cannot be imprisonment.  So much is uncontroversial, but the approach of the Court of Appeal in terms of where the bar is to be found can be seen in two places.  The first is at paragraph 68 where the Court referred to the potential for a person not to be imprisoned if their only option to “escape” as the Court put it, from a locked room was by “crawling through an air conditioning vent for two hours”. 

We say that regardless of the words uttered by the Court of Appeal that tells this Court a great deal about the actual approach of the Court in applying the law as enunciated to the facts and the facts were, as found by the Court at paragraph 77, that the egress was only by difficult, steep, wet, slippery, covertly potholed, snake and leech‑ridden bush without any paths.  Now, we say that in applying the reasonableness test - about which I
will address the Court in just a moment – one can see the approach actually being adopted by the Court by the postulate which they provided at paragraph 68.

Now, going to specifics, the Court of Appeal at paragraph 55 purported to synthesise the factors relevant to reasonableness of egress on the authorities.  That is to be found at page 694 of the application book and they identified four:  “threat or danger to the self” - we accept that threat or danger to self is an appropriate factor.  We note, however, that there is an omission of threat to others, and Garrett’s Case certainly stood for the proposition that that was appropriate and it is relevant in this context because there were a number of people involved with different circumstances, different conditions.

Secondly, the court contends that “threat or danger to property”, notably in this instance, including property to others, is a factor.  We say that this does not relevantly capture the relevant consideration because inability to take one’s own property – to remove one’s own property – to where one wants it to be should also be a factor, not just one’s fear – whether one has it or not – that it may be damaged if one cannot do it.  This situation is an archetypal example of that because a number of the applicants had cars and they could not remove them because of the conditions which were being imposed by the loggers.

KIEFEL J:   Does that mean that they are imprisoned though, or their cars are?

MR FRECKELTON:   No, that is an important question, your Honour.  We say that it means that they are – and we call in aid the K‑Mart decision from the United States to that effect because it means that what is taking place – and that is why the first point I made is important – what is being said to them is “You can go if you say you will never protest again” or essentially what is being put is they could go, but we say that the fact that their cars in effect cannot go with them – and valuable possessions – impacts in a meaningful and real sense upon their capacity to exercise a choice because it is profoundly limited by the fact that the only way in which they can go is to leave a variety of their things behind.

KIEFEL J:   Did they give evidence that this is what impeded them from leaving?

MR FRECKELTON:   There was nothing as specific as that, your Honour, no.  What I am addressing is the test as set out by the Court of Appeal in the four factors.

KIEFEL J:   Well, when you say that, the Court of Appeal’s reasoning appears from about paragraphs 81 following.

MR FRECKELTON:   That is applying paragraph 55 tests, yes, your Honour.

KIEFEL J:   Yes.  Where do you say the Court of Appeal went wrong in considering in those passages the trial judge’s conclusions?

MR FRECKELTON:   In this way.  Can I answer just by concluding in relation to the four tests:  first, we say that the first one is flawed because it does not relate to others; the second one is too limited because it does not adequately relate to the ability to take with one one’s personal property of value; third the test relates just to distance and time and that fails to have regard for instance to the difficulties of egress – and that was very relevant to this situation; and fourth there is a legality one ‑ ‑ ‑

KIEFEL J:   That is what their Honours were considering in the passages after paragraph 81 that I have asked you to refer to.

MR FRECKELTON:   The issue is the test, though, your Honour, and we say the test is wrong.  Let us go then to the purported application of the test.  We accept that the court adverted to the threats or dangers but we say that the paragraph 68 instance gives an indication of the problem in their applying this test to the circumstances which were there.  I have already addressed about that.

In terms of the inability to take property – that was not significantly dealt with by the court.  In terms of the third issue – the distance and time and difficulty – there is passing reference to terrain, but we say that this a fundamental component of it and the fact that the test as enunciated did not refer to that is a problematic aspect of the enunciation of law and then there is the fourth test, your Honour, which is the legality one.

This we say is problematic too, not in terms of the articulation of principle, that is appropriate, but here, what we have is that for the protestors to leave they needed – in a sustained way – for approximately two hours, to breach the criminal law, namely, regulation 18 of the Forest (Miscellaneous) Amendment Regulations 1998 and that was punishable by a $2,000 penalty and we say that that is something of some real consequence and his Honour’s reference to that is absolutely in passing and does not properly take into account the reality of this inevitable breach of the law.

Can I draw to the Court’s attention this limited material before it, but what you do know in relation to the picket by the loggers is to be found, for instance, in paragraph 11 which gives this Court a feel for what was actually taking place, namely that the picket extended into the bush each side of the road as far as sight and sound, and not only that, but there were particular mechanisms that were constructed in order to enhance the efficacy of the picket and so what we have is loggers – and this is tacitly accepted by the respondents – imposing as the only available means of egress the commission of significant illegality.

Now, the respondents seek to draw comfort from the 1699 case of Wright which says that if there is a minor offence similar to going into the room next door, which is what this case was about, then that is not something which should preclude the reasonableness of egress.  We say that the situation in this instance in completely otherwise.  What is required is an extensive and substantial breach of the law.

So, your Honour, in answer to your question, we say that the flaws already described to the enunciation of the test in paragraph 55 and then in the application of the fourfold test in the ways which I have described.  Those are the errors in that respect.

The next component of the problems consists in the issue to do with intention to be found at paragraph 97.  It is at paragraph 97 that the Court of Appeal referred to various findings of the learned trial judge, again, in terms of the law, and this was the issue which your Honour raised with me, about whether:

a person who remains at a particular place for his own reasons, knowing of but uninfluenced by the decisions of another, is not falsely imprisoned.  If by reason of those actions he could not leave if he chose.

Now, what we say in relation to that is that this area between paragraphs 97 and 100 of the Court of Appeal demands as a matter of law, amongst other things, that the will of the plaintiff be overborne by the defendant’s conduct.  We say this gets it wrong.  The issue is in fact whether, in a continuing sense, the plaintiff was precluded from exercising their right to choose at any given time.  They are obviously related concepts but the difference, in my submission, is important.

When one looks at the decision of the learned trial judge at paragraph 117, he concedes that in respect of this issue there is no authority on the point.  In that regard we say he is absolutely right, but we say that the principles of law articulated by him and then repeated by the Court of Appeal are inappropriate, contrary to public policy and ought in due course

to be overturned by this Court.  Would it be convenient if I turn briefly to then to the issue of the essence?

GLEESON CJ:   Yes.

KIEFEL J:   Just as you do, I had a little difficulty in relation to your argument and the grounds of appeal in identifying what damage it is, you say, was suffered that has not been compensated.

MR FRECKELTON:   In terms of the nuisance?

KIEFEL J:   Public nuisance.

MR FRECKELTON:   Yes, indeed.  We accept the analysis of the law, but what is necessary is first of all, unlawful obstruction and then that there be particular damage in the sense of suffering over and above that experienced by other members of the public and that I think is the general way in which it is put in Walsh v Ervin, the 1952 Victorian decision.  In that case, what was contemplated was that if there is substantial delay or inconvenience experienced by a particular individual then that is enough to constitute the special damage.  It can be two kinds.  One is a pecuniary adverse consequence, particular to the individual, and secondly, some extra burden of a meaningful kind.

KIEFEL J:   So you are talking about nominal damages.  Is that right?  We will call them nominal.

MR FRECKELTON:   Potentially nominal, or on occasions quantifiable, your Honour.  Now, here, we say it is straightforward and we say that in this respect there is a manifest error by the Court of Appeal and the trial judge in that the consequence of the obstruction for these plaintiffs was not just that they could not drive their cars up and down the road, which was the problem for ordinary members of the community, but they were stuck there.  They were stuck in difficult conditions and unable to go anywhere save if they went via the bush exit and that is an additional and significant imposition to use the Walsh v Ervin words of both delay and inconvenience.

GLEESON CJ:   Thank you, Mr Freckelton. 

MR FRECKELTON:   Thank you, your Honour.

GLEESON CJ:   We do not need to hear you, Mr Walker.

The outcome of this case in the Court of Appeal turned upon the application to the particular facts and circumstances of the case of established general principles and not upon the resolution of any disputed or disputable general question of law.  We are not satisfied that the interests of justice require a grant of special leave.  The application is dismissed with costs.

AT 2.53 PM THE MATTER WAS CONCLUDED