SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 7980 of 1999
| GAVAN McFADZEAN & ORS (according to schedule attached) | Appellants |
| v | |
| CONSTRUCTION FORESTRY MINING & ENERGY UNION & ORS (according to schedule attached) | Respondents |
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JUDGES: | WARREN CJ, NETTLE and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2007 | |
DATE OF JUDGMENT: | 13 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 289 | |
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Tort – False imprisonment – Environmentalists partaking in anti-logging demonstration and subjected to false imprisonment by logging contractors – Elements – Perceived total restraint by joint tortfeasors – Egress – Whether forms of egress said to be available unreasonable – Claim dismissed.
Tort – Public nuisance and particular damage – Obstruction by loggers either partially or fully of public highway – Whether degree of nuisance went beyond general inconvenience – Claim dismissed.
Tort – Damages – Exemplary damages – Aggravated damages – Respondents adequately punished by order for payment of compensatory costs – No error in exercise of discretion.
Costs – Proportions of costs – Orders for proportions of costs to reflect mixed success and failure – Single order more readily facilitating taxation than costs by issues – Fair and just exercise of discretion in all the circumstances.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr B E Walters SC with Mr K D Mueller and Mr J M Connellan | Williams Winter |
| For the Respondents | Mr D G Collins SC with Mr S J Howells and Mr M A Irving | Slater & Gordon |
S C H E D U L E O F P A R T I E S
No 7980 of 1999
B E T W E E N:
GAVAN MICHAEL McFADZEAN Firstnamed Appellant (Firstnamed Plaintiff)
KRISTEN LEES Secondnamed Appellant (Secondnamed Plaintiff)
TESSA JACKSON Thirdnamed Appellant (Thirdnamed Plaintiff)
DONNA GROSS Fourthnamed Appellant (Fifthnamed Plaintiff)
ALEXANDER JOHN BOWLES Fifthnamed Appellant (Sixthnamed Plaintiff)
LEIGH DWAN Sixthnamed Appellant (Seventhnamed Plaintiff)
AMY EPSTEIN Seventhnamed Appellant (Eighthnamed Plaintiff)
PAUL ANTHONY FOWKES Eighthnamed Appellant (Ninthnamed Plaintiff)
ELI GREIGNinthnamed Appellant (Tenthnamed Plaintiff)
JULIE ANNE COLSON Tenthnamed Appellant (Eleventhnamed Plaintiff)
JANINE DAWSON Eleventhnamed Appellant (Twelfthnamed Plaintiff)
- and –
CONSTRUCTION, FORESTRY, MINING &
ENERGY UNION Firstnamed Respondent (Firstnamed Defendant)
JANE CALVERT Secondnamed Respondent (Secondnamed Defendant)
CHRISTOPHER CLIFFORD WHEELER Thirdnamed Respondent (Thirdnamed Defendant)
GEORGE MOLLOY Fourthnamed Respondent (Fourthnamed Defendant)
MICHAEL JOSEPH NOCERA Fifthnamed Respondent (Fifthnamed Defendant)
BARRY JOHN DENT Sixthnamed Respondent (Seventhnamed Defendant)
DONALD GORDON PEARCE Seventhnamed Respondent (Eighthnamed Defendant)
DAVID REECE SHEPPARD Eighthnamed Respondent (Ninthnamed Defendant)
TREVOR FRANCIS WILSON Ninthnamed Respondent (Tenthnamed Defendant)
(representing estate of Gary Leon Wilson)
WAYNE JOHN McGEE Tenthnamed Respondent (Twelfthnamed Defendant)
BRIAN PATRICK WHEELER Eleventhnamed Respondent (Thirteenthnamed Defendant)
CHARLIE PAUL NEMET Twelfthnamed Respondent (Fourteenthnamed Defendant)
SHANE JOHN FLANNIGAN Thirteenthnamed Respondent (Fifteenth Defendant)
WAYNE ANDREW BENSON Fourteenthnamed Respondent (Sixteenth Defendant)
WARREN CJ
NETTLE JA
REDLICH JA:
Introduction and facts
This is an appeal from a judgment given in the Common Law Division in a proceeding which arose out of an anti-logging demonstration and an opposing pro-logging picket in the Otway Ranges in the period between Monday 25 January…
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- Case
- [2007] VSCA 289
- Decision Date
CaseChat Overview and Summary
The court examined the elements of false imprisonment, focusing on whether the perceived total restraint by the joint tortfeasors made any forms of egress available unreasonable. It concluded that the respondents were not liable for false imprisonment because the egress available to the plaintiff was not unreasonable. Regarding public nuisance and particular damage, the court found that the degree of nuisance did not go beyond general inconvenience and dismissed the claims. The court also considered whether the compensatory costs adequately punished the respondents and found no error in the exercise of discretion.
The court addressed the issue of exemplary and aggravated damages, concluding that the respondents had been adequately punished by the order for payment of compensatory costs. Additionally, the court exercised its discretion to order the proportions of costs to reflect the mixed success and failure of the plaintiff's claims. It issued a single order to facilitate taxation and considered the fair and just exercise of discretion in all circumstances.
The court ultimately dismissed the plaintiff's claims for false imprisonment, public nuisance, and particular damage, and affirmed the adequacy of the compensatory costs ordered as punishment. It also confirmed the proportionality of the costs awarded, reflecting the mixed outcomes of the litigation.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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