McFadzean & Ors v Construction Forestry Mining and Energy Union & Ors [2007] VSCA 289

Court of Appeal (Vic)|2007-12-13|Before: WARREN CJ, NETTLE and REDLICH JJA

Tort - False imprisonment - Environmentalists partaking in anti-logging demonstration and subjected to false imprisonment by logging contractors - Elements - Perceived total restraint by joint tortfeasors - Egress - Whether forms of egress said to be available unreasonable - Claim dismissed.

Tort - Public nuisance and particular damage - Obstruction by loggers either partially or fully of public highway - Whether degree of nuisance went beyond general inconvenience - Claim dismissed.

Tort - Damages - Exemplary damages - Aggravated damages - Respondents adequately punished by order for payment of compensatory costs - No error in exercise of discretion.

Costs - Proportions of costs - Orders for proportions of costs to reflect mixed success and failure - Single order more readily facilitating taxation than costs by issues - Fair and just exercise of discretion in all the circumstances.

GAVAN MICHAEL McFADZEAN Firstnamed Appellant (Firstnamed Plaintiff)

KRISTEN LEES Secondnamed Appellant (Secondnamed Plaintiff)

TESSA JACKSON Thirdnamed Appellant (Thirdnamed Plaintiff)

DONNA GROSS Fourthnamed Appellant (Fifthnamed Plaintiff)

ALEXANDER JOHN BOWLES Fifthnamed Appellant (Sixthnamed Plaintiff)

LEIGH DWAN Sixthnamed Appellant (Seventhnamed Plaintiff)

AMY EPSTEIN Seventhnamed Appellant (Eighthnamed Plaintiff)

PAUL ANTHONY FOWKES Eighthnamed Appellant (Ninthnamed Plaintiff)

ELI GREIG Ninthnamed Appellant (Tenthnamed Plaintiff)

JULIE ANNE COLSON Tenthnamed Appellant (Eleventhnamed Plaintiff)

JANINE DAWSON Eleventhnamed Appellant (Twelfthnamed Plaintiff)

ENERGY UNION Firstnamed Respondent (Firstnamed Defendant)

JANE CALVERT Secondnamed Respondent (Secondnamed Defendant)

CHRISTOPHER CLIFFORD WHEELER Thirdnamed Respondent (Thirdnamed Defendant)

GEORGE MOLLOY Fourthnamed Respondent (Fourthnamed Defendant)

MICHAEL JOSEPH NOCERA Fifthnamed Respondent (Fifthnamed Defendant)

BARRY JOHN DENT Sixthnamed Respondent (Seventhnamed Defendant)

DONALD GORDON PEARCE Seventhnamed Respondent (Eighthnamed Defendant)

DAVID REECE SHEPPARD Eighthnamed Respondent (Ninthnamed Defendant)

TREVOR FRANCIS WILSON Ninthnamed Respondent (Tenthnamed Defendant)

WAYNE JOHN McGEE Tenthnamed Respondent (Twelfthnamed Defendant)

BRIAN PATRICK WHEELER Eleventhnamed Respondent (Thirteenthnamed Defendant)

CHARLIE PAUL NEMET Twelfthnamed Respondent (Fourteenthnamed Defendant)

SHANE JOHN FLANNIGAN Thirteenthnamed Respondent (Fifteenth Defendant)

WAYNE ANDREW BENSON Fourteenthnamed Respondent (Sixteenth Defendant)

**1 This is an appeal from a judgment given in the Common Law Division in a proceeding which arose out of an anti-logging demonstration and an opposing pro-logging picket in the Otway Ranges in the period between Monday 25 January 1999 and Friday 29 January 1999 ('SSP week').

2 For some time before SSP week, various people (including some of the appellants) engaged in various anti-logging protests. Some of the respondents were loggers who were affected by the protest activities and, by January 1999, the respondents had serious concern for the future of the logging industry in the Otways.

3 In early 1999, the Construction, Forestry Mining and Energy Union ('CFMEU') was invited to meet some of the respondents to discuss the subject of green protests against logging and, pursuant to that invitation, the CFMEU organised a public meeting for Thursday 21 January 1999. The meeting was addressed by the respondent, Jane Calvert, who was an official of the CFMEU, and by Chief Inspector Robinson ('Robinson') of the Victoria Police, who was the officer commanding the police division in which the protest area was situate. It was resolved at the meeting to undertake '...direct response against protesters including barricading same in'.

4 Pursuant to that resolution, Calvert and other respondents later met and resolved that they would picket green protesters under certain conditions at a location to be selected away from passing traffic on a one-way road into a coupe. SSP Track met that description. They also agreed that the picket would be in accordance with a protocol which required that there be no alcohol, no violence, compliance with Calvert's directions and compliance with any police directions.

5 On Sunday 24 January 1999 some of the appellants and other protesters went to SSP coupe which was approximately three quarters of a kilometre down SSP track. Being Sunday, the group did not expect to see any work being done at the coupe. They discovered, however, that the third named respondent, Christopher Wheeler, was present and working with a log loader. One of the group climbed onto the log loader and others remonstrated with Wheeler. He then drove out of the coupe.

6 The group next attempted to drive out of the coupe in their three cars, including a car belonging to the appellant, Dawson, but they were stopped at the gate by loggers blocking their passage. The group was thus prevented for some time from leaving by car, and in the course of that incident Dawson was assaulted. After a while, some of the group levered the gate from its post and by that means Dawson and another person were enabled to return to a base camp at Mt Sabine. They told other demonstrators who were there what had happened.

7 That night, some of the appellants and others camped ('the SSP camp') at the intersection of SSP track and the Seaview Ridge Road ('SRR') and, during that night, some of the loggers smashed the windows of vehicles belonging to the appellant Greig and another camper, Raemon Donato, by throwing rocks from a passing vehicle.

8 At about midday on Monday 25 January 1999 approximately 60 loggers, their families and other supporters and Calvert arrived at the intersection of SSP track and SRR. The loggers appeared by and large to have a clear chain of command, with Calvert in charge. She was the 'clearly identified spokesperson' for the respondents, and all respondents acknowledged that she was their leader. Calvert told the appellants that it was the intention of the loggers to picket the SRR. She said that if any of the appellants wished to leave, they should leave now, because they would not be permitted to leave once the picket was in place.

9 By mid-afternoon the respondents had imposed the 'picket' by assembling across the SRR road so as to appear to block it, and the picket thus remained in place for the rest of SSP week. The respondents also established a second picket across SRR at its intersection with Turton Track, approximately 1.5 kilometres from SSP Track.

10 The respondents kept the police informed of their activities and, under Robinson's command, police established a roster which instructed members that:**

...logging contractors have blockaded the green demonstrators and set up an official picket line indicating that they will not allow the Greens to leave the area.

Instructions from Chief Inspector Robinson requires [sic] us to supply a member at this picket line to prevent breaches of the peace. Members will take no active role as to the legality of this picket at this stage.

**11 The picket extended into the bush each side of SRR 'as far as sight and sound'. The respondents placed cans attached to fishing lines in that area in order to alert them to the movement of persons through the bush. The respondents also used chainsaws, beat makeshift drums, ran generators close to the appellants' camp, threw stones against the appellants' tents and cars and engaged in other like conduct in order to harass and annoy the appellants.

12 After the picket had been established, Calvert offered to escort the appellants safely through the picket line if they agreed never again to engage in any form of protest at a logging coupe. The appellants refused to enter into any such agreement.

13 During the week Calvert had several discussions with the respondent, McFadzean, about the possibility of a general agreement, involving the protest organisation, Otway Ranges Environment Network Inc. ('OREN'), not to protest in the Otways for the remainder of the season. McFadzean did not exclude the possibility out of hand and it was not until the night of Thursday 28 January 1999 or possibly the morning of 29 January 1999 that it became clear that OREN would not enter into such an agreement.

14 It was possible for the appellants to leave the SSP camp by walking out through the bush and then seeking transport away from the area. 'As the crow flies', it was only about 1.5 km through the bush to Turton Track. The terrain between SSP camp and Turton Track was, however, densely vegetated and, apart from a narrow strip of relatively flat land beside SRR, it was rugged and steep. Walking out through the bush would also have necessitated the appellants leaving some of their possessions, including motor vehicles, at the SSP camp. But, despite such difficulties as that may have entailed, two of the appellants, Greig and Fowkes, did walk out in that fashion on 26 January 1999 and later walked back in again. McFadzean also attempted to walk out on 26 January 1999 but was spotted on the SRR beyond the first picket and returned by two of the respondents by car to the campsite.

15 On the morning of Thursday 28 January 1999 McFadzean sought permission to leave in order to obtain medical attention for what he said was a problem with his eyes and also in order he said to accelerate discussions about the possibility of the general agreement with OREN. He was allowed to go on that basis.

16 On the same day, permission was sought for Jackson to be allowed to leave to obtain medical attention for a psychiatric condition from which she was said to be suffering. Initially, permission was refused. Later police became involved and eventually, after several hours, police summoned an ambulance which was permitted to cross the picket line in order to take Jackson out.

17 Later in the afternoon of Thursday 28 January 1999 Mr Bela (Bill) Gross, who was the father of the appellant Gross, walked in with some others in order to bring his daughter extra blankets and warm clothing. He then asked Calvert for permission to be allowed to leave along SRR, but she refused. Gross therefore sought police assistance and the officer concerned sought instructions from Robinson, but Robinson declined to provide police assistance. Eventually, however, Calvert agreed to allow Gross to leave via SRR if he signed a non-protest agreement, which he did, and it was witnessed by one of the police officers present at the picket.

18 The respondents finally removed the picket lines on the morning Friday 29 January 1999 and within a couple of hours the appellants packed up and left the area by car along SRR.**

19 The substance of the appellants' claims below was that:

All of the appellants had been subjected to false imprisonment during so much of the period between 25 January 1999 and 29 January 1999 that they were not permitted to leave along the SRR.
The appellant, Dawson, had been assaulted and battered by the respondents C C Wheeler and Wilson on 24 January 1999 at the gate to SSP coupe.
All of the appellants while at the SSP camp between the 25 January and 29 January 1999 had been assaulted by the loggers subjecting them to threats, intimidation, stone throwing, noise and other harassing conduct, which caused the appellants to fear for their safety.
All of the appellants had thus been subjected to conduct which caused injury giving rise to a claim under the rule in Wilkinson v Downton.[1]
All of the appellants had been subjected to a public nuisance by being prevented by the loggers from leaving via the SRR.
As a result of the foregoing, the appellants McFadzean, Lees, Jackson, Dwan, Greig and Dawson had suffered post-traumatic stress disorder ('PTSD'), and psychiatric, psychological and other injuries, including pain and suffering, and the appellant Colson had suffered migraine, anxiety, stress, sleeplessness, cuts, and pain and suffering.
By reason of the contumelious conduct of the loggers, the appellants were entitled to exemplary damages.

20 After a trial before judge alone, which extended over 63 sitting days, the judge rejected the bulk of the appellants' claims. His Honour found that:

The appellants had not been falsely imprisoned, because:

they could have left the clearing via the SRR by asking the police to assist them through the picket ('the police gate'); 2. further alternatively, it was practicable and reasonable for the appellants to walk out through the bush ('the bush gate'); and

further alternatively, the appellants did not wish to leave the SSP camp.
The general allegation that all appellants had been assaulted was not made out because, although the loggers' conduct was calculated to annoy or inconvenience the appellants and to deprive them of sleep, and was capable of causing alarm or fright, it did not cause any appellant to be put in fear or reasonable apprehension of impending contact by a respondent.
The appellant Dawson had been assaulted by the respondents

C C Wheeler and Wilson on 24 January 1999, entitling her to damages of $2,500. 4. The appellant Gross had been assaulted by the respondent Calvert, entitling her to damages of $1,000. 5. The conduct of the loggers, particularly in running chainsaws and generators close to the appellants' camp and beating drums, was intended to deprive the appellants of sleep and to alarm and frighten the appellants. 6. As a result of such conduct on the part of the respondents CFMEU, Calvert, C C Wheeler, Molloy, Nocera, Dent, Pearce, Sheppard, Wilson, McGee, Nemet and Flannigan, the appellant Jackson suffered PTSD which entitled her to damages of $30,000, including aggravated damages of $10,000, pursuant to the rule in Wilkinson v Downton. 7. As a result of such conduct on the part of the respondents CFMEU, Calvert, C C Wheeler, Molloy, Nocera, Dent, Pearce, Sheppard, Wilson, McGee, Nemet and Flannigan, the appellant Lees suffered PTSD entitling her to damages of $30,000, including aggravated damages of $10,000 pursuant to the rule in Wilkinson v Downton. 8. As a result of such conduct on the part of the respondents CFMEU, Calvert, C C Wheeler, Molloy, Nocera, Dent, Pearce, Sheppard, Wilson, McGee, Nemet and Flannigan, the appellant Dawson suffered PTSD entitling her to damages of $37,500, including aggravated damages of $12,500, pursuant to the rule in Wilkinson v Downton. 9. As a result of such conduct on the part of the respondents CFMEU, Calvert, C C Wheeler, Molloy, Nocera, Dent, Pearce, Sheppard, Wilson, McGee, Nemet and Flannigan, the appellant Greig suffered PTSD entitling him to damages of $22,500, including aggravated damages of $7,500, pursuant to the rule in Wilkinson v Downton. 10. As a result of such conduct on the part of the respondents CFMEU, Calvert, C C Wheeler, Molloy, Nocera, Dent, Pearce, Sheppard, Wilson, McGee, Nemet and Flannigan, the appellant Colson suffered migraine entitling her to damages of $2,250, including aggravated damages of $750, pursuant to the rule in Wilkinson v Downton. 11. The appellants McFadzean and Dwan failed to prove that the respondents' offending behaviour caused the psychiatric condition or any of the other damage of which they complained. 12. The appellant Jackson was unreasonably denied substantial, free and uninterrupted use of SRR on 25 January 1999, causing her detriment beyond that suffered by the public at large and entitling her to damages for public nuisance against the respondents CFMEU, Calvert, C C Wheeler, Molloy, Nocera, Dent, Pearce, Sheppard, Wilson, McGee, Nemet and Flannigan in the sum of $7,500. 13. No other appellant was obstructed from walking or driving along SRR during SSP week. 14. In the circumstances, no award for exemplary damages should be made.

21 The appellants now appeal against the judgment on grounds which may be summarised as follows:

Ground 1: The judge erred in finding that the appellants had not been falsely imprisoned by the respondents, in that:
1. the finding was wrong in law; and
2. further or alternatively, the finding was against the evidence and the weight of the evidence.
Grounds 3 and 6: The judge was wrong in fact in finding that there was a 'police gate' through which the appellants could have left the SSP camp along SRR or at least wrong in finding that the 'police gate' was a reasonable means of egress.[2]
Grounds 2 and 5: The judge was wrong in fact in finding that there was a 'bush gate' through which the appellants could have left the SSP camp or at least wrong in finding that the 'bush gate' was a reasonable means of egress.[3]
Grounds 4 and 7: The judge was wrong in fact in finding that the appellants did not wish to leave the SSP camp.[4]

Ground 8: Alternatively, accepting the judge's findings of fact, the judge was wrong in law in holding that the appellants were not falsely imprisoned.
Grounds 9-11: The judge was wrong in fact in finding that no appellant other than Jackson was obstructed on 25 January 1999 from walking or driving along SRR, and hence wrong in law in holding that the appellants had not been subjected to a public nuisance.
Ground 12: The judge erred in law or alternatively in the exercise of discretion in determining not to award exemplary damages in respect of the tortious conduct which he found to have been committed against the appellants Lees,[5] Jackson,[6] Gross,[7] Greig,[8] Colson[9] and Dawson.[10]
Grounds 13 and 14: The judge erred in law or alternatively in the exercise of discretion in refusing to award the successful appellants their costs, and in ordering them to pay costs to the respondents.

22 We propose to deal first with the question of false imprisonment and as part of that with the questions of whether the judge erred in finding that there was a police gate or a bush gate which was a reasonable means of egress. We shall deal then with the question of public nuisance and as part of that with the question of whether the appellants demonstrated that they suffered any particular damage by reason of the nuisance. In the final part of these reasons we shall deal with the issues of exemplary damages and costs.

**23 The judge began his consideration of the claims of false imprisonment with a recitation of relevant legal principles. Starting from the point that false imprisonment is constituted by unlawfully subjecting another to total restraint of movement, his Honour observed that:

a) The restraint must be total, although it need not imply the use of physical force - it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion;

b) The restraint may be comprised of a threat against the person or valuable property;

c) In some cases, the restraint may exist in submission in face of a threat, even if the victim does not apprehend that s/he is being imprisoned;

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

24 The judge also considered the position of a plaintiff who, although aware of the existence of a threat, chooses to remain confined for his or her own reasons and thus in effect is uninfluenced by the threat. His Honour took the view that such a plaintiff could not succeed in a claim of false imprisonment because it would be unrealistic to say that a person who chooses to be and remain at a particular place for his or her own reasons suffers indignity, mental suffering, disgrace or the like by reason of the conduct of another of which s/he knows but which in fact is irrelevant to him or her being and remaining where s/he is.[11]

25 The judge turned next to a detailed consideration of the evidence and on the basis of that made the following findings of fact:

a) The picket was established on SRR on the afternoon of 25 January 1999 by the respondents acting in concert and it remained there until the morning of 29 January 1999.[12]

b) From the afternoon of 25 January 1999, it was the respondent, Calvert's, position, to be attributed in effect to the other respondents, that a protester would not be permitted to leave along the SRR unless either the protester gave a personal commitment not to protest in the Otways for the remainder of the summer or OREN entered into such a no-protest agreement.[13]

c) The picket was an 'act of persuasion'[14] in that what Calvert said to the appellants was apt to create the impression that the picket was a true barrier to egress by protesters along the SRR[15] and the respondents' actions on the afternoon of 25 January 1999 did indeed cause 'particular protesters' to believe that the respondents would not allow them to leave along the SRR.[16]

d) There was a 'police gate' out of the picket, in the sense that if any appellants had asked the police to be allowed to leave along the SRR, the police would have intervened to enable them to do so.[17] But the appellants found it unpalatable to ask the police for assistance[18] and the judge was not persuaded that any of the appellants [with the exception of McFadzean and Jackson on 28 January 1999] did in fact ask the police for assistance to get out.[19]

e) There was also a reasonably available means of egress by foot by one of several routes[20] overland through the bush to Turton Track[21] but, with the exception of Greig and Fowkes, who walked out that way on 26 January 1999, none of the appellants attempted that means of egress.

f) McFadzean formed the wish to leave on 28 January 1999 and was taken out in one of the respondent's vehicles.[22]

g) Jackson formed the wish to leave on 28 January 1999 and was taken out in an ambulance.[23]

h) Up to and including 26 January 1999, 'the principal reason' which activated the appellants to remain at the SSP camp was to preclude work at the SSP coupe[24] and 'their decision to stay [was] not affected by the events of 24-25 January'.[25]

i) After 26 January 1999 a range of considerations bore upon the appellants' state of mind, but it remained the wish of each of the protesters to remain at SSP.

26 His Honour thus concluded that [with the exception of Jackson and Lees] 'no plaintiff had established that he or she was falsely imprisoned during SSP week' 'at least because there were two means of egress available and[26] neither of them was unreasonable from the perspective of any plaintiff. There was a police gate and there was travel through the bush'.**

**27 The appellants attack the judge's conclusion that there was a 'police gate' on two bases. They submit that it was not open to his Honour to treat the notion of a police gate as a defence to the claim of false imprisonment - because the respondents did not plead that a police gate was an available means of escape; the concept of a police gate was not clearly identified in evidence; and it was not put to the appellants that they could have escaped through the police gate. Alternatively, the appellants say that, if it were open to the judge to consider the issue of the police gate, his Honour's finding that the police gate was a reasonable means of egress was against the evidence and the weight of the evidence.

28 We see no merit in the first point. It is plain that the question of the police gate was one of the central issues in the case and that both sides conducted their cases at trial on that basis. By their statement of claim the appellants alleged that the actions of the respondents denied the appellants their liberty, and by their defence the respondents denied that the appellants were thereby falsely imprisoned and averred that the appellants were 'not prevented by the Defendants from leaving the area of the intersection'.[27] During the trial counsel for the appellants led evidence about conversations between the appellants and the police (on the basis that it supported the appellants' contention that 'they were not free to leave, it is evidence of a relevant fact')[28] and the appellants were cross-examined about their conversations with the police without objection to relevance.[29] Correspondingly, counsel for the respondents opened the respondents' case before the judge on the basis that the protesters were told that they could avail themselves of whatever means of egress they wished, but not through the picket and in response to a question from the judge, counsel for the respondents agreed that the respondents contended that:**

... there wasn't imprisonment in fact, and one way you can realise it's not imprisonment in fact is if these people had wanted to go out, the police would have facilitated it. So the issue of what the police were prepared to do is an issue between the parties, because you want to rely upon it to show that the imprisonment was incomplete...

**29 As to the second point, counsel for the appellants put two arguments. He submitted that, assuming the judge's findings of fact on the point were correct, as a matter of law the existence of the police gate did not make the appellants' restriction to SSP any the less a false imprisonment. Alternatively, he contended that, assuming as a matter of law that the existence of a police gate could prevent the detention of an appellant amounting to a false imprisonment, it was not open on the evidence to conclude that there was in fact a police gate of that kind.

30 The first argument faces the difficulty that it was not presented before the judge below. Apparently, both sides assumed that a police gate was capable at law of providing a defence to false imprisonment. The issue for the judge was thus confined to whether as a matter of fact there was a police gate. But it is not suggested that there would be any prejudice to the respondents in allowing the matter to be considered for the first time on appeal. We propose therefore to do so.

31 We start with basic principles. First, we agree in substance with his Honour's statement of the law.[30] The conduct with which the law of false imprisonment is concerned must be of a coercive character and amount to a total restraint. Accordingly, the question of whether a defendant's conduct has influenced a plaintiff's action will not necessarily determine whether the plaintiff has been detained against his or her will. In some circumstances, false imprisonment may be made out even though the conduct of the defendant has not had any influence upon the plaintiff's course of action. Neither is the converse always the case. The fact that the defendant's conduct may have influenced the plaintiff will not always lead to the conclusion that there has been an involuntary submission by the plaintiff to the defendant's restraint.

32 In Blackstone's Commentaries on the Laws of England the discussion of the crime of false imprisonment commences with the observation:**

We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment..." Every unlawful restraint on the liberty of a person by confining him in custody is a false imprisonment and a common law crime.[31]

**33 False imprisonment was later described in 'Termes de la Ley' as where a party 'hath not his liberty freely to go at all times to all places wither he will'.[32] Sir James FitzJames Stephen's A Digest of the Criminal Law treated false imprisonment as a category of assault as '(c) the act of depriving another of his liberty ... without the consent of the person assaulted or with such consent if it is obtained by fraud.'[33]

34 In Street's, Foundations of Legal Liability, the concept is discussed in these terms:**

Accordingly it has long been settled that actual physical constraint, or physical contact, is not necessary to make an imprisonment. Coercion of any kind, as where the person imprisoned yields without resistance to superior force or to authority, is enough. But some form of coercion is essential. One who is prevailed upon by false representations to go and remain at a particular place is not imprisoned, unless, perchance, force or intimidation be used to prevent departure. The tort of imprisonment is so far predicated upon restraint of personal freedom that one cannot be held liable therefore unless it affirmatively appears that detention was contrary to the will of the person alleged to be imprisoned.[34]

**35 There are statements in some of the older authorities, mainly in the nineteenth century, to the effect that every false imprisonment connotes an assault.[35] In Macpherson v Brown,[36] however, Bray CJ concluded that the weight of modern authority favours the view that false imprisonment and assault are two distinct crimes despite the existence of those older decisions.[37] Thus a plaintiff who yields to the threat of force to avoid the necessity of actual force may also have an action for false imprisonment.[38] Where, however, there is no application of force, there must be evidence of complete submission by the person alleging imprisonment to the control of the other party. Thus, as Murray CJ said in Symes v Mahon,[39] there will be no false imprisonment if there is only partial obstruction of the will, whatever inconvenience it may bring, if the means of escape was available.[40]

36 In R v Garrett[41] it was held that the victim was falsely imprisoned in circumstances where he did not wish to leave because of his fear for the safety of another person. King CJ found:**

Restraint of liberty is put upon a person not only by actual physical restraint, but also by threats to that person or threats to another. Gray was threatened with a knife and required to remain in the kitchen. He is not less under restraint because he made no attempt to escape. The fact that he was unwilling to attempt escape because of his unwillingness to abandon Miss Fuller does not imply consent to the restraint which was put upon him. The unlawful threats which the appellant made to Miss Fuller, no less than the unlawful threats which he made to Gray, operated to deprive Gray of his liberty of movement. In my opinion the whole of the circumstances which the appellant created with the intention of imprisoning Gray and Miss Fuller must be looked at and when that is done it is apparent that Gray was unwilling to be confined to the kitchen and remained there only because of the threats made to him and Miss Fuller. He was therefore imprisoned without his consent and this ground of appeal fails.[42]

As a proposition of law, I do not think there is any arbitrary rule that the threat which causes the person to submit to confinement against his will must be a threat of physical force to this person. The will of a person may be at least as effectively overborne by threats of physical force to other people or even by threats of damage to valuable personal property. In my view, it is sufficient that the defendant restrains the liberty of a person against his will by threats of immediate physical force to the safety of another person or by other immediate intimidating conduct intended to bring about that result. There is support for this conclusion in the American jurisdictions: see Second Restatement of Torts, paras 40A and 43; Prosser and Keeton on Torts (5th ed) pp 49-50. On the other hand, I consider the appellant is correct in the submission that there can be no false imprisonment if the alleged victim agrees to go or to remain in a particular area nominated by the defendant of his own free will and not out of submission to a threat. I[t] may, however, be difficult to determine as a matter of fact, whether a person submits to a restriction of liberty against his will or of his own free choice.[43]

**37 The American Restatement of the tort of false imprisonment requires a plaintiff to establish that s/he did not consent to the confinement.[44] The restraint must be upon another's liberty to come and go and must be against his or her will.[45] Voluntary consent to confinement does not constitute false imprisonment. The tort inheres in restraint against the plaintiff's will, whereby the plaintiff yields to the constraint of a threat, express or implied or through physical force.[46] It has sometimes been described as the essence of false imprisonment that it be the 'unconsented restraint by one person of the physical liberty of another.' The submission by the prisoner must be in response to duress sufficient to make the consent given ineffective to bar the action.[47] 'It is essential that the restraint be against the plaintiff's will; and if he agrees of his own free choice to surrender his freedom of motion or to accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment.'[48] There is, however, Canadian authority that it will be imprisonment '... if the plaintiff goes along with another ... in order to avoid a scene which would be embarrassing.'[49]

38 A passage from the frequently cited judgment of Atkin LJ in Meering v Grahame-White Aviation Co Ltd[50] sets out a variety of circumstances in which a person could be imprisoned without knowing it.[51] More recently, decisions such as Go v The Queen[52] and R v Awang[53] have recognised that there may be an unlawful detention of personal liberty at common law where 'consent is vitiated by fraud or lack of capacity or lack of knowledge.'[54] Each of those cases, however, proceeds on the implicit assumption that the restraint of liberty would have been against the will of the victim if the victim had known of the restraint and had capacity to object.

39 The decisions in, Macpherson,[55] Go[56] and Awang[57] were followed in JCS v The Queen.[58] In that case the New South Wales Court of Criminal Appeal held that an indictment on a count of false imprisonment was not rendered defective by omission of the words 'detained her against her will'.[59] The court reasoned that the essential element of the offence of unlawful imprisonment is the restraint of liberty and that it is not essential to prove that the restraint was against a person's will.[60] But once again, as in Go and Awang, it was implicit in JCS that, in order to be actionable, the restraint of liberty must be without the victim's consent.

40 On one view of the matter, the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust; Ex parte L[61] throws doubt on the idea that a person may be falsely imprisoned without knowing about it. In that case the respondent, who was autistic and profoundly mentally retarded, and therefore incapable of choice as to the environment in which he lived, was alleged to have been falsely imprisoned by the mental health authority. In the Court of Appeal, Lord Woolf MR, citing the judgment of Atkin LJ in Meering,[62] treated the question of whether a person was detained as a question of objective fact which did not depend upon the presence or absence of consent or knowledge.[63] His Lordship considered that a person is detained in law 'if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving.'[64] The Court of Appeal thus rejected the conclusion of the trial judge that the respondent was 'free to leave'; reasoning instead that if had he attempted to do so, he would have been restrained.[65] On appeal to the House of Lords, however, the majority concluded that the respondent had not in fact been detained, since he had made no attempt to leave and had been accommodated in an unlocked ward and, therefore, that it could not be said that he had actually been deprived of his liberty. Lord Goff of Chieveley, who delivered the principal speech, based his reasoning on the requirement that for the tort of false imprisonment to be committed there must in fact be a complete deprivation of, or restraint upon the plaintiff's liberty, and on the judgment of Lord Macnaghten in Syed Mahamad Yusef-Ud-Din v Secretary of State for India in Council[66] that the deprivation of liberty must be actual rather than potential. His Lordship continued:**

And in the Meering case [at] 54-55 Atkin LJ was careful to draw a distinction between restraint upon the plaintiff's liberty which is conditional upon his seeking to exercise his freedom (which would not amount to false imprisonment), and an actual restraint upon his liberty, as where the defendant decided to restrain the plaintiff within a room and placed a policeman outside the door to stop him leaving (which would amount to false imprisonment).[67]

The majority view appears therefore to support the conclusion that there will be no false imprisonment if a person, aware of the potential for restraint, does not seek to exercise his or her right to freedom of movement. But Lord Nolan and Lord Steyn dissented from that conclusion; Lord Steyn referring to Meering and other cases where false imprisonment was found in circumstances where the person lacked the capacity to grant or refuse consent to their detention.[68]

**41 Be all that as it may, however, it remains that the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will.[69] Accordingly, where a plaintiff has full knowledge and comprehension of the defendant's coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant's conduct, the plaintiff would not have submitted to the restraint. Consequently, it is not sufficient in law that conduct of the defendant have contributed to or influenced the plaintiff's decision to remain unless the conduct has overborne the plaintiff's will. It must be shown that, but for the defendant's conduct, the plaintiff would not have yielded to the total restraint; that the plaintiffs' determination to remain was a coercive consequence of the defendant's acts.[70]

42 Secondly, as the judge observed, although the idea of false imprisonment is sometimes expressed in terms of a restriction on liberty which must be total, that does not mean that a restriction short of lock and key may not be actionable. In each case, it is a question of fact as to whether a restriction is so severe as to be characterised as false imprisonment. For example, if a victim is confined to an island, and the only means of egress is by swimming through dangerous waters to the mainland, there is no reasonable means of egress and the victim's confinement to the island is likely to amount to false imprisonment. If, however, there is a reasonable means of egress or escape from detention, the restriction may not be enough. So, if a victim is confined to a room, and there is a reasonable means of egress through a door, the victim is in effect free to leave the room and there is no false imprisonment.

43 Thirdly, where there is a reasonable means of egress, it appears to us that it does not matter that the victim may not make use of it. So long as there is a reasonable means of egress, there can be no imprisonment. Conversely, if the only means of egress is not reasonable, the false imprisonment will not come to an end unless and until the victim does make use of it. In short, so long as a victim remains confined without a reasonable means of escape, he or she will be falsely imprisoned.

44 Fourthly, and consequently, where there is a reasonable means of egress, but the victim hesitates before making use of it, the period of hesitation will not count as a period of false imprisonment.

45 Fifthly and conversely, we take the view that, where there is not a reasonable means of egress, and the victim hesitates before effecting an escape via an unreasonable means of escape, the period of hesitation would count as a period of false imprisonment. We do not consider that an intentional tortfeasor should be heard to defend or plead in mitigation of a charge of false imprisonment that a more courageous victim may have escaped via an unreasonable means of escape or so escaped more quickly than the victim did in fact.

46 Turning then to the notion of a police gate, if a victim is confined without physical means of egress, the victim may be able to call for police assistance. If the police answer the call and procure the victim's release, the imprisonment will come to an end. But, obviously, the false imprisonment will have lasted until the release is effected. So, therefore, it appears to us that the ability to call police to intervene in an unlawful false imprisonment is not to be equated to a reasonable means of egress.

47 What then of a victim who is detained without physical means of egress, who is in a position to call police, but who out of a sense of embarrassment or fear of an adverse police reaction, or for some other reason, decides not to call? In our view, the answer is the same. Logic and common sense suggest that, just as an intentional wrongdoer should not be heard to defend a claim of false imprisonment on the basis that a more courageous victim might have escaped by an unreasonable means of escape, a wrongdoer should not be heard to defend a claim of false imprisonment on the basis that a more sanguine victim would have called the police.[71] The victim is without reasonable means of egress and so, until and unless the victim is released, the victim is falsely imprisoned.

48 It may be that the availability of police assistance would bear on the amount of damages recoverable for false imprisonment. A victim who could have obtained police assistance, but chose not to do so, might be awarded less than a victim who was unable to contact police or who police refused to assist. There might also be some reduction in damages in the case of a victim who delayed in making the call. But each case depends on its facts and a tortfeasor must take the victim as found. So, therefore, if a victim were sufficiently affected by embarrassment or timorousness or hysteria as to be deterred from seeking police assistance, or to delay in making the call, there might be no reduction in damages. Moreover, and regardless of any reduction in damages, there would still be false imprisonment and it would still continue so long as the victim was confined against his or her will.

49 So then to this case. Assuming for present purposes that the effect of the picket was to confine the appellants against their will, without reasonable physical means of egress, it would follow that the appellants were falsely imprisoned. In that event, in our opinion, neither the fact that the appellants might have summoned police assistance, nor the possibility that the police, if asked, might have procured their release, would have lessened the fact of the false imprisonment. Nor would it have altered the fact of the false imprisonment that the appellants chose not to ask for police assistance. In the circumstances postulated, the appellants would have been falsely imprisoned until and unless released and the only likely variable would have been the amount of recoverable damages.

50 In the result, we are unable to agree with the judge's conclusion that the existence of a police gate would have been an answer in itself to the claims of false imprisonment. In our view, it would not have been. But for reasons to which we shall come, we do not think that it makes any difference to the outcome of the appeal.**

**51 We turn next to the question of the bush gate. Under Ground 5, the appellants complain that it was not permissible for the judge to take the possibility of bush egress into account - because it was not pleaded; not opened; not put to the appellants; and not otherwise treated as being in issue in the trial. Alternatively, under Ground 2, the appellants contend that, if it were permissible for the judge to take the matter of bush egress into account, it was not open on the evidence to conclude that passage through the bush was a reasonable means of egress.

52 We see no merit in the suggestion that the bush gate was not pleaded. By their defence the respondents denied the appellants' allegation of false imprisonment and averred that the appellants were 'not prevented by the Defendants from leaving the area of the intersection'.[72] Consequently, the appellants bore the onus of proving that they were prevented from leaving the area of the intersection, and to that end they called a considerable volume of evidence as to just how difficult it was to walk out through the bush. Equally, when counsel for the respondents opened the respondents' case before the judge, he did so on the basis that the evidence would show that the protesters were told that they could avail themselves of whatever means of egress they wished, but not through the picket, and that the protesters were encouraged to walk through the bush to leave the area.[73]

53 In our view, there is also nothing in the point that it was not put to the appellants that they could have got out through the 'bush gate'. As the trial transcript shows, counsel for the appellant asked several of the appellants in chief whether they had considered leaving through the bush.[74] Additionally, appellants who left through the bush gave evidence in chief about their journeys.[75] Others were cross-examined about leaving through the bush[76] or were examined about their ability to leave through the bush.[77] A number of the appellants gave evidence in chief as to their age, level of fitness, sex, apparel and items which they carried as they undertook journeys through the bush. In many cases they were subjected to cross-examination on those matters and on the various routes that they took. There was no objection raised to any of that cross-examination, no doubt because the subject of the evidence was regarded as being in issue.

54 That leaves the question of whether egress through the bush gate was reasonable.

55 The authorities reveal that there are four factors to be considered in determining whether a means of egress is reasonable. They are: threat or danger to the self; threat or danger to property (including property of others); distance and time; and legality.

56 What constitutes a threat or danger to self varies with the circumstances of the case. Thus, for example, in The Balmain New Ferry Company v Robertson,[78] the plaintiff, having paid a ferry fare, did not wish to wait for a ferry but refused to pay a further amount to leave the ferry dock. As a result, the plaintiff was constrained by the ferry terminals' turnstiles. Griffith CJ, in considering the justification of the employees of the ferry company in restraining the plaintiff, reasoned that there was no imprisonment because the plaintiff would be free to leave the premises by water.[79]

57 In R v Macquarrie and Budge,[80] the defendant set the victim afloat at full speed on a boat that he did not know how to steer. It was argued that the victim enjoyed a means of escape in that he might have jumped overboard. The argument was rejected. Although the term or expression was not used as such, the case is often cited for a proposition that means of escape must be 'reasonable'.[81]

58 In Burton v Davies and General Accident Fire and Life Assurance Corporation Limited,[82] the defendant drove so quickly as to prevent the victim alighting from his vehicle. Townley J stated:[83]**

This cause of action is founded upon his detaining her in his motor truck without her consent, not by actual physical force, but by driving at such a speed as to prevent her from alighting. I am of the opinion that such conduct upon the defendant's part amounted to the wrong of false imprisonment. If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to jump from the window.

Burton thus stands for the proposition that the means of escape must be without danger to the plaintiff.

**59 In R v Garrett[84] the defendant coerced the victim by holding a knife to the throat of a third party. The Court held that, although no threats were made to the liberty of the victim per se, the threat to the safety of the third party was enough to constitute the requisite captivity.[85] Rather than concerning the concept of egress, R v Garrett stands for the proposition that the requisite confinement of a victim may occur by means other than physical restraint - in this case by overbearing the victim's will through threats to the safety of a third party[86] - but obviously the two considerations are closely related.

60 Some of the authorities suggest that there needs to be a serious, perhaps even life threatening, element to the means of escape before it will be deemed unreasonable. Whittaker v Sanford[87] (in which jumping from a speeding car was deemed unreasonable) is one example; the approach in Macquarie and Budge[88] is another. But circumstances will vary. Swimming away from a ferry jetty is reasonable;[89] swimming away from a speeding boat is unreasonable;[90] and jumping from a speeding car or truck is unreasonable.[91] United States' authority articulates the test that the threat of force or danger to which the plaintiff submits must be 'reasonably perceived', requiring both an objective and subjective element.[92]

61 Threat or danger to property or the property of others is an equally protean conception. One United States authority serves to demonstrate the point. In Ashland Dry Goods v Wages[93] a woman was suspected by a shop assistant to have engaged in shoplifting. Store security took the woman's purse and refused to return it until an investigation was conducted. The woman was free to leave - but only without her purse. It was held that, given the woman knew she was innocent and feared that something could be planted in her purse, she was effectively imprisoned.[94]

62 The notion of 'illegality' is, in this context, also variable. There is authority that egress may be reasonable even if it requires a plaintiff to commit a minor trespass.[95]

63 In this case, there was evidence of a threat and danger to the appellants and to their property and the property of others, through the incidents of vandalism to cars and tents at the protest site. The appellants were free to leave but only if they walked out and did not return. There was evidence that rocks and stones had been thrown at vehicles and tents, as well as attempts being made to remove pegs or kick down tents.[96] There was evidence, too, that some of the protestors feared damage to property if they left it unattended.

64 But following a thorough analysis of the evidence, the judge concluded that such an apprehension, if truly held, was ill-founded. Some of the events said to lead to the apprehension (such as the rock throwing and tent tampering) were conducted only to inconvenience or annoy the protestors. Had they left, the acts would have ceased.[97] Furthermore, the judge concluded that if the protestors had left, it was 'highly likely that a police presence would have been maintained'[98] and the property would have been secure.

65 With respect, we agree with that finding. The case of Ashland Dry Goods[99] mentioned above is distinguishable on that basis.

66 There is not a great deal of authority or commentary on how distance and time may affect the reasonableness of egress. It is clear enough, however, that unreasonableness in this context means more than mere inconvenience and that it depends on all the circumstances of the case. So, for example, in The Balmain Ferry case, it was apparently thought to be reasonable for the plaintiff to have to swim from Circular Quay to the shore. But presumably that depended upon the physical condition of the plaintiff.

67 Contrast the possibility of submitting an individual to a requirement to run on a treadmill for two hours in order to cause a locked door to open. Presumably, it would be unreasonable if the individual were elderly, unfit and asthmatic. But it might not be unreasonable if s/he were younger, fitter and otherwise healthy. It might also depend on the pace at which the treadmill was set.

68 To take a further example, if a person were required to escape from a locked room by crawling through an air conditioning vent for two hours, it might not be unreasonable in some circumstances, but it could be if the person suffered from claustrophobia.

69 As has been seen, the principal way in which the appellants put their case in false imprisonment was to say that egress through the bush was unreasonable because the traverse through the bush was too demanding. The judge assessed that question of unreasonableness in four ways: first, by assessing the physical health and fitness of the appellants;[100] secondly, by considering the clothing and footwear worn by the appellants during SSP week; thirdly, by assessing the terrain to be traversed; and fourthly, by considering the experience of those protestors who walked through the bush, generally, and from SSP to Turton Track, in particular, during SSP week. It is convenient for us to do the same.

70 The judge's findings on physical health and fitness maybe summarised as establishing that each of Fowkes, Greig, Jaskierniak, Douglas, Molloy, Jackson, Dwan, Lees, McFadzean, Dawson, Bowles, Colson and Epstein enjoyed varying degrees of fitness, but none such as to preclude them from walking through the bush.

71 His Honour considered in detail the suffering by Dawson of a foot ulcer[101] but determined on the basis of her conduct and demeanour during and immediately after SSP week that the ulcer did not preclude her from journeying through the bush to Turton Track. The judge acknowledged that Bowles was an asthmatic but it is to be inferred from his Honour's analysis that he did not view Bowles' condition as precluding his escape through the bush.[102] Colson was said to have weak ankles but, as his Honour found, not so weak as to impair her movement through the bush.[103] Epstein expressed various fears about the bush journey but again nothing which the judge considered enough to preclude completion of the bush journey.[104]

72 As to the second matter of clothing, the judge examined the varying states of clothing and footwear of the appellants: some wore long trousers - Fowkes, Douglas, Jackson, Dwan, Lees, McFadzean, Bowles, Epstein, Forrester and Sarah Gross; others wore shorts - Molloy; some wore shoes or boots - Fowkes, Molloy, Dwan, Lees, McFadzean, Dawson, Epstein, Forrester and Sarah Gross; others wore sandals - Jaskierniak and Jackson, while Bowles was bare footed. As a result of that process, it emerged that Jackson was the only appellant about whose clothing and footwear the judge had any doubt.[105] Even then, after comparing her footwear with that of Jaskierniak, the judge was not persuaded that it was a problem.

73 As to the terrain to be traversed, it was common ground that the distance between the SSP Track and Turton Track travelling via SRR, a public gravel road, was about one kilometre but less than 1.5 kilometres. The distance from the intersection of SRR and Turton Track to Apollo Bay was over 12.5 kilometres; the distance from that intersection to Beech Forest was 7 kilometres. The evidence also established that there was a strip of relatively flat land running parallel to and east of SRR north of SSP Track. To the east of that strip there was a sharp fall to the east. The terrain dropped steeply into a gully close to SRR and involved varying vertical drops of 10 metres, over 20 metres and 50 metres. Stepping off SSP Track the terrain fell away to the north before rising at the approach to Turton Track.

74 That leads to the judge's consideration of the experiences of a number of the protestors traversing the bush generally and between SSP and Turton Track during SSP week and, in particular, their perceptions of the difficulty of the journey.

75 The largest group of those witnesses were protestors who made journeys through the bush during SSP week without reported difficulty and without being detected by loggers:**

Kennerson and Donato on Tuesday made a journey for about one kilometre through the bush to the north of SSP track parallel to SRR; they then journeyed back together;

McFadzean, Kennerson and Donato on Tuesday made a journey for about one kilometre through the bush to the north of SSP track parallel to the SRR; Donato then journeyed alone through the bush back to SSP camp;

Greig, Fowkes, Douglas and Jaskierniak made a journey on Tuesday for about 1.5 kilometres from SSP camp to Turton Track;

Greig, Fowkes and Gross made a journey on Tuesday from Turton Track to SSP camp;

Dwan explored the bush on the Monday to the north of SSP track;

Dwan went into the bush during the Monday for a rest;

Dwan explored the bush on the Monday to the south of SSP track;

Dwan entered the bush to the north of SSP track on the Tuesday and met Flannigan;

Dwan entered the bush to the north of SSP track on the Tuesday to explore the area;

Dwan explored the bush on the Tuesday to the south of SSP track;

Dwan entered the bush and hid to overhear a meeting of loggers on the Thursday;

Members of the Gross party, Bill Gross, Sarah Gross and Forrester journeyed through the bush on the Thursday;

Lees, Dawson and Kenneson travelled through the coupe into the bush on the Wednesday;

Epstein and Jackson walked down SSP track on the Tuesday;

Donato entered the bush on several occasions, climbed a tree and made noises;

Kenneson entered the bush on one occasion with Donato and made hooting noises.

**76 As against that, there was evidence that the picket extended into the bush to the distance of sight and sound. Molloy also expressed fear in trying to breach the picket. But Calvert said that she had made it plain that if the appellants wished to leave they needed to leave there and then, and Calvert allowed people to leave for OREN and return to the protest camp. The purpose of the loggers' presence was doubtless to contain and intimidate the appellants. But Fowkes gave evidence of traversing the bottom of the forest, Forrester gave evidence that the conditions were dryer than expected and Dwan was uncertain as to whether the chain south of the intersection blocked SRR.

77 Greig and Dwan's evidence was that the terrain was impassable in sections (although the judge noted that Greig's evidence was internally inconsistent and inconsistent with the evidence given by Fowkes[106]). Others who walked through the bush described holding onto trees, plant stumps and bushes. Some spoke of difficulty in negotiating the surface of the terrain; it was wet and slippery, not visible in parts, holes were covered, the ground was covered in logs and wire grass and the affected appellants felt a need to tread lightly when traversing through the bush for fear of breaking a bone. They were also looking out for snakes and leeches. There was, however, clear evidence that all of those who tried got through.

78 The judge accepted that the walk was difficult and steep and involved negotiating ground that was not always visible. As his Honour observed:[107]**

It is unnecessary to examine, line by line, the evidence given by the various witnesses. The burden of the evidence was that the journey was difficult, regardless what route was taken. Forrester gave evidence which in my opinion fairly captured the nature of the walk:

It was quite difficult - it was very difficult being not on a formed track and pushing through the scrub wasn't easy. The ground wasn't altogether visible, often we were just kind of finding the way with our feet and we would have to at some points where it was steep, we would have to almost sort of hold from tree to tree, use the trees to support ourselves. We anticipated the walk might takes us - it would take about an hour. In actual fact it took twice that time.

79 The judge, however, was not persuaded that the route was really too demanding for any of the protestors. Indeed, he found on the evidence before him that it would not have taken more than two hours:

Allowing for all the variables, however, it seems very likely to me that the journey should not have occupied in excess of two hours. That was the approximate period which it took the Gross party to make the journey. Theirs was not a journey by direct route. It was a journey made by people of varying ages and of both sexes, people of varying degrees of physical fitness, people wearing backpacks.[108]

As his Honour observed, that view of the matter was confirmed by the evidence given by Molloy:

Molloy's evidence, relevantly, is also compatible with my conclusion that the journey should not have taken more than two hours. His outward trip was made parallel to and not far from SRR. He was then driven east along Turton Track and walked "down through the gully, across the creek, and up onto" SSP Coupe then back to SRR. He marked a map with the journeys that he took. On his account he left at maybe 9 - 10am and was back shortly after lunchtime. His journeys probably occupied less than four hours, that including time spent fossicking about and on Turton Track. He estimated that the walk out to Turton Track took about 50 minutes. Such estimate may well have been accurate. The journeys which Molloy made, were, as I said earlier, made by a fit man with bush knowledge.[109]

80 In the result, the judge concluded, on the basis of his analysis of the evidence of age, physical condition, clothing and footwear and terrain, that for none of the appellants was the bush from SPP track to Turton Track an unreasonable means of egress:[110]

Given the evidence which I have reviewed, and the conclusions which I have already expressed, I am positively persuaded, considering the circumstances of the individual plaintiffs, that for none of them was a journey through the bush from SSP to Turton Track an unreasonable means of egress. It was not unreasonable, I consider, in terms of time, difficulty, or risk to life or limb. The evidence of what was in fact done by people of different ages, of both sexes, of differing levels of fitness and bush knowledge, without any of them suffering anything but the most minor injury, is highly persuasive.

**81 With respect, we agree with his Honour's conclusions. Although the four factors of threat or danger to self, threat or danger to property or the property of others, distance and time and legality are issues that arise in the circumstances of the present case, and are to be considered individually as to their impact, the combined effect is the real point of the exercise. It is important to keep in view the ultimate concern of the tort of false imprisonment, namely, protection against the unlawful total restraint on the liberty and freedom of movement of the plaintiff.[111] In the end, it is a matter of degree in all the prevailing circumstances.[112]

82 As has been seen, the judge carefully considered those matters in his overview and analysis of the experiences of those who left the campsite from time to time.[113] In making that assessment, his Honour had the advantage of observing the witnesses' delivery of their testimony and, importantly, the conduct of a view in order to better comprehend the evidence. In a case such as this, where credit was very much in issue and the nature of the terrain and the local geography were pivotal, the advantage of observation to the trial judge above the clinical and intellectual critique of this court cannot be understated.[114] But that said, we have closely considered the evidence ourselves and are satisfied of the rectitude of his Honour's conclusions.

83 For some people perhaps, it might not be reasonable to expect that they make use of the bush gate. The evidence of those who walked through the bush as to the necessity to hold on, the difficulty of the terrain and its condition, the lack of visibility of holes and the fear of bone breakages, together with the need to lookout for snakes and leeches, suggest that the experience may have been for some both difficult and unpleasant. But the judge was not concerned with just some people. His task was to assess the reasonableness of egress through the bush gate for this group of plaintiffs who it appeared were not unfamiliar with a bush environment and who had chosen to remain in this area of bush as their stamping ground for a protest about logging. We are not persuaded, in the circumstances of this case, that the evidence called for the conclusion that the bush gate for such people should be regarded as an unreasonable means of egress.

84 The appellants argue that, even if the bush track were a reasonable means of egress for some of SSP week, the judge found that it was not reasonable means of egress during the hours of darkness or during inclement weather on the afternoon of Thursday 28 January 1999. It follows, they contend, that the appellants were falsely imprisoned at those times even if not at any other time during the week.

85 We do not agree. As has been seen, false imprisonment is the complete deprivation of liberty although, as we have said, something short of confinement under lock and key may constitute false imprisonment. All that may be required is that the victim be constrained to remain at the will of the wrongdoer.[115] But a mere partial interference with freedom to travel by one route as opposed to another does not compel a person to remain. He or she is free to leave by the other route. Hence as Patterson J put it in Bird v Jones:[116]**

... I cannot bring my mind to the conclusion that, if one man merely obstructs the passage of another in a particular direction, whether by threat of personal violence or otherwise, leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby to imprison him. He does him wrong undoubtedly, if there was right to pass in that direction, and would be liable to an action on the case for obstructing the passage, or of assault, if, on the party persisting in going in that direction, he touched his person, or so threatened him as to amount to an assault. But imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.

**86 In this case, as the judge found, the appellants were free to leave the SSP camp via the bush track, and for most of the time that the appellants remained at the SSP camp the bush track was a reasonable means of egress. Accordingly, there was no complete deprivation of their liberty. The appellants were not compelled to go in a given direction against their will. All that occurred was that they were prevented leaving via SRR. Otherwise, they were at liberty to stay where they were or to go as they pleased.

87 It is true that it may not have been safe or reasonable to travel through the bush during inclement weather or at night. But that does not mean that they were imprisoned at those times. Prudence may have dictated that they not make a start until it was light and the weather was clear. But that was up to them. If they missed an opportunity to leave when it was light and clear, they would have to wait for the next such opportunity. But in effect that meant no more than that if they wished to leave at some times as opposed to others, they might be delayed.

88 There may be situations where refusal to allow a person to pass along a particular road or way would be seen as equivalent to overbearing the will of the person. To revert to an example to which we have already referred, if a person were trapped on an island and denied egress over the only bridge to the mainland, the restraint upon his or her liberty might amount to a false imprisonment. But in most situations a refusal to allow a person to pass along a particular road or way is not to be conceived of as amounting to false imprisonment. Such a person may be forced to take another route and thereby suffer some inconvenience, perhaps even substantial inconvenience. But the effect upon liberty, as opposed convenience, would be in most cases de minimis.[117]

89 Presumably, as one moves through the range of possible circumstances from those which clearly do not constitute false imprisonment to those which do, there will come a point at which views may reasonably differ. Some may see the restriction on liberty involved at that point as amounting to false imprisonment, others will take the contrary view. But in this case, as the judge found, the availability of egress through the bush meant that the facts fell well short of such a restriction. And in our view his Honour is not shown to have been in error in coming to that conclusion. For these reasons we see no merit in grounds 1(a) and (b) or 8.**

**90 Under Ground 7 the appellants contend that it was not open to the judge to find that the appellants wished to remain at the campsite until the morning of 29 January 1999 - because it was not pleaded that the appellants voluntarily entered the intersection and remained there despite being invited to leave; and because the invitation to leave was confined to the afternoon of Monday 25 January 1999.

91 We reject that contention. The respondents pleaded in their defence that the appellants were not imprisoned, that they were not prevented from leaving the area of the intersection and that they were not deprived of their liberty.[118] They also averred that the appellants voluntarily entered the area for the purpose of engaging in interference activities and the respondents gave as one of the particulars of that allegation that the appellants established a blockade in the form of a camp. Consistently with the pleadings, counsel for the respondents opened the respondents' case before the judge on the basis that the respondents denied wrongful imprisonment and counsel referred to the presence of police, offers of being permitted to leave which were said to have been made to the appellants by the police and offers of being permitted to leave which were said to have been made to the plaintiffs by Calvert. The respondents also interrogated Greig and he was cross-examined to the effect that, if he had wanted to leave, he had merely to ask the police to facilitate his departure. In addition, the appellants gave extensive evidence in chief and were cross-examined as to what was said to be the difficulties of leaving by the bush. And, finally, in closing addresses, counsel for the respondents submitted that on the evidence the claim in false imprisonment failed because, among other reasons, at least some of the appellants did not wish to leave the area and that McFadzean and possibly others caused the remainder of the appellants to remain.

92 Under Ground 4 it is contended that, if it were open to consider the question, it was not open on the evidence to find that the appellants did not wish to leave the SSP camp until the morning of 29 January 1999. We also reject that contention.

93 The judge decided against false imprisonment on the basis that there were two reasonable means of egress. As his Honour put it:**

No plaintiff has established that he or she was falsely imprisoned during SSP week. Why that is so is substantially explained by conclusions which I have already expressed. There was no false imprisonment at least because there were two means of egress available and neither of them, subject to what follows, was unreasonable from the perspective of any plaintiff. There was a police gate and there was travel through the bush. Further, no plaintiff was falsely imprisoned to the east of the camp in the late afternoon of 28 January because a means of return to the camp was available, which means was not unreasonable from the perspective of any affected plaintiff; and egress from the camp was in turn available.

Concerning a police gate, I add this to what I have already said, first, the same was accessible in the event that it had been requested. Contrary to the evidence of protesters, no request was made. In saying that, I put to one side the requests - if such they could be called - of which Dwan and Ms Dawson gave evidence.

**94 It is, however, implicit in the conclusion that there were means of egress which were not unreasonable 'from the perspective of any plaintiff' that his Honour was not persuaded that the appellants' will was overborne. That implication is borne out by the detail of his Honour's analysis.

95 The judge found that each of the appellants had decided on 25 January to stay and that their intention was to prevent logging work at the SSP coupe on that day and for an indefinite period thereafter.[119] His Honour further concluded that on 26 January the appellants' state of mind (with the possible exception of Jackson) was that they intended to remain,[120] and that subsequent to 26 January the parties as a group intended to stay until the picket was lifted. His Honour further found that although some of the appellants were subsequently disposed to leave, the collegiate spirit and the intention of the group to stay prevailed and:**

that as the week unfolded, reasons to stay accumulated and influenced the protesters to greater or lesser degree; and that in some instances the accumulation of reasons led to a protester having a personal disposition to stay until such time as the picket was lifted.[121]

**96 His Honour then listed as additional reasons to stay that the appellants would never have agreed to sign a personal no-protest agreement in return for the ability to leave long SRR; the intention of the appellants to see the incident through hardened as a result of the actions of the loggers in harassing or annoying them; the willingness of some of them to endure discomfort for what they could characterise as the greater good should not be underestimated; flight in the face of a logger majority would have been highly unpalatable to the appellants; and the appellants knew that they were being championed as the victims of logger imprisonment.[122]

97 It will be recalled that the judge concluded[123] that a person who remains at a particular place for his own reasons, knowing of but uninfluenced by the actions of another, is not falsely imprisoned, if by reason of those actions he could not leave if he chose.[124] His Honour later restated that proposition, which he described[125] as 'a template', and said:**

Further I have concluded that, as a matter of principle, there would not be imprisonment if the plaintiff wished to remain at SSP for his or her own reasons, knowing of but uninfluenced in the decision to remain by the actions of the defendants.[126]

**98 Then in the following paragraph his Honour examined how a plaintiff's choice to stay, influenced by conduct of the defendants, might explain why a means of egress that was reasonably available was not taken. He foreshadowed the relevance of possible findings that amongst a person's 'own reasons' for staying might be a wish to maintain a protest against logging in the SSP coupe, to avoid the stigma of fleeing from loggers, to assist in creating the perception that conservationists were being imprisoned by a group of lawless loggers or to protest against the 'blackmail of having to sign an agreement in any form in order to leave SSP' or a combination of one or more of those reasons.

Quite apart from what any protester may have believed was the unwillingness of the defendants to permit departure along SRR, or any influence upon protesters of what Greig and Fowkes said about leaving through the bush, the circumstances which I have mentioned pertaining to protesters' intentions give some explanation why in fact, and as distinct from what the protesters said in their evidence, the available means of egress were not availed. I do not consider, on the other hand, that it should be concluded that the protesters' intention to stay could be said to fit the template discussed at paragraphs [118] to [121] of these reasons. Even from the afternoon of 25th January, notwithstanding that the dominant considerations in forming the protesters' intentions were those which operated on the Sunday night and Monday morning, other considerations were beginning to intrude.[127]

**100 As has been observed, it is not sufficient in law that an act of a defendant may have contributed to or influenced a plaintiff's decision to remain. In order to be actionable, a defendant's conduct must have overborne the plaintiff's will. His Honour made that plain. Despite his conclusion that the appellant's state of mind did not fit 'the template', it is clear that his Honour was not persuaded that the will of any plaintiff had been overborne by any defendant's conduct or that but for the acts of restraint of the defendant which influenced a plaintiff's determination to remain, any of the plaintiffs other than Jackson wished to leave or sought to exercise their liberty to do so. His Honour did not conclude that the appellants' determination to remain was a coercive consequence of the respondents' acts[128] or was an 'involuntary submission to an implied threat of force'.[129] His conclusion that the bush gate was a reasonable means of egress bespoke the contrary view.[130]

101 Counsel for the appellants submitted that the judge's conclusion ignored or was opposed to evidence given by the appellants that they wanted to do other things during the time they were kept at SSP; that they asked the police to be allowed to leave; and that they asked Calvert to be allowed to leave, and ignored or is opposed to the facts, as the judge found them to be, that Jackson tried to leave on Monday 25 January 1999; that McFadzean tried to leave on the Tuesday 26 January 1999; that further requests were made on behalf of Jackson on the morning of Thursday 28 January 1999, and were not acted on for hours; that McFadzean was taken out on the Thursday, but not permitted to take his own car; and that McFadzean told the police later that day that the appellants did not have freedom.

102 We also reject that submission. In our view it is plain that the judge dealt with all of the evidence to which the appellants refer and his Honour gave a detailed and compelling explanation of why, despite that evidence, he came to the conclusion he did.

103 Beginning with the appellants' evidence as to what they wished to do during the period between 25 and 29 January 1999, the judge noted that:

Jackson gave evidence that she was intending to leave in order to have a family reunion which by arrangement was to be held at 5 pm that night at her parents' home. The judge added that Jackson's account was to some extent supported by the evidence of her mother

Greig gave evidence that he had been offered a job in a café at Apollo Bay and that he was to have a work trial at 3 pm on 25 January 1999.

Dwan's evidence was that he planned to return home that day to water his garden and sheep, and then visit his sick girlfriend in Apollo Bay. He said that he agreed to give Kennerson a lift to SSP Track.

Lees said that she intended to head down to Apollo Bay and to visit friends at Glen Aire that afternoon.

McFadzean said that he planned to return to Melbourne late that day or early on the Tuesday in order to go to work. McFadzean's diary also showed that he had work appointments that week. But as the judge noted, the Tuesday was a public holiday.

Dawson said that she had planned to stay in the Otways for a few days after travelling down from Melbourne with Epstein, being on her way to visit friends in Tasmania.

Fowkes said that he intended to pack up and go back to the base camp. He had no intention of remaining at SSP Track.

Epstein said that she had planned to stay in the Otways for just a couple of days and had told her parents that she would be back on the Monday. McDonald was aiming to return with her on the Monday.

Kennerson said that he went to SSP to say goodbyes. He was only going to be there briefly and then Dwan was going to drive him to Apollo Bay.

Garrett said that she was rostered to work on 26 January 1999 at a café in Apollo Bay and that on 25 January 1999 she arranged with Greig that he drive her to Apollo Bay.

At a glance

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Judgment (502 paragraphs)

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Cases Cited (20)