McFadzean v Construction, Forestry, Mining and Energy Union

eparate areas

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7980 of 1999

BETWEEN:

GAVAN MICHAEL McFADZEAN and others (according to the schedule attached)	Plaintiffs
v
CONSTRUCTION, FORESTRY, MINING and ENERGY UNION and others (according to the schedule attached)	Defendants

AND BETWEEN:

CHRISTOPHER CLIFFORD WHEELER and others (according to the schedule attached)	Plaintiffs by Counterclaim
v
GAVAN MICHAEL McFADZEAN and others (according to the schedule attached)	Defendants by Counterclaim

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14, 15, 16, 17, 20, 21, 22, 23, 27, 28, 29, 30 and 31 October 2003; 5, 6, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and 29 November 2003; 1, 2, 3 and 4 December 2003; 2, 3, 4, 5, 6, 9, 10, 11, 12,16, 17, 18, 19, 20, 23, 24, 25, 26 and 27 February 2004; 1, 2, 3, 4, 5, 9, 12, 15, 16, 17 and 18 March 2004;
DATE OF JUDGMENT:	19 August 2004
CASE MAY BE CITED AS:	McFadzean and Ors v C.F.M.E.U and Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 289

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Torts – false imprisonment – whether total restraint – availability of means of egress – whether available means of egress unreasonable – significance, if any, of plaintiffs not apprehending availability of a particular means of egress – significance, if any, of reasons, wholly or partly independent of defendants' conduct, for plaintiffs not leaving place of alleged imprisonment.

Torts – intentional infliction of harm - Wilkinson v Downton – reliance by plaintiffs upon extensive range of action by defendants - also inaction – whether inaction relevant to cause of action – finding that some conduct of defendants, being conduct in concert, was carried out with imputed intention of alarming or frightening plaintiffs – conduct of a kind reasonably capable of alarming or frightening a normal person – what injuries compensable under Wilkinson v Downton cause of action – psychiatric injury – distress – measure of ordinary compensatory damages – whether aggravated compensatory damages or exemplary damages should be awarded.

Torts – public nuisance – whether obstruction to passage of vehicles or pedestrians – whether action maintainable by a particular plaintiff – whether conduct in concert by defendants – measure of damages.

Torts – assault and battery – whether proved claims maintainable against all defendants; or against one or several defendants only, as the case may be – measure of damages.

Admissions – reliance by plaintiffs upon admissions by pleading and in the opening of counsel for defendants – substance of formal admissions made in defence – whether admissions made in opening.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Burnside QC with	Howie & Maher
Mr B. Walters QC, Mr K. Mueller and Mr S. McGregor
For the Defendants	Mr S. Howells with Mr M. Irving	Slater & Gordon

SCHEDULE OF PARTIES

No 7980 of 1999

BETWEEN:

GAVAN MICHAEL McFADZEAN	Firstnamed Plaintiff
KRISTEN LEES	Secondnamed Plaintiff
TESSA JACKSON	Thirdnamed Plaintiff
~~DOMINIK JASKIERNIAK~~	~~Fourthnamed Plaintiff~~
DONNA GROSS	Fifthnamed Plaintiff
ALEXANDER JOHN BOWLES	Sixthnamed Plaintiff
LEIGH DWAN	Seventhnamed Plaintiff
AMY EPSTEIN	Eighthnamed Plaintiff
PAUL ANTHONY FOWKES	Ninthnamed Plaintiff
ELI GREIG	Tenthnamed Plaintiff
JULIE ANNE COLSON	Eleventhnamed Plaintiff
JANINE DAWSON	Twelfthnamed Plaintiff
- and -
CONSTRUCTION FORESTRY MINING & ENERGY UNION	Firstnamed Defendant
JANE CALVERT	Secondnamed Defendant
CHRISTOPHER CLIFFORD WHEELER	Thirdnamed Defendant
GEORGE MOLLOY	Fourthnamed Defendant
MICHAEL JOSEPH NOCERA	Fifthnamed Defendant
COLIN JOSEPH ARBUTHNOT	Sixthnamed Defendant
BARRY JOHN DENT	Seventhnamed Defendant
~~ANDREW JAMES DAFFY~~	~~Eighthnamed Defendant~~
DONALD GORDON PEARCE	Eighthnamed Defendant
DAVID REECE SHEPPARD	Ninthnamed Defendant
GARY LEON WILSON	Tenthnamed Defendant
~~PHILIP BRETT AVERY~~	~~Eleventhnamed Defendant~~
WAYNE JOHN McGEE	Twelfthnamed Defendant
BRIAN PATRICK WHEELER	Thirteenthnamed Defendant
CHARLIE PAUL NEMET	Fourteenthnamed Defendant
SHANE JOHN FLANNIGAN	Fifteenthnamed Defendant
WAYNE ANDREW BENSON	Sixteenthnamed Defendant
~~ANDREW McKAY~~	~~Seventeenthnamed Defendant~~
AND BETWEEN:
CHRISTOPHER CLIFFORD WHEELER	Firstnamed Plaintiff by Counterclaim
MICHAEL JOSEPH NOCERA	Secondnamed Plaintiff by Counterclaim
CHARLIE PAUL NEMET	Thirdnamed Plaintiff by Counterclaim
WAYNE ANDREW BENSON	Fourthnamed Plaintiff by Counterclaim
BARRY JOHN DENT	Fifthnamed Plaintiff by Counterclaim
DAVID REECE SHEPPARD	Sixthnamed Plaintiff by Counterclaim
GARY LEON WILSON	Seventhnamed Plaintiff by Counterclaim
- and -
GAVAN MICHAEL McFADZEAN	Firstnamed Defendant by Counterclaim
KRISTEN LEES	Secondnamed Defendant by Counterclaim
TESSA JACKSON	Thirdnamed Defendant by Counterclaim
THE WILDERNESS SOCIETY INC.	Fourthnamed Defendant by Counterclaim
DONNA GROSS	Fifthnamed Defendant by Counterclaim
ALEXANDER JOHN BOWLES	Sixthnamed Defendant by Counterclaim
LEIGH DWAN	Seventhnamed Defendant by Counterclaim
AMY EPSTEIN	Eighthnamed Defendant by Counterclaim
PAUL ANTHONY FOWKES	Ninethnamed Defendant by Counterclaim
ELI GREIG	Tenthnamed Defendant by Counterclaim
JULIE ANNE COLSON	Eleventhnamed Defendant by Counterclaim

JANINE DAWSON	Twelfthnamed Defendant by Counterclaim
OTWAYS REGION ENVIRONMENTAL NETWORK	Thirteenthnamed Defendant by Counterclaim
SIMON BIRRELL	Fourteenthnamed Defendant by Counterclaim
~~CHRISTOPHER TIPLER~~	Fifteenthnamed Defendant by Counterclaim

Table of Contents

Overview.............................................................................................................................................. 1

The Pleadings..................................................................................................................................... 5

Principles........................................................................................................................................... 22

False imprisonment. Damages – aggravated and exemplary............................................ 22

Wilkinson v Downton.................................................................................................................... 32

Public Nuisance........................................................................................................................... 33

Concerted Action........................................................................................................................ 34

Admissions: by pleading and in opening............................................................................. 37

Towards understanding and resolving disputed issues.......................................................... 41

Some general observations........................................................................................................ 41

Characteristics of forest protests............................................................................................... 46

Protester argot............................................................................................................................. 50

The Plaintiffs and Oren.............................................................................................................. 53

Ms Jackson............................................................................................................................... 53
Greig......................................................................................................................................... 55
Ms Gross.................................................................................................................................. 56
Dwan........................................................................................................................................ 58
Ms Lees.................................................................................................................................... 64
McFadzean............................................................................................................................... 68
Ms Dawson.............................................................................................................................. 80
Bowles...................................................................................................................................... 87
Fowkes...................................................................................................................................... 92
Ms Colson.............................................................................................................................. 100
Ms Epstein............................................................................................................................. 104
Oren....................................................................................................................................... 110

The Defendants. Terms and Relationships......................................................................... 111

The Individual Defendants...................................................................................................... 116

Ms Calvert............................................................................................................................. 116
Molloy.................................................................................................................................... 119
Nocera.................................................................................................................................... 120
Nemet..................................................................................................................................... 122
Flannigan............................................................................................................................... 123
Chris Wheeler......................................................................................................................... 124
Wilson.................................................................................................................................... 127
Dent....................................................................................................................................... 129
Pearce..................................................................................................................................... 130
Wayne McGee........................................................................................................................ 132
Sheppard................................................................................................................................. 133

Three Meetings............................................................................................................................... 134

The VicTree Meeting................................................................................................................. 135

The Colac Meeting.................................................................................................................... 135

The Skillshare Meeting............................................................................................................. 143

SSP Coupe; and geography....................................................................................................... 151

Sunday 24 January: Events at SSP coupe and the gateway................................................. 156

Sunday 24 January: Establishing the camp............................................................................ 186

Sunday 24 January and early 25 January: Discussions between defendants.................. 194

Trespass to goods and assault on Greig.................................................................................... 199

The protesters' intentions on the morning of 25 January....................................................... 202

The morning of 25 January: Nemet, Nocera and Wilson..................................................... 205

The morning of 25 January: a conversation between McFadzean and Chris Wheeler? 211

The Morning of 25 January: Fisher goes to SSP.................................................................... 213

The Beech Forest Meeting............................................................................................................ 218

Preface to the evidence about SSP week................................................................................... 222

Things which happened and which did not happen during SSP week............................. 224

Questions which arise................................................................................................................... 241

The afternoon and evening of 25 January: conversations between Ms Calvert and

protesters. Other conversations. Surrounding events. Some conclusions.................. 243

A picket? Its boundaries? A basis or bases for egress? Concerted action?................. 267

Restraining conduct, violence, threats of violence by loggers?............................................ 282

25 January; Ms Jackson and Greig. Attempts to leave along SRR?................................. 283

25 January: Ms Nelson's attempt to enter........................................................................... 292

28 January: Departures of McFadzean and Ms Jackson................................................... 293

Other allegations of restraining conduct and/or violence................................................. 293

Threats of violence?.................................................................................................................. 330

Incidents before SSP week...................................................................................................... 331
Assaults on Dwan?................................................................................................................ 332
Other alleged threats of violence during SSP week............................................................... 337

Patrols in the bush?................................................................................................................... 339

Patrols on Turton Track?.......................................................................................................... 347

Concerted action?...................................................................................................................... 348

Incidents of camping; and actions by the loggers to harass or annoy the protesters..... 348

Food and water.......................................................................................................................... 348

Generators.................................................................................................................................. 360

Lights.......................................................................................................................................... 368

Chainsaws.................................................................................................................................. 377

Drums......................................................................................................................................... 399

Use of Video cameras............................................................................................................... 400

Drunken behaviour; complaints to Ms Calvert?................................................................ 408

Loud Music................................................................................................................................ 414

Leaving along SRR........................................................................................................................ 416

25-29 January: An act of persuasion?................................................................................... 416

Leaving by agreement.............................................................................................................. 420

A police gate?............................................................................................................................. 422

Protester and police evidence................................................................................................. 422
28 January: McFadzean and Ms Jackson leave SSP........................................................... 445
Conclusions............................................................................................................................ 455

Separate areas............................................................................................................................ 457

29 January: circumstances of protesters' departure........................................................... 459

Conclusions................................................................................................................................ 461

Leaving through the bush............................................................................................................ 462

The physical component.......................................................................................................... 462

Reasons given by the plaintiffs for not leaving through the bush..................................... 471

The plaintiffs’ case against the sixth defendant...................................................................... 495

The plaintiffs’ case against the thirteenth defendant............................................................. 500

The plaintiffs’ case against the sixteenth defendant.............................................................. 505

False Imprisonment....................................................................................................................... 506

Wilkinson v Downton.................................................................................................................... 519

Ms Jackson.................................................................................................................................. 541

Greig............................................................................................................................................ 546

Ms Gross..................................................................................................................................... 552

Dwan........................................................................................................................................... 553

Ms Lees....................................................................................................................................... 557

McFadzean................................................................................................................................. 564

Ms Dawson................................................................................................................................ 573

Bowles......................................................................................................................................... 579

Fowkes........................................................................................................................................ 580

Ms Colson................................................................................................................................... 582

Ms Epstein.................................................................................................................................. 584

Public Nuisance.............................................................................................................................. 586

Summary.......................................................................................................................................... 593

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HIS HONOUR:

Overview

By writ filed 20 December 1999, eleven plaintiffs raised claims for damages against seventeen defendants. One of the original plaintiffs, Dominic Jaskierniak ("Jaskierniak"), later did not pursue his claim; and a further plaintiff, Janine Dawson ("Ms Dawson"), was added. Further, the plaintiffs did not proceed against three of the defendants originally named – Andrew Daffy, Philip Avery and Andrew McKay; and in place of Daffy they substituted Donald Pearce ("Pearce") as a defendant.

At trial, which commenced on 13 October 2003, there were, in the event, eleven plaintiffs and fifteen defendants.

All the plaintiffs are individuals. So are fourteen of the fifteen defendants. The other defendant, the Construction, Forestry, Mining and Energy Union ("CFMEU"), is a body corporate constituted under the Workplace Relations Act 1996 (C’th). The second defendant, Jane Calvert ("Ms Calvert"), was, at the relevant time, the secretary of the Victorian Branch of the Forestry & Forest Building Products Manufacturing Division of CFMEU. The Division is the successor, in substance, to the Australian Timber Workers Union. That union ceased to have a separate existence in consequence of the series of union amalgamations which culminated in the formation of CFMEU.

When the matter came to trial, and throughout a considerable part of the trial, a counterclaim was on foot. The counterclaim, though not in the form in which it went to trial, was first raised by a document dated 13 October 2000. As it stood when the trial began, it was brought by seven of the fifteen defendants against all of the plaintiffs, and also against the Wilderness Society Inc ("The Wilderness Society" or "TWS"), Otways Region Environmental Network Inc (its name is in fact "Otway Ranges Environment Network Inc") ("Oren") and Simon Birrell ("Birrell").

On 11 December 2003, the thirtieth day of the trial, I was informed by counsel for the counterclaimants that his clients had given notice of acceptance of an offer of compromise. I was told that costs issues remained for resolution. I held them over until completion of the trial and resolution of the plaintiffs’ claims[1]. The position was then, and still is, that I do not know the substance of the offer which was accepted.
[1]T 2641 – 2644.

From the outset, the sixth defendant, Colin Arbuthnot ("Arbuthnot"), was separately represented. A defence was filed on his behalf ("Arbuthnot's defence"), whilst a joint defence ("the defence")[2] was filed on behalf of the other defendants.[3]
[2]It is to be taken to be a reference to the third further amended defence and counterclaim dated 25 August 2003, as further amended by leave at trial, except where otherwise indicated.
[3]Initially on behalf of three defendants against whom the plaintiffs later discontinued.

When the matter came to trial, Arbuthnot no longer had legal representation. He attended court from time to time during 2003; but not at all this year. He did not cross-examine, although on the majority of occasions counsel for the other defendants incidentally cross-examined upon matters alleged against Arbuthnot. He did not give evidence, and he made no submissions.

The plaintiffs’ claims arise out of events which took place in the vicinity of the intersection of Seaview Ridge Road ("SRR") and SSP Track not far from Beech Forest in the Otway Ranges in the period between Sunday 24 and Friday 29 January 1999. I will call that intersection "SSP intersection" or simply "the intersection", and that period, but from Monday 25 January only, "SSP week". The events had as their necessary background a long-running campaign to stop the logging of native forest in the Otways, a campaign conducted on many occasions by what was politely called "direct action". The plaintiffs were, according to the value-laden terms used during the trial, "environmentalists", "conservationists", "courageous and committed conservationists", "protesters", "green protesters" or "greenies". The individual defendants, save for Ms Calvert, each of whom worked in the timber industry, were, depending upon the standpoint of the author of the description, "workers", "loggers", "nature rapists" or "environmental rapists". That is not to exhaust the range of descriptions of plaintiffs and defendants which were offered during the trial. The amended statement of claim dated 30 August 2000 ("the statement of claim") makes use of the terms "the plaintiffs", "the other protesters", "the defendants", and "the other loggers". For convenience, and because it accords with the thrust of the plaintiffs' own document, I will describe the plaintiffs and their colleagues as "the protesters", the defendants other than Arbuthnot, and their supporters, as "the loggers", and Arbuthnot simply by his own name. Also for convenience, I will, describe the opposed groupings at other logging coupes in the summer of 1998/99 as "protesters" and "loggers".

Claims are laid by all plaintiffs in false imprisonment, under the cause of action described in Wilkinson v Downton[4] and in public nuisance. A number of plaintiffs make allegations of assault and/or battery. Two plaintiffs bring claims for trespass to goods. Each plaintiff claims damages, including aggravated and exemplary damages. In each instance the defendants dispute the claims made.
[4][1897] 2 QB 57

The counterclaim, as is the case with the claim, was elaborately pleaded. At risk of being inaccurate by being brief, the counterclaimants alleged that the defendants to counterclaim had caused them economic loss by what were described as "interference activities" carried out in or near to coupes in which timber was being gathered. The impugned conduct allegedly took place at different coupes on different days between December 1998 and February 1999, not always involving the same defendants to counterclaim. The defendants to counterclaim, all of whom were represented by plaintiffs' counsel, disputed the counterclaim in its entirety.

I heard a good deal of evidence which was specifically relevant to the counterclaim before the same was compromised. On several occasions thereafter I raised with counsel the question whether, and if so in respect of what matters, such evidence could still be relevant. Counsel made some submissions. In the event, for reasons to which I will later refer, I consider that at least the greater part of the evidence was receivable on the claim; which is not to say that it was in each instance receivable for or against all plaintiffs or all defendants.

The trial occupied 64 days, on one of which I had a view. I heard 43 witnesses. Many, many exhibits were tendered. Often, the evidence of a witness occupied a protracted period. Cross-examination of plaintiffs and defendants and of witnesses called for both sides was searching. Later I will say something about the manner in which many witnesses gave their evidence and their demeanour in giving it. In short, those matters, which are not revealed by the transcript hard copy, considerably affected my assessment of the credibility of those witnesses.

I have referred to the campaign to stop the logging of native forest in the Otways, and to the groupings of persons involved in the claim. At trial, whilst insisting that matters fell to be determined according to conventional principles, both sides made efforts, barely-concealed at best, to assume the moral high ground. It also seemed implicit in certain submissions that the nature of the proceeding should lead me in some way to consider pleadings, applications to amend and issues of admissibility otherwise than I should normally do; to desist from ordinary attempts to clarify doubtful evidence; to desist from giving witnesses an opportunity to explain evidence that seemed improbable; to say nothing when a question was asked the imprecision of which would make the answer valueless; and to take no steps to move the trial along. The case required no such deviation from the ordinary approach.

In the course of the trial, much evidence was given of things allegedly said by protesters and loggers at relevant times using vulgar or otherwise abusive language. The plaintiffs claimed that they were fearful of the loggers. They relied, inter alia, upon some of the things allegedly said to them. One of the plaintiffs gave evidence that language he used during SSP week was atypical, a response to the stress of his alleged imprisonment. The defendants denied that many of the things allegedly said had been said. They also sought to elaborate the content in which the parties and their companions had operated. They sought to show, in doing so, that it was very improbable that any of the plaintiffs had been put in fear by things allegedly said; and to show, in several cases at least, that vulgar or abusive language used by plaintiffs during SSP week was not an aberration in consequence of stress, but the norm. In order to give life to what would otherwise be a debate removed from the world in which the protesters and the loggers operated, I consider that it is necessary in these Reasons to set out things allegedly said in the language said to have been used.

The Pleadings

By the statement of claim the plaintiffs allege that:

"5.Between about midday on Monday 25 January 1999 and about midmorning on Friday 29 February (sic) 1999 ('the relevant period'), at or near the intersection of the SSP Track and Seaview Ridge Road within a State Forest in the Otways near Apollo Bay in the State of Victoria ('the campsite'), the defendants and each of them:
(i)acting in concert with each other;

(ii) acting in concert with other persons, whose identities and names are presently unknown to the plaintiffs (the "other loggers") the numbers of whom fluctuated during the relevant period;
(iii)individually:
Aby means of both physical acts and oral threats, detained the plaintiffs for various periods as alleged hereafter within a camp established by the plaintiffs and some five other persons ("the other protesters");
Bassaulted the plaintiffs;
Cdeprived the plaintiffs of their liberty;
Dsubjected the plaintiffs to and/or placed them in apprehension of harm;
Esubjected the plaintiffs to deprivation of sleep;
Fsubjected the plaintiffs to deprivation of food and fluid;
Gsubjected the plaintiffs to gross humiliation;
Hsubjected the plaintiffs to abuse;
Isubjected the plaintiffs to threats;
Jsubjected the plaintiffs to indignity;
Ksubjected the plaintiffs to deprivation of privacy;
Lsubjected the plaintiffs to physical injury and harm;
Msubjected the plaintiffs to mental injury and harm;
Ntrespassed on and damaged their property."

Then follow 53 particulars.

Building upon those allegations, by paragraph 6 it is alleged that "the defendants and each of them, acting in concert with each other and with the other loggers" wrongfully imprisoned the first plaintiff, Gavan McFadzean ("McFadzean") between midday 25 January and the morning of Thursday 28 January. On the morning of 28 January, it is common ground, McFadzean left SSP intersection and went to Apollo Bay.

By paragraph 7 it is alleged that each of Kristen Lees ("Ms Lees"),Alexander Bowles ("Bowles"), Leigh Dwan ("Dwan"), Amy Epstein ("Ms Epstein"), Paul Fowkes ("Fowkes"), Eli Greig ("Greig"), Julie Colson ("Ms Colson") and Janine Dawson ("Ms Dawson") was wrongfully imprisoned by the defendants – again the language is the same – between about midday 25 January and about mid-morning on 29 January. That allegation is made despite it being the case that Greig and Fowkes left the intersection and travelled to and from Apollo Bay on Tuesday 26 January.

By paragraph 8 it is alleged that the defendants wrongfully imprisoned Tessa Jackson ("Ms Jackson") between about midday 25 January and about 4 pm Thursday 28 January. It is common ground that Ms Jackson left the intersection in an ambulance at the latter time, and was transported to Apollo Bay. There was a debate at trial whether there was any need for the ambulance. Of that, more later.

By paragraph 10 it is alleged that the defendants wrongfully imprisoned Donna Gross ("Ms Gross") between about dusk on 26 January and mid morning on 29 January. That period is specified because, as the evidence shows, Ms Gross made her way to the intersection on 26 January in the company of Greig and Fowkes when the latter were returning from Apollo Bay.

Paragraph 11 is a broad and generalised allegation of assault upon the plaintiffs by "the defendants and each of them, acting in concert with each other and with other loggers" over the period 25 – 29 January. The reader is sent to the 53 particulars to paragraph 5 to discern the detail of what is alleged.

Paragraph 12, which apparently ties with paragraph 11, pleads that the plaintiffs sustained injuries and suffered loss and damage as set out in paragraph 50. The last-mentioned paragraph details injuries said to have been suffered by each plaintiff. So the plea is, in effect, that the pleaded injuries were sufficiently caused, in law, by the alleged assaults.

Although paragraph 12 and other paragraphs, referring to paragraph 50, allege "injury, loss and damage", paragraph 50 simply particularises injury. In further analysing the statement of claim I will not refer to injury, loss and damage.

Paragraph 15, an allegation made "further and in alternative", pleads an assault and battery on Greig by "the defendants" on 26 January. That is the incident dealt with by particular (o) to paragraph 5, which for some reason refers to "two of the defendants, and/or other loggers".

Paragraph 16, which can only be understood to relate to paragraph 15, alleges that Greig sustained the injuries later pleaded in consequence of this assault and battery.

Paragraph 17 alleges an assault by the fifth defendant, Michael Nocera ("Nocera") on Dwan by threatening words uttered on 26 January. By paragraph 18 Dwan’s later particularised injuries are pleaded, in effect, to have been caused by this assault.

Paragraph 19 pleads an assault by threatening words on Dwan by the fifteenth defendant, Shane Flannigan ("Flannigan") on 26 January. By paragraph 20 this assault is also alleged to be a sufficient cause of Dwan’s injuries.

Paragraph 23 pleads that "the defendants or one of them" assaulted and battered Greig on "Thursday 26 (sic) January." That is a specific plea arising out of the circumstances referred to in particular (ii) to paragraph 5, which refers to assault and battery by "one of the defendants or other loggers whom he is presently unable to identify." Note the contrast in those allegations.

According to paragraph 24, Greig’s later-particularised injuries were attributable to the assault and battery pleaded by paragraph 23.

Paragraph 25 pleads an assault and battery by the tenth defendant, Gary Wilson (Wilson) on Fowkes on 25 January. Reference to particular (jj) to paragraph 5, and to preceding particulars commencing at (gg), shows that this incident is in fact said to have occurred on 28 January.

According to paragraph 26, Fowkes’ injuries were caused by this assault and battery.

By paragraph 27 Ms Gross pleads an assault and battery committed by Ms Calvert on 28 January; and by paragraph 28 that her injuries were caused by this incident.

Paragraph 28 C alleges an assault and battery on Ms Dawson by the third defendant, Clifford Christopher Wheeler ("Chris Wheeler", I add his first name because more than one Wheeler was involved in events between 24 and 29 January), "in the company of other defendants and/or loggers and acting in concert with the defendants and each other and with the other loggers" on Sunday 24 January. By paragraph 29 this incident is alleged to have been causative of her injuries.

Paragraphs 29 – 32 plead a trespass to goods – the kicking in and denting of McFadzean’s motor vehicle on 27 January by "the defendants and each of them, acting in concert with each other and other loggers".

Paragraph 33 pleads that, McFadzean being in the vehicle at the time of the incident, he was assaulted; and paragraph 34 asserts that his injuries were caused by that assault.

Paragraphs 36 – 38 plead another trespass to goods – in this instance the smashing of windows of Greig’s motor vehicle on 25 January by "the defendants and each of them, acting in concert with each other and with the other loggers."

Paragraphs 39 – 40 plead an assault on Greig, who was in the vehicle at the time; and that his injuries were occasioned by that assault.

Paragraphs 41 – 42 plead a claim by all plaintiffs against the defendants under the cause of action described in Wilkinson v Downton. In that connection the plaintiffs allege that "the defendants and each of them, acting in concert with each other and with the other loggers wilfully acted so as to cause harm, fright and terror to the plaintiffs." The conduct relied upon is that particularised under paragraph 5, which includes allegedly imprisoning conduct, assaults and batteries, and circumstances said to support an entitlement to aggravated and exemplary damages.

In his final address, counsel for the plaintiffs said that in support of this claim he relied upon "everything other than the imprisonment and the nuisance".[5] He explained what he meant by that.[6] He agreed with me that if I found that the plaintiffs had been falsely imprisoned, and if I considered it right to award aggravated or exemplary damages by reason of matters said to ground the Wilkinson v Downton claims, then there would be no room to award damages for such claims.[7]
[5]T 5437.
[6]T 5437-9.
[7]T 5440-1.

Paragraph 43 alleges that the defendants – then follows the usual formula – obstructed SRR between 25-29 January so as to constitute a public nuisance. The reader is then referred to the particulars to paragraph 5, many of which have no relevance to the allegation of nuisance.

By paragraph 44 the plaintiffs allege that they suffered loss and damage as later particularised, including particular damage, by reason of the nuisance.

In his final address plaintiffs’ counsel submitted that if I found that there had been a false imprisonment constituted in part by obstruction of SRR between 25-29 January, and awarded the plaintiffs damages, then whilst there could be a finding of nuisance, there would be no room for a further award of damages.[8] Whether or not, as a matter of theory, there could be findings both of false imprisonment and nuisance is, I think, a sterile question having regard to that concession.
[8]T 5436.

Paragraph 45 pleads, in substance, that the defendants were joint tortfeasors. Sub-paragraph (a) principally seeks to involve the defendants as individuals in the concerted action alleged by sub-paragraph (b)[9]. The latter sub-paragraph pleads action by the defendants in concert with the other defendants and the other loggers in furtherance of a common design to undertake each of the torts pleaded by the plaintiffs. It follows from paragraphs 45 and 46 that, according to the plaintiffs’ case, each alleged tort – including, for example, instances of alleged assault by threatening words upon a particular plaintiff by a particular defendant – was committed by the defendants jointly in furtherance of a common design to undertake that tort.
[9]Further and Better Particulars, paragraph 53, add nothing to the substance of the allegation. They simply refer the reader to the particulars subjoined to paragraph 45.

The plaintiffs' particularisation of paragraph 45 is as follows:

"Throughout the period of the imprisonment, the defendants and the other loggers acted so as to implement a plan of action that had been initially developed and agreed upon by, inter alia, the defendants at a meeting attended by the defendants held the preceding week at Colac organised by the first defendant. The purpose of the plan was to prevent, inter alia, the plaintiffs and the other protesters protesting in the Otways about logging in the Otways and in the course of so doing to so intimidate and frighten them that they would cease conducting such protests. The defendants planned to capture at least 30 or 40 protesters within the blockade including the first and second plaintiffs, Chris Tipler, Simon Birrell, Adrian Whitehead, and several other specific persons, whom they identified as the ringleaders of Oren. The said plan, and the implementation thereof, was from time to time further developed and adapted to circumstances arising throughout the relevant period by the defendants and other loggers at or about the SSP Track."

In his final address, counsel for the plaintiffs went close to abandoning reliance on those particulars. This is what he said:

"The particulars are just that, they are not the primary allegation. In the end your Honour is confronted not by particulars but by the evidence that has been given and the allegations and to that extent the particulars will have the effect of confining that which can be said to be relevant in the course of the trial, but at this stage your Honour is not confined to the particulars there. Your Honour has the evidence and can draw the conclusions which your Honour sees fit from that evidence."[10]

[10]T 5420 lines 12-20

Counsel submitted that the defendants’ common design "emerged most starkly … from the defendants’ admission that they submitted to the authority of" Ms Calvert.[11] As to the "scope of the design", he submitted that "the purpose and reason for the picket involved trying to persuade the plaintiffs to sign an agreement" to cease protests.[12]
[11]T 5420-1.
[12]T 5421.

He submitted also that the scope of the common design comprehended:

§ preventing the plaintiffs leaving the intersection along SRR;
§ preventing the plaintiffs leaving through the bush;
§ the use of force;
§ the undertaking of activities to harass or annoy the plaintiffs.[13]

[13]T 5422.

Further, the common design could be inferred "from the acts that were undertaken and from the fact that this was said by Ms Calvert and our learned friends to be a disciplined action…"[14]
[14]T 5424.

It was not to the point, counsel submitted, that the defendants may have had different motives for entering into the common design. Motive and design are different things.

I should refer to paragraph 47 of the statement of claim. It alleges, by the reference to earlier paragraphs, that the defendants –

"… conspired with the predominant purpose to injure the plaintiffs by unlawful means and the actions of the defendants alleged in paragraphs 5, 45 and 46 were overt acts carried out pursuant to and in furtherance of the said conspiracy."

This plea, distinct from the allegation that the defendants were joint tortfeasors, was not pursued by the plaintiffs’ counsel in his final address[15].
[15]T 5420.

I should say a little more about the somewhat casual way in which plaintiffs’ counsel relied upon what he submitted was the evidence of common design and scope of design, in lieu of what had been hitherto particularised. I do not consider that the plaintiffs should be confined to their particulars, notwithstanding the desirability that a party coming to court be not confronted by a case which is different to that pleaded and particularised. Indeed, counsel for the defendants (this is a reference to counsel who appeared for all defendants save Arbuthnot; he also appeared for the counterclaimants) did not press me to deal with the plaintiffs’ case in such a way. He noted, correctly, that the statement of claim at a number of points pleads action in concert. Such allegations imply a common, but unstated design. He submitted that there was a divergence between the plaintiffs’ case about common design as articulated in the statement of claim and as finally relied upon; and that this bore upon resolution of the question whether the plaintiffs had proved any common design[16]. Whether that submission should command acceptance upon consideration of the evidence is one thing; but as a matter of approach I think it marks the limits of the significance of any difference between the plaintiffs’ case with respect to action in concert as it was particularised and as it was finally argued.
[16]T 5541.

Returning to the statement of claim, paragraph 49 pleads circumstances which are, I think, relied upon as yielding an entitlement to aggravated compensatory damages. Compare paragraph 51, which pleads claims to exemplary damages.

I have referred a number of times already to paragraph 50. It pleads what are said to be injuries. I say "said to be" because in a number of instances what are pleaded are symptoms or matters which do not seem to fit the template of injury at all. I further observe that according to the particulars each plaintiff suffered "cuts and lacerations" in consequence of the impugned conduct. Very few plaintiffs gave any evidence of such injuries; and in even fewer instances was any such injury confirmed by other evidence.

As I have already noted, the statement of claim alleges that the injuries pleaded in paragraph 50 were caused by each incident of tortious behaviour inflicted on the particular plaintiff. That is, the particular plaintiff alleges that each such incident was a cause, sufficient in law, of his or her injuries overall. That simply could not be the case in some instances. For example, Dwan alleges assaults by threatening words. His alleged injuries include cuts and lacerations, boils and tropical ulcers.

This also may be said at the outset about the injuries particularised: each plaintiff is alleged to have suffered "psychiatric and psychological injuries". In the case of six plaintiffs only was medical evidence adduced from a medical practitioner in support of that allegation. The evidence was given by a consultant psychiatrist who had examined those plaintiffs for medico-legal purposes. The doctor gave evidence that he had examined other persons involved in the affair[17]. I do not conclude that he interviewed any of the other plaintiffs. Other protesters were present at the intersection during SSP week. It would be speculative to conclude that Dr Epstein examined other plaintiffs, and to extrapolate from that evidence an inference adverse to a particular plaintiff by the failure to lead evidence from the doctor about that plaintiff.
[17]T 2673.

Before passing from the statement of claim, I should mention three matters. First, each of the 11 plaintiffs brings a distinct claim or series of claims. It does not necessarily follow, if A was falsely imprisoned, that the same can be said of B. Likewise, if A was the victim of a battery, it does not follow, if B was not then present and knew nothing of it, that B was assaulted. They are simply two examples which underline the general point.

Second, no allegation is made of false imprisonment by any of those plaintiffs who participated in the incident at SSP coupe on Sunday 24 January in the course of which, it is alleged by paragraph 28C of the statement of claim, Ms Dawson was assaulted and battered.

Third, in the course of his final address counsel for the plaintiffs submitted, in effect, that a number of protesters were wrongfully detained east of a picket line established by the defendants on 28 January. He made it clear enough that this was said to be a discrete false imprisonment[18].
[18]T 5336.

I then raised with counsel the question whether any such case was pleaded. I pointed out that paragraph 5 of the statement of claim pleads that the plaintiffs were detained within their camp; whereas the gist of the incident referred to in particular (hh) to paragraph 5 is that plaintiffs were prevented from returning to their camp.

Counsel submitted that paragraph 5 was widely enough drawn to encompass a discrete claim for false imprisonment based on the events specified in that particular. In any event, he submitted, the case had been run on the basis that the event was "part of the false imprisonment"[19].
[19]T 5336.

On the following morning, however, counsel sought out of caution to amend by substituting in paragraph 5, for the word "within" the words "in the vicinity of". I refused that opposed application to amend on the footing that it would alter the fundamental basis on which the entire case had been conducted. The area of alleged confinement over the course of the entire period would have been thereby altered. I made it clear to counsel, however, that I was not precluding some other application to amend, notwithstanding the lateness of any such application[20].
[20]T 5362-4.

On the next and final morning of the trial, counsel for the plaintiffs reiterated his submission that paragraph 5, as it stood, was wide enough to embrace a discrete claim for false imprisonment on the afternoon of 28 January. He called in aid paragraphs 7 and 10 of the statement of claim which, as he correctly said, allege that various of the plaintiffs were falsely imprisoned in the period 25 (or 26) to 29 January. If his primary submission was wrong, then he pressed the proposed amendment which I had already rejected[21]. He also proposed a tightening up of particular (hh) to paragraph 5, so as to identify the plaintiffs allegedly detained.
[21]T 5473.

In the event, I granted leave to the plaintiffs to amend particular (hh) and that was done so as to allege detention of Ms Lees, Ms Gross, Dwan, Fowkes, Greig, Ms Colson and Ms Dawson.

I simply cannot understand why the plaintiffs’ side did not seek to amend to allege, suitably, a discrete false imprisonment on 28 January. I could have done no more to indicate why, in my opinion, paragraph 5 created a problem, that there was a problem with the proposed amendment, and that I remained receptive to an application to amend. Paragraphs 7 and 10 could on no view solve the problem created by paragraph 5. They hark back to paragraph 5, the language of which I have mentioned already.

It was suggested by plaintiffs’ counsel, in effect, that I had created the pleading problem; that evidence had been led without objection to show a particular false imprisonment.

It is true that I raised the state of the pleadings. It is true also that much evidence was led by both sides as to what transpired in the late afternoon of 28 January. But it does not follow that it was led to prove a false imprisonment which prevented the plaintiffs from returning to their camp. So, for example, the evidence could be receivable as going to the plaintiffs’ asserted entitlement to aggravated and exemplary damages; and possibly in connection with the proposition that a "gate" preventing egress from the camp could be discerned from the existence of a "gate" preventing ingress. Moreover, the matters alleged by particulars (gg) and (hh) to paragraph 5 set the scene, as it were, for the assaults and batteries alleged by particulars (ii), (jj) and (nn), matters the subject of independent pleas[22], much as the alleged detention on 24 January of which evidence was given set the scene for the allegation of assault and battery made by paragraph 28C.
[22]See paragraphs 23, 25 and 27 of the statement of claim.

The question, to my mind, is ultimately one whether, despite what I regard as the ill-judged failure to seek an appropriate amendment, despite a pleading which in my opinion does not properly raise a discrete allegation of false imprisonment preventing a return by certain plaintiffs to their camp, I should nonetheless treat evidence capable of establishing such an imprisonment as raising and supporting that allegation. In the end, I consider that the relevant plaintiffs should not be penalised by the conduct of their case. Further, I think it is not clear that the defendants did not cross examine and themselves adduce evidence pertinent to the defence of a discrete claim of false imprisonment arising out of the particular events.

I turn to the defences.

Arbuthnot’s defence is essentially one of denial and the assertion, many times, that he has no knowledge of matters pleaded. Leaving aside the propriety of the latter pleading, its substance is most obviously explained by the fact that, on the evidence, he was only present in the vicinity of the intersection for a short period on the afternoon of 28 January; and that the circumstances of which he pleads no knowledge occurred, it is alleged by the plaintiffs, at other times; or not at the intersection when he was present.

A single allegation is raised specifically against Arbuthnot, by particular (mm) to paragraph 5 of the statement of claim. Having asserted that Arbuthnot had previously caused injury to Adrian Whitehead ("Whitehead"), a person associated with the protesters, and that he was known for his violent propensities, it alleges that on the afternoon of 28 January he said to a non-plaintiff protestor, in the hearing of Bowles and Ms Epstein, that "the last person who annoyed him got an axe handle through the head".

Arbuthnot denies paragraph 5 generally. He denies violent propensities. He pleads "that he informed the plaintiff (sic) that he had been assaulted by Adrian Whitehead and that he had been forced to defend himself with an axe handle at the time of an assault".

I go to the defence. Essentially, it denies all the circumstances alleged by the plaintiff to constitute the various kinds of tortious conduct. Further than that, a broad account of pertinent circumstances, as the defendants would have them, is set out in paragraph 5(f), (g) and (h) of the defence:

"(f)The defendants say that the third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fifteenth and sixteenth defendants have been for several years engaged in ~~logging~~ forest operations including logging in the Otways region either as contractors, sub-contractors or employees. In December 1998 and January 1999 they were so engaged pursuant to lawful authority and contractual arrangements upon which they depended for their livelihoods. The plaintiffs have been involved in a co-ordinated and organised series of protests, demonstrations, blockades, sabotage and resistance activities in the Otways area aimed at interfering with, hindering and preventing any forest operations including logging (‘the interference activities’). The interference activities of the plaintiffs were dangerous and exposed them and those involved in the forest operations, including the defendants referred to above to risk of injury and loss. The interference activities also exposed employees of the Department of Conservation and Natural Resources to risk of injury. During the course of December 1998 and January 1999 the defendants referred to above were denied the opportunity to work and thereby lost income and suffered loss. The plaintiffs prevented the defendants referred to above from performing and fulfilling their contracts;
(g)The plaintiffs were involved on interference activities in the SSP coupe in January 1999. The SSP coupe is located on the SSP Track approximately two kilometres north east of the intersection of the SSP Track and Seaview Road (‘the intersection’). At about noon on Sunday 24 January 1999 the plaintiffs, and other protesters, entered the SSP coupe. Some of the plaintiffs and other protesters clambered onto machinery, stood in the path of machinery and attempted to turn off operating machinery. This occurred while machinery was being used to perform difficult and dangerous work. They informed the thirdnamed defendant that they intended to prevent work being performed on the SSP coupe during that week. The defendants were aware of and familiar with the interference activities used by the plaintiffs to prevent forest operations at other coupes and believed that the plaintiffs intended to and could prevent forest operations by their activities. The plaintiffs and other protesters formed a blockade of vehicles and a camp at the intersection which prevented access to SSP Track by other vehicles. The plaintiffs and the other protesters did not clear the blockade or allow work to be performed until Friday 29 January 1999.
(h)During the period from about noon on 24 January until about 11 am on 29 January 1999 (‘the relevant period’) the defendants other than the first defendant conducted a peaceful protest against the interference activities of the plaintiffs. During the relevant period the plaintiffs impeded, taunted, heckled, abused, assaulted and provoked those involved in forest operations, including the defendants referred to above. Police officers were present at the intersection at all times from about 2 pm on 25 January until 11 am on 29 January 1999.

That plea is inaccurate at least to this extent: on the evidence, not all the plaintiffs engaged in "interference activities" in December 1998 and January 1999; and not all the plaintiffs entered upon SSP coupe[23] on 24 January. Whether it otherwise represents the true state of affairs, particularly in the period 24-29 January, was hotly debated at trial.
[23]A "coupe" may be broadly described as an area of forest set aside for logging.

I refer next to paragraphs 10A-10D of the defence. They plead, in short, that Chris Wheeler, Nocera, the fourteenth defendant Charlie Nemet ("Nemet") and the sixth defendant Wayne Benson ("Benson") were in possession of SSP coupe and the road entrance thereto and were required to maintain safety on such land; that the plaintiffs entered upon the land on 24 January; that the plaintiffs were trespassers; and that the defendants took reasonable steps to exclude the plaintiffs, to prevent other trespassers joining the plaintiffs, and to maintain safety on the land.

This plea raises questions whether the named defendants were in possession of the coupe and/or SSP Track, whether some and, if so, which of the plaintiffs trespassed on the coupe, whether plaintiffs trespassed on land in possession of the named defendants by setting up a camp on the side of SSP Track and/or by parking vehicles on SSP Track so as to impede access to the coupe, whether the defendants were entitled to take reasonable steps to prevent actual or threatened trespass, and whether any of the defendants particularly identified had a right to take steps to secure a safe workplace.[24] About each of these matters there was legal and factual controversy at trial.
[24]Under the Occupational Health and Safety Act 1985, s. 23.

Next I should refer to paragraph 41 of the defence. It denies that the defendants wilfully acted to cause harm, fright and terror to the plaintiffs, and avers that "the plaintiffs were assured by some of the defendants that the picket was a peaceful protest".

I go to paragraph 43. In substance, it denies the plaintiffs’ allegation that SRR was blocked between 25-29 January so as to constitute a public nuisance. The defendants admit, however, that:

"Some of the defendants other than [CFMEU, Arbuthnot, Avery] conducted a peaceful picket across the Seaview Ridge Road near the intersection through which various persons passed during the relevant period."

As admissions go, it is really no admission at all.

I next draw attention to paragraph 53. It pleads:

"Further, the plaintiffs voluntarily entered the area for the purpose of engaging in interference activities and remained so despite being invited to leave."

This allegation was in factual dispute throughout the trial. Its significance as a matter of law, if established as a matter of fact, was also in dispute. For completeness sake, I add that there was examination in the evidence whether individual plaintiffs wished to stay at the intersection for another reason or reasons, or for reasons that altered in the period between 24-29 January. Of this, more later.

I noted earlier that some of the defendants pursued a counterclaim, which was compromised in the course of the trial; and that evidence was adduced which pertained particularly to the counterclaim but was also relevant to the claim and the defence thereto. It is desirable, in the circumstances, to sketch the incidents which are the subject of the counterclaim. It is unnecessary to explore their foundation in law.

The counterclaim addressed action allegedly taken by protesters at or in the vicinity of four coupes. For convenience sake, I will refer to the coupe by its location and only add the word "coupe" where that addition is necessary for some specific reason:

§ Garvey Track. The logging contractor was Dent’s Logging Pty Ltd. The seventh defendant, and fifth plaintiff by counterclaim, Barry Dent ("Dent"), was a director of that company.
§ Riley’s Ridge North. The logging contractor was Columbus Logging Pty Ltd. Chris Wheeler was a director and shareholder of that company.
§ SSP Catchment 4 coupe – that is, the SSP coupe which was to be logged in the summer of 1998/99. The logging contractor was again Columbus. The sole trafficable entry to that coupe was SSP Track.
§ Webster Hill. Here again, Columbus was the logging contractor.

According to the counterclaim, interference activities were conducted in or in the near vicinity of the following coupes on the following days:

§ Garvey Track: 7, 8, 12, 17 December 1998; 30 January – 5 February 1999.
§ Riley’s Ridge: 11, 12, 13, 15, 19 January 1999.
§ SSP: 24 – 29 January 1999.
§ Webster Hill: 14 January 1999.
That is not to say that evidence was in fact adduced of such activities on each such day.

In addition, though not as part of the counterclaim, evidence was adduced of interference activities in the vicinity of Garvey Track between 30 November and 1 December 1998; and of interference activities at Egan’s Track coupe on two days in January 1999, one of them being 10 January.

It was not suggested that all the plaintiffs had participated in particular activity at a particular coupe other than in the case of SSP coupe; but various plaintiffs were identified as having engaged, along with other people, in direct action of different types at each of the other pleaded sites; and as well at Egan’s Track. Clear it is that various of the plaintiffs were known to various of the defendants before 24 January; and I certainly infer, so far as it was not a subject of direct evidence, that those plaintiffs and defendants disliked and distrusted each other.

I need not at the moment describe in any detail the so-called interference activities in which various plaintiffs were alleged to have engaged, or which they might be taken to have encouraged or supported, before 24 January 1999. It is enough to say that such activities included:

§ obstructing access roads to coupes;
§ being present on log landings and in tree-falling areas;
§ erecting and manning bipods, these structures being at times attached to logging machinery;
§ use of the so-called "lock-on" device;
§ deployment of a so-called "car dragon";
§ clambering onto operating logging machinery whilst it was working;
§ attempting to deceive, or waste the time of, officers of DNRE.

In this short summation I have used what might be called terms of art; and I have not explained why something as simple as presence on a log landing or presence otherwise in a coupe could have significance for work and safety. Those matters do require explanation. I will address them later.

Principles
False imprisonment. Damages – aggravated and exemplary

Fleming[25] describes false imprisonment as –

"…the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actually causing his confinement or preventing him from exercising his privilege of leaving the place in which he is."

Within that description lie a number of aspects which require expansion.

[25]The Law of Torts, 9^th ed p.33.

First, whilst restraint must be total[26] and whilst false imprisonment involves restrain at or in some identifiable place[27], the concept of incarceration has developed an expanded meaning. There can be false imprisonment even if there is a notional means of escape, provided that an available means is unreasonable – as, for instance, involving risk to life or limb[28].
[26]Bird v Jones (1845) 7 QB 742 at 746-7 per Coleridge J, 749 per Williams J and 751-2 per Patteson J.
[27]Bird at 744 per Coleridge J; Myer Stores Ltd and Ors v Soo [1991] 2 VR 597 at 599 per Murphy J.
[28]R v Macquarie v Budge (1875) 13 SCR (NSW) 264 per Hargrave and Fawcett JJ, Martin CJ dissenting on the facts; Burton v Davies and Anor [1953] QSR 26, particularly at 30 per Townley J.

Second, restraint does not imply the use of physical force. It is sufficient that there be submission to the control of another where the person is given to understand that he must submit or else will be compelled[29].
[29]Symes v Mahon [1922] SASR 447 is an example. See per Murray CJ at 453. See also Watson v Marshall (1971) 124 CLR 621 at 626 per Walsh J.

Third, the constraint sufficient on a person’s will, sufficient to cause him to submit, may involve a threat against the person, or against another person, or even valuable property[30].
[30]Bird at 748 per Williams J, 751 per Patteson J, R v Garrett (1988) 50 SASR 392 at 402 per King CJ and at 405 per Van Doussa J, Prosser, Law of Torts, 4^th Ed, 42 cited in Burrow v K-Mart Corp 304 SE2^d 460 (Court of Appeals of Georgia, 1983) at 464-5.

Fourth, although in some cases restraint may be constituted by a person’s submission in the face of a threat, it is not necessarily the case that the victim must apprehend that he is being imprisoned. It has been said that a person may be imprisoned though asleep, unconscious or a lunatic[31]. One of the described consequences of false imprisonment is humiliation; and as Fleming observes, humiliation is no less when it is only learnt of afterwards, or when it is known only to others at the time.
[31]Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53 per Atkin LJ; see also Myer Stores at 615, lines 4-9 per O’Bryan J.

Fifth, in those cases where a person is aware of circumstances what would otherwise constitute an imprisonment, the restraint must occur against the person’s will. So, voluntary compliance with a police request to a person to come along and clear himself does not necessarily amount to an imprisonment[32].
[32]Ferguson v Jensen (1920) 53 DLR 616, Alderson v Booth [1969] 2 QB 216, Garrett at 405 per Von Doussa J.

Sixth, whether there is a false imprisonment is a question of fact[33].
[33]Myer Stores at 611 per O’Bryan J, citing Collins v Wilcox [1984] 1 WLR 1172; see also at 632 per McDonald J.

Seventh, once imprisonment is established, it is for the defendant to prove lawful justification either at common law or by statute[34].
[34]Carnegie v State of Victoria and Ors, Supreme Court of Victoria (Full Court), 4^th September 1989, unreported, cited in Myer Stores by Murphy J at 599 and McDonald J at 625; see also a brief reference in the judgment of Fullagar J in Trobredge v Hardy (1955) 94 CLR 147 at 152.

None of the principles which I have thus far identified deals directly with the situation where a person chooses to be at a particular place, and stays there out of desire to do so after the doing of acts by another which would otherwise amount, let it be supposed, to a total restraint within that place. Assume also that the desire to stay is not motivated by the doing of the acts which would otherwise amount to a total restraint. In the present case, the defendants denied total restraint as that concept is to be understood in light of authority. They also contended that, regardless, the plaintiffs chose to stay at their camp for their own reasons – or in several instances chose to leave and return; and in one instance to enter the area. They further argued that the plaintiffs’ desire to remain explained why, for the most part, the plaintiffs did not take advantage of the reasonable means of egress available to them.

No doubt, a desire to stay at a given place could explain a failure to investigate the availability of and a failure to take advantage of available and reasonable means of egress. But the significance, if any, assuming the existence of circumstances which would otherwise be a total restraint, of a person's wish to stay at a particular place for reasons not attributable to those circumstances, is a different question; and one which could conceivably arise in this case.

According to the defendants’ argument, in the postulated circumstances there would be no imprisonment. According to the plaintiffs’ argument, there would be an imprisonment; the desire to stay would bear upon the question of damages.

Having flagged this issue which, before answering it, I should deal with the question of damages in the context of false imprisonment. Upon that question, these propositions may be stated: first, damages are at large. They do not depend upon proof of injury or of special damage.

Second, important factors to be considered in awarding damages are loss of liberty, injury to feelings and damage to reputation[35]. Within the second category reside indignity, mental suffering, disgrace and humiliation, and any attendant loss of social status[36].
[35]As to reputation, see Walter v Alltoors Ltd (1944) 61 TLR 39 at 40 per Lawrence LJ.
[36]McGregor on Damages, 15^th Ed, paragraph 1619; see also Myer Stores, where at 633 McDonald J cited the equivalent passage in the 14^th ed of McGregor with evident approval, and Vignoli v Sydney Harbour Casino [1999] NSW SC 1113 at [87].

Third, there may additionally be a recovery of damage for resultant physical injury, illness or discomfort[37].
[37]McGregor 15 ed, paragraph 1620, the comparable passage in the 14^th edition being cited by McDonald J in Myer Stores at 633; see also per Murphy J at 603.

Fourth, it had been said that false imprisonment is a tort which by its nature gives rise to aggravated damages[38].
[38]So, in Gold v Healco Services (Victoria) Pty Ltd (Supreme Court of Victoria, 15 April 1988, unreported) Ormiston J said that "(e)very case of false imprisonment, unless it be of an unconscious kind, has elements, greater or lesser, of aggravation”; and in Myer Stores, McDonald J at 633 stated the cited proposition in those terms.

Fifth, in determining what damages should be awarded, evidence of events up to and including trial may be considered. So, for example, a defendant’s refusal to acknowledge that there had been a false imprisonment could be pertinent. However, by analogy with what was said by the High Court in Trigell v Pheeney[39] it would be wrong - or at the very least, not mandatory – to take into account, in giving or increasing damages the raising in a civil claim of a bona fide defence properly or justifiably in circumstances known to the defendant, and evidence honestly given in support thereof.[40]
[39](1951) 82 CLR 497 at 514 - a defamation case, but one in which Walter v Altools was cited and relied upon.
[40]It is perhaps a nice question, in a case of false imprisonment where damages may be awarded, inter alia, for mental suffering, disgrace, humiliation and damage to reputation, where "ordinary" compensatory damages end and "aggravated compensatory damages" begin. That issue was mentioned in Vignoli at [89], where Bergin J referred to Spautz v Butterworth and ors (1996) 41 NSWLR 1. In Spautz, at 14-18, Clarke JA concluded, in effect, that in assessing "ordinary" compensatory damages the whole of a defendant’s conduct up to the time of verdict which may have the effect of increasing injury to a person’s feelings might be taken into account; but that for a plaintiff to be entitled to aggravated damages, he must show that the conduct of the defendant was neither bona fide nor justifiable. It appears to me that Triggell has something to say about awards of aggravated damages in cases of false imprisonment. Clarke JA referred to Triggell and to Coyne v Citizen Finance Ltd (1991) 172 CLR 211, in which Triggell was considered, in reaching the conclusion which I have identified. I doubt that his Honour’s approach on the one hand, and the possible relevance of Triggell which I perceive on the other hand, would be likely to yield any different overall outcome, although depending upon which approach was taken the balance of "ordinary" and "aggravated" compensatory damages might differ.

Sixth, in Lamb v Cotogno[41], the High Court, after referring to what had been said by Lord Davlin in Rookes v Barnard,[42] observed that –

"aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded 'as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself."

[41](1987) 164 CLR 1 at 8

[42][1964] AC 1129.

The Court said also that "… in some cases it may be difficult to differentiate between aggravated and exemplary damages.[43] That is evidently so, although as a matter of legal theory aggravated damages look at events from the standpoint of the plaintiff, whilst exemplary damages focus particularly upon the quality of the defendant's conduct.[44]
[43]At [8].
[44]Also see in this connection the pithy analysis by Kirby J in Gray v Motor Accident Commission (1998) 196 CLR 1 at [101].

It seems to me, with respect, that the difficulty of which the High Court spoke was well described by Winneke P in De Reus v Gray[45] where his Honour said –

"In contrast to exemplary damages, aggravated damages are compensatory in nature, and are 'awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like.' Because they are compensatory in nature attention is therefore focused on the harm to the plaintiff caused by the manner in which the harm has been inflicted. However, because such damages, albeit awarded to compensate the plaintiff, are to be measured by the manner in which the wrong was done – and indeed by the defendant's attitude down to the time of trial – the distinction between aggravated and exemplary damages has often been characterised by looseness of expression to the point where it is, perhaps, more easily conceptualized then described. Indeed, it is because aggravated damages are awarded for the increased hurt to the plaintiff caused by the manner in which the defendant has committed the wrong that Windeyer J was constrained to acknowledge in Uren v John Fairfax & Sons Pty Ltd that there is an element of the punitive in aggravated damages. This is particularly so in defamation cases where the extent of the defendant's malice is relevant to an award of aggravated compensatory damages. As McHugh J pointed out in Carson v John Fairfax & Sons Ltd:
'To say that no element of punishment enters into the assessment of aggravated compensatory damages and that the effect of such an award is merely to compensate the plaintiff for the increased harm which that person suffers is to resort to fiction in many cases.'"

[45][2003] VSCA 84 at [28].

Seventh, the difficulty of which the High Court and Winneke P spoke is not, I think, limited to defamation cases. According to Batt J in Private Parking Services (Vic) Pty Ltd and ors v Huggard[46] a case of detinue and conversion, the element of punishment which lay within "a combined award of general and aggravated damages", needed to be considered when reviewing an award of exemplary damages.
[46]Supreme Court of Victoria, 15 February 1996, unreported.

Eighth, the approach commended in Private Parking is compatible with principles later expounded in Backwell v AAA[47] concerning exemplary damages. There the Court of Appeal concluded that, in a jury trial, the jury should be instructed to display restraint or moderation in relation to an award of such damages. No doubt the same approach should be applied by a judge sitting alone.
[47][1997] 1 VR 182.

Further in Backwell, the Court held that the law was as described by Lord Devlin in Rookes v Barnard to this extent:

"a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum."[48]

[48]Rookes at 1228, cited by Ormiston JA in Backwell at 206-207.

In the working out of that approach, as Ormiston JA said, much will depend upon the nature and circumstances of the particular case. It might be more readily concluded, always depending upon the particular case, that compensatory damages will be adequate punishment in cases where compensatory damages are at large, a fortiori where an award is made of aggravated compensatory damages.[49]
[49]See per Ormiston JA at 208 lines 2-22, 209 lines 5-13, and 208 line 34-210 line 20.

Ninth, although in proposition 6 I briefly referred to the circumstances which may call for an award of exemplary damages, a little more should be said in that connection. The leading contemporary authorities are Lamb and Gray v Motor Accident Commission[50].
[50](1998) 196 CLR 1.

In Lamb, the High Court identified punishment and deterrence as relevant objects. As to the punitive aspect, their Honours referred[51] to what had been said by Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd[52]:
[51]at 9.
[52](1985) 155 CLR 448 at 471.

"As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories."

As to the deterrent aspect, their Honours said that
"the deterrence which is intended extends beyond the actual wrongdoer and the exact nature of his wrongdoing . It is an aspect of exemplary damages that they serve to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace."[53]

They said also that
"So far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like-minded persons, but it also extends generally to conduct of the same reprehensible kind."[54]

[53]At 9.

[54]At 10.

Gray raised the issue of exemplary damages in a particular context – that is, the particular significance of the imposition of a substantial criminal punishment for conduct which was at the heart of a civil proceeding in which exemplary damages were claimed. In that connection, the majority held that there was no availability of exemplary damages[55]. Kirby and Callinan JJ, to the contrary, regarded criminal punishment as simply a factor going to the exercise of a discretion whether to award exemplary damages. There was, however, discussion in Gray of exemplary damages generally. In that connection it was affirmed, in the joint judgment, that the phrase "conscious wrongdoing in contumelious disregard of another’s rights" describes at least the greater part of the relevant field[56]. Whilst their Honours were somewhat critical of the imprecision of authorities which say that there is a discretion to award exemplary damages[57], they did not deny that a decision to award exemplary damages, and their quantification, involves – except where there is no room for discretion, as in the case there at hand – the exercise of a discretion[58].
[55][40].
[56]At [14]. See also [20], where their Honours described the remedy as exceptional in the sense that it arises chiefly, if not exclusively, in a case where the defendant’s conduct can be so described.
[57]See at [25].
[58]See at [26]; and see also per Callinan J at [143], the propriety of his Honour’s approach generally being not denied, I think, by his dissent on the question of the particular significance of imposition of substantiated criminal punishment.

Beyond that, and as in Bowles' case, even if I accepted Fowkes' evidence, and even if I concluded that it bespoke psychiatric injury, it would be another question whether the same could be causally connected – other than as a matter of guesswork – with the offending conduct.

Ms Colson

Counsel for the plaintiffs, as I have said, sought an unstated amount of ordinary compensatory damages for Ms Colson for headaches, regardless whether they should be categorised as distress or injury. He mentioned in passing the migraine for which she sought attention on 29 January.

In examination in chief, Ms Colson gave this evidence about distress or injury: On 28 January she was very distressed and was crying a lot, all day, on and off. On the morning of 29 January she was exhausted. At the Clinic she was given Panadeine Forte for a migraine. On Sunday 31 July she and Fowkes returned to her father's home at Melton. She attended the counter-rally at Parliament House the next day, and on the Tuesday took part in the occupation of the DNRE office at Ballarat. She had nightmares that lasted on and off for six months, and on and off after that. Until the following year she did not want to go back into the forest. She had many discussions with Fowkes about what had happened, and that was good. The next year[1324] she went to Riley’s Ridge and remained there a few weeks[1325].
[1324]In fact it was from December 1999.
[1325]T 2342-5.

Further in evidence in chief, Ms Colson gave evidence of sleep interference. In substance, she said that on the Tuesday night she had a couple of hours sleep. She had been too scared to sleep. There had been the noise of a generator, chainsaws and drums; and floodlights[1326]. The Wednesday night had been the worst, with the same features as the previous night, and also loud clapping, yelling, screaming and videotaping[1327]. On the Thursday night she had been up until about 4 am, trying to dry bed clothing.
[1326]T 2335, 2435.
[1327]T 2337.

Whilst there are some aspects of Ms Colson's evidence about the offending conduct which I have not accepted, I do accept her evidence that such conduct contributed to her being substantially deprived of sleep on the nights of 26 and 27 January. That is not the case insofar as she was deprived of sleep on the night of 28 January.

Again, I see no reason to doubt her evidence that she suffered from a migraine on 29 January, and that she had periodic nightmares after SSP week, mainly in the first six months. I accept also her evidence that she did not want to go back into the forest at the outset, and that she had many discussions with Fowkes about the incident.

What are the consequences of those conclusions? As I said earlier, I think that the migraine would fit the description of physical injury. I add that the burden of the evidence, actual and inferential, is that it began and ended on 29 January. I further conclude that the nightmares were probably related to mental distress, and that a cause of that distress was sleep deprivation contributed to by the offending conduct. It would be speculation, however, no more, for me to conclude that nightmares should be characterised as physical injury; and equally speculative for me to conclude that they bespoke psychiatric injury.

Beyond what I have said, I cannot conclude that Ms Colson suffered either physical injury or psychiatric injury. In particular, the circumstances that Ms Colson was not minded to go back into the forest for a period of months, and that she talked with Fowkes a lot about the incident, seem to me to be ambiguous. It would be speculation to conclude that they bespoke psychiatric injury rather than an entirely rational response to an incident of some moment.

In the event, I consider that in respect of the only compensable injury which she established, that is, the migraine, an award of $2,250 should be made in Ms Colson's favour against all the defendants other than Arbuthnot, Brian Wheeler and Benson, that amount including aggravated compensatory damages of $750. With respect to aggravated damages, what I said in Ms Jackson's case equally applies; as does what I said about exemplary damages.

Ms Epstein

In Ms Epstein's case, as I have earlier noted, counsel submitted that there was a proper claim for compensatory damages for distress, but that psychiatric injury could not be claimed. That concession, if justified, doomed Ms Epstein's Wilkinson v Downton claim to failure.

I should mention the evidence which was given by Ms Epstein and her father. I have already referred to the Clinic record and explained why it does not advance Ms Epstein's position.

In evidence in chief, Ms Epstein said that after SSP week she had some fear of being in the bush, and found herself thinking about that from time to time. She could not say definitely for what period of time. It had come back over the years. She mentioned an incident in Warrnambool, probably a couple of months after SSP week, when an SEC worker arrived at her house dressed in a yellow fluoro vest. She hid and did not want to talk to him. She thought he might have been a logger coming for revenge, to get her[1328].
[1328]T 2504-5.

The evidence which I have just outlined was given before cross-examination revealed Ms Epstein's involvement in the incident at No. 9 coupe in early 2000[1329] - an incident which in re-examination she asserted caused her distress So also, the question whether her evidence should be accepted depends in some measure upon my assessment of the reliability of Ms Epstein's evidence generally. For all that, I conclude that following SSP week Ms Epstein did experience some of the responses of which she gave evidence.
[1329]See paragraphs [473] – [475] above.

Associate Professor Judd Epstein gave evidence that two to three years before January 1999 there had been a time when his daughter Amy had become very low. She had been unable to carry on her studies or her life effectively. There had been lengthy periods of crying, inertia, of inability to leave her own room.

Subsequent to that period his daughter had taken time off from completing VCE, then had decided to begin tertiary studies at Deakin University. She had to his observation recovered from the bout of being low, and from the inertia.

The witness said that he first saw his daughter, after SSP, when she came home, accompanied by two friends (presumably Fowkes and Colson). She was very dirty, very tired, very quiet. She was withdrawn and not fully communicating.

His daughter remained at home, he said, for about a fortnight; but she was not there every day. At times she would lighten up and be more active; but she continued to be withdrawn, quiet, and lacking the animation that he normally associated with her.

In 1999, the witness said, his daughter returned to Deakin University. She completed that year, but not as effectively as the year before.

In the Christmas break of (?) 1999/2000, Professor Epstein said, his daughter went to Cental America to study. On her return she seemed to be wholly well. Thereafter there was an occasion when she went to the Otways. She came back very shaken, much lower, less happy, much more agitated, much more ill at ease. That evidence probably pertained to the aftermath of the incident at No. 9 coupe.

Finally, the witness gave evidence that his daughter, having returned from Far North Queensland to give evidence at trial, had apparently been adversely affected by the trial process.

This was par excellence a case where medical evidence was likely to have been of great assistance to the Court. It is not clear to me whether Ms Epstein had any medical treatment at the time when, years before January 1999, according to her father's evidence, she became seriously withdrawn. If she did have treatment, it would have been very relevant to know what condition had been the diagnosed; for it might well have set the scene for a conclusion that a particular aspect of SSP week events caused a recrudescence of the same. Such a conclusion might have been reached particularly if a doctor - a fortiori any earlier treating doctor - had examined Ms Epstein subsequent to SSP week and had diagnosed the existence of psychiatric injury in the setting of a previous psychiatric disorder. It is very difficult to understand why, at the least, no psychiatric examination was conducted for medico‑legal purposes – that is, assuming that no such examination was in fact conducted.

Absent medical evidence, I think that the Court has really been cast adrift on a sea of speculation. I have a real concern, despite counsel's concession that this was a case of distress and not psychiatric injury, that Ms Epstein may have suffered the latter. But I am unable to so conclude. I have no guidance as to how any such injury would be characterised; nor any guidance whether, if there was injury, it could sensibly be related to mental distress caused or contributed to by the offending conduct.

Public Nuisance

In considering the claim in public nuisance pleaded by each plaintiff it is necessary to keep steadily in mind the allegation raised by paragraph 43 of the statement of claim. It is that between 25 and 29 January the defendants, in concert with the other loggers:

"Placed themselves, their vehicles, banners and other objects across Seaview Ridge Road at a short distance on either side of the intersection with SSP Track so as to create an obstruction to persons, such as the plaintiffs, using the said road…"

The particulars to paragraph 43 refer the reader to the 53 particulars subjoined to paragraph 5 of the statement of claim. Many of those particulars are disconnected from the substance of the plea. That is so, other instances apart, in the case of the loggers' "blockade" at Turton Track intersection alleged by particular (ss) to paragraph 5.

The plea raised by paragraph 43 of the statement of claim in terms is not sustainable. On no possible view of the evidence did the defendants, other loggers, vehicles, banners or other objects – or any combination of the same – create a continuous obstruction across SRR to the north and south of SSP intersection, and a short distance therefrom, between 25 and 29 January.

On the other hand, focussing upon the area to which paragraph 43 refers, I have earlier concluded that at times on the afternoon of 25 January loggers' vehicles were parked on SRR as well as on its verges, and that vehicles were probably so parked at times on 26 January and possibly on occasions later in the week. I have concluded also that at times on 25 January, and probably at times on 26 January, and possibly on occasions thereafter, SRR was physically obstructed; on one occasion completely, and on other occasions at least partially. I have further concluded that it would have been necessary to move one or more vehicles, on the occasion that the road was completely obstructed, in order that there be passage north and south of SSP Track; and that it may have been necessary to move a vehicle or vehicles to ensure such passage on occasions when SRR was at least partially obstructed. I have concluded, on the other hand, that no obstruction was shown to have impeded the passage of police vehicles up and down SRR at any time during the week.[1330] So also, I add, journalists attended the intersection on 26 and 27 January; and a TV crew did so on 26 January. There is no evidence that their passage along SRR was physically obstructed by parked vehicles. In all, any loggers' vehicles which created a temporary interference with passage must have been moved when circumstances so required.
[1330]See generally [1036] above.

It is next the case that no member of the general public gave evidence that his or her vehicle had been impeded, on any occasion during SSP week, from passing and repassing along SRR – which is and was then a public road, although the evidence does not suggest that it was ordinarily much used - by the presence of loggers' vehicles. That circumstance stands in stark contrast with complaints which asserted, at least implicitly, that the road was blocked. In the latter connection I refer to Ms Nelson's account of what Tipler allegedly said to Robinson on 26 January, Mullaly's telephone conversation with Robinson later that day, and the telephone call which Robinson received from a lady who expressed concern about "food and water issues as well as road closure".

There was evidence that at some stage on the afternoon of 25 January, to the south of the intersection, a chain was stretched between a stump and a vehicle. As I understand it, the chain itself was not said to have obstructed SRR [1331]. In the event, the most that could be said is that if SRR in the vicinity had otherwise been obstructed by vehicles at the time, then the chain – if indeed one was set up – would have precluded a vehicle travelling around the obstructing vehicles on one particular side of SRR.
[1331]Dwan, T 692-3.

As to the presence of parked vehicles wholly or partly on SRR, I should add this: excepting an instance on 25 January which involved vehicles being parked transversely, it appears to me that what was done involved nothing more than the defendants, their families, and other loggers parking as close to SSP intersection as was possible.

Moving away from vehicles, and the alleged chain, I am satisfied that no inanimate object set up on SRR within a short distance of SSP Track obstructed vehicular passage generally along SRR at any time during the week. Specifically, I am satisfied that the loggers' caravan (and its awning) did not do so. Further, the allegation of obstruction by banners is unsustainable. Whilst the loggers had a banner, it was not used to obstruct SRR. Indeed, the banner which was mainly in evidence during SSP week was the banner erected by the protesters to mark out the dividing line between the separate areas of the protesters and loggers, the idea of separate areas having been raised by Dwan.

Thus far I have focussed upon the obstructing impact, if any, of inanimate objects upon the passage of vehicular traffic generally along SRR. But what of obstruction to passage of the plaintiffs' vehicles?

These points may be made: first, no such vehicle attempted to leave SSP intersection along SRR at any time between the arrival of the loggers' party on 25 January and the departure of the protesters on 29 January.

Second, that is so even in the period after Ms Calvert invited the protesters to leave, and before she announced that a picket had been set up.

Third, each plaintiff who had a vehicle made no attempt to leave SSP intersection in that vehicle for one or more of the reasons which I have discussed earlier.

Fourth, Ms Calvert, in response to Dwan's proposal that he wanted to be free to drive up and down SRR, and his question whether that was to be prevented, replied "It's a picket, mate", and shook her head. As I earlier remarked, Dwan's proposal and question were evidently directed to drawing Ms Calvert out on the effect of the picket. Her response, and gesture, were a prediction; a prediction tempered by the fact that, as I have concluded, the picket was to operate as an act of persuasion.

Obstruction is a fact. Obstruction is not the same thing as threatened obstruction, even if the threat is likely to be carried out. Still less is it obstruction if the threat would not have been carried out, or if and insofar as the reasons for persons not seeking to pass along a public road are discrete from such threat. In my opinion, the circumstances do not enable a conclusion that the plaintiffs' vehicles, as distinct from the vehicles of the public generally, were obstructed by loggers' vehicles, or by any other inanimate objects in the vicinity of SSP Track, from passage along SRR during SSP week. Neither do I consider that the presence of the defendants, their families and other loggers in the vicinity of SSP Track obstructed the passage of the plaintiffs' vehicles along SRR during that period.

I go to the question whether the presence of the defendants, their families and other loggers obstructed pedestrian passage along SRR in the vicinity of SSP Track in the course of the week. Putting the incidents involving Ms Jackson and Ms Nelson to one side for the moment, I consider that there was no such obstruction at any time.

Other than in the case of Ms Nelson, no member of the general public was shown to have been obstructed in attempting to pass along SRR on foot in the vicinity of SSP Track. Next, whilst it is the case that there were varying numbers of loggers and their families in the vicinity of the intersection during the week[1332], the evidence did not show that they constituted a physical obstruction to passage. Further, for one or more of the reasons which I have earlier discussed, excepting Ms Jackson no plaintiff attempted such passage.
[1332]I have concluded that numbers dropped off on and from 27 January; but nothing particularly turns on that.

I should mention the incident(s) discussed at paragraphs [2006] – [2011] above. In the circumstances which I there described, it could not be said that the protesters being told to go back to their area made out the fact of obstruction of SRR in the vicinity of SSP Track, either at the particular time or more generally.

I should mention also McFadzean's attempt to leave, in part along SRR, on 26 January. It follows from the conclusions which I have expressed[1333] that this was not a case of obstruction of SRR as would ground a claim in public nuisance.
[1333]See paragraphs [1314] - [1325] above.

Pausing for a moment, the point thus far reached is that, speaking of the entirety of SSP week, and putting the incidents involving Ms Jackson and Ms Nelson to one side for the moment, there is no evidence that any vehicles or persons on foot were in fact obstructed from passing along SRR, even fleetingly, by the presence near SSP Track of inanimate objects; or by the presence of the defendants, their families, and other loggers. That is so notwithstanding that, at times, loggers' vehicles were parked wholly or partly on SRR, on one occasion completely blocked the road, and on other occasions constituted at least a partial obstruction thereof.

What, then, of the incidents involving Ms Jackson and Ms Nelson? The latter[1334] may be put aside. There is no claim by Ms Nelson; and the incident casts no light, in my opinion, upon the question whether there was ever an obstruction to the plaintiffs' passage by foot along SRR in the vicinity of SSP Track.
[1334]Which, it may be noted, is not mentioned in the particulars to paragraph 5 of the statement of claim, which are constituted the particulars of paragraph 43.

I turn to the incident involving Ms Jackson. My pertinent conclusions are set out at paragraphs [1256] – [1262] above. I will not repeat them, but merely highlight the following aspects.

First, Ms Jackson did have an intention, albeit fragile, of leaving along SRR when she left the protesters' camp.

Second, there was obstruction of SRR by loggers, at least one woman, and children as Ms Jackson walked north.

Third, the loggers' group fell back as Ms Jackson approached; but it held position, in the sense that its members did not part.

Fourth, when the loggers' group held position, Ms Jackson abandoned her intention of leaving. She returned to the protesters' camp as an alleged victim of the picket.

Fifth, had Ms Jackson understood that the picket was an act of persuasion, she would have understood – as was the case in fact – that had she pressed on, her passage along SRR would not have been precluded. But she did not have that understanding.

In my opinion, in the circumstances described, Ms Jackson was denied free and uninterrupted use of SRR. Such denial was not long lived, but I consider that it should be described as substantial. I further consider that it should be categorised as an unreasonable. Those who obstructed her passage had no right to do so.

In my opinion, further again, the denial of Ms Jackson's free and uninterrupted use of SRR may be said to have caused her detriment beyond that suffered by the public at large. Indeed, the public at large suffered no detriment; for the incident in question had no application to it.

In the event, I consider that Ms Jackson is entitled to damages against all the defendants except Arbuthnot, Brian Wheeler and Benson. Consistently with what I have already said about concerted action, I consider that the denial of passage should be characterised as conduct in concert by the remaining defendants, together with others.

In assessing damages, I note that I have already compensated Ms Jackson, on the Wilkinson v Downton claim, for her psychiatric injury; and that I have treated the incident under discussion as one circumstance contributing thereto. It seems to me, in the event, that what particularly falls to be compensated is any inconvenience and delay attributable to the denial of passage on that occasion.

Because, for reasons discussed, there was more than one means of egress, not unreasonable, by which Ms Jackson could have left the area between 25 and 28 January, she should not be compensated as if denial of passage on 25 January had the effect of obliging her to stay at the camp until 28 January. Nonetheless, and notwithstanding the likely interposition of other reasons for her not leaving, I consider that it is reasonable to allow for some inconvenience and delay.

I am not satisfied that the circumstances of the matter call for an award of either aggravated or exemplary damages, assuming the availability of the same. As to the former, the circumstances of the denial of passage, I have concluded, were very different to the account given by Ms Jackson. I do not conclude that, fairly considered, any harm inflicted by the denial of passage was made worse from Ms Jackson's perspective by the way in which the harm was inflicted. As to exemplary damages, there was a denial of passage sufficient to establish the cause of action; but the denial was essentially of a technical kind, and was not accompanied by any other conduct as would ground an award of such damages.

All in all, I consider that the appropriate amount of damages is $7,500.

Counsel for the plaintiffs submitted, in effect, that the denial of passage to Ms Jackson was seen or learned of by others, who then believed that passage was unavailable to them. Even if that was so, and even if it caused other plaintiffs not to attempt passage along SRR on foot – these are matters which I have extensively considered in these Reasons - it would not make good the fact of obstruction in the case of any other plaintiff. It needs to be remembered that the pleas of public nuisance and false imprisonment are not equivalents.

I should finally mention the logger picket at Turton Track intersection. I do so notwithstanding the fact that paragraph 43 of the statement of claim is in terms not directed to that picket; and that it is not for particulars to expand a pleading.

The evidence shows, as I have already concluded, that there was a picket at Turton Track intersection from the late afternoon or evening of 25 January, that it was constituted at any one time by a few loggers, and that its purpose was to prevent sympathisers of the protesters, and undesirables amongst the loggers, from getting to SSP intersection. The evidence also shows that Ms Nelson, Tipler, and a number of other sympathisers went to, but not beyond, that picket on 26 January and thereafter; and that Arbuthnot should have been, but was not. prevented from getting to SSP intersection on 28 January. There is also the evidence of the remark made by Chris Wheeler to McFadzean on 26 January.

In my opinion the evidence does not show that there was ever a physical obstruction of SRR at its intersection with Turton Track. It is improbable, indeed, having regard to the layout of the intersection, that there could have been such an obstruction – at least unless a substantial number of vehicles had been present; or unless the obstruction was within SRR itself. Further, even if Ms Nelson or any of her colleagues had been obstructed from passing down SRR, it would not inure to the benefit of action by the plaintiffs; and it would not demonstrate that there was ever an obstruction to the passage by any plaintiff along SRR at or near its intersection with Turton Track.

Summary

I have reached these conclusions with respect to the plaintiffs' claims:

First, Ms Jackson, Greig, Ms Lees, Ms Dawson and Ms Colson have made out claims for ordinary and aggravated compensatory damages on the Wilkinson v Downton cause of action. No other plaintiff has done so. Those plaintiffs who have made out such claims have done so against all the defendants excepting Arbuthnot, Brian Wheeler and Benson. I have assessed damages as follows: Ms Jackson - $30,000; Greig - $22,500; Ms Lees - $30,000; Ms Dawson - $37,500; Ms Colson $2,250.

Second, Ms Jackson has made out a claim in public nuisance against all the defendants excepting Arbuthnot, Brian Wheeler and Benson. No other plaintiff has established such a claim. I have assessed Ms Jackson's damages at $7,500.

Third, Ms Dawson has made out a claim for ordinary compensatory damages in an amount of $2,500 in respect of the assault and battery pleaded by paragraph 28C of the statement of claim. She has established that claim only against Chris Wheeler and Wilson.

Fourth, Ms Gross has made out a claim, against Ms Calvert only, in respect of the matter pleaded by paragraph 27 of the statement of claim. I have assessed ordinary compensatory damages at $1,000.

Fifth, no plaintiff has established any other claim against any of the defendants.

I will hear submissions, at a time convenient to counsel, as to what orders should be made.

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[2004] VSC 289

19 August 2004