Plaintiffs v Defendants [2004] VSC 289 | Case summary

Plaintiffs v Defendants [2004] VSC 289 | Case summary | Zoe

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Overview

1 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.

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

3 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.

4 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").

5 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.

6 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]

7 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.

8 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".

9 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.

10 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.

11 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.

12 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.

13 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.

14 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

15 By the statement of claim the plaintiffs allege that:

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Then follow 53 particulars.

16 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.

17 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.

18 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.

19 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.

20 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.

21 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.

22 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.

23 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".

24 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.

25 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.

26 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.

27 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.

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

29 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.

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

31 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.

32 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.

33 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".

34 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.

35 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."

36 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.

37 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.

38 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]

39 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.

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

41 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.

42 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.

43 The plaintiffs' particularisation of paragraph 45 is as follows:

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

51 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.

52 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.

53 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.

54 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.

55 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.

56 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.

57 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.

58 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].

59 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.

60 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].

61 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].

62 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.

63 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.

64 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.

65 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.

66 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.

67 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.

68 I turn to the defences.

69 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.

70 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".

71 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".

72 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:

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73 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.

74 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.

75 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.

76 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".

77 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:

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79 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.

80 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.

81 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:

s 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.

s Riley's Ridge North. The logging contractor was Columbus Logging Pty Ltd. Chris Wheeler was a director and shareholder of that company.

s 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.

s Webster Hill. Here again, Columbus was the logging contractor.

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

s Garvey Track: 7, 8, 12, 17 December 1998; 30 January - 5 February 1999.

s Riley's Ridge: 11, 12, 13, 15, 19 January 1999.

s SSP: 24 - 29 January 1999.

s Webster Hill: 14 January 1999.

That is not to say that evidence was in fact adduced of such activities on each such day.

83 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.

84 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.

85 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:

s obstructing access roads to coupes;

s being present on log landings and in tree-falling areas;

s erecting and manning bipods, these structures being at times attached to logging machinery;

s use of the so-called "lock-on" device;

s deployment of a so-called "car dragon";

s clambering onto operating logging machinery whilst it was working;

s attempting to deceive, or waste the time of, officers of DNRE.

86 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

87 Fleming [25] describes false imprisonment as -

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

88 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].

89 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].

90 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].

91 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.

92 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].

93 Sixth, whether there is a false imprisonment is a question of fact [33].

94 Seventh, once imprisonment is established, it is for the defendant to prove lawful justification either at common law or by statute [34].

95 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.

96 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.

97 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.

98 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.

99 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].

100 Third, there may additionally be a recovery of damage for resultant physical injury, illness or discomfort [37].

101 Fourth, it had been said that false imprisonment is a tort which by its nature gives rise to aggravated damages [38].

102 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]

103 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 -

[50]

But it is an observation that, in my opinion, equally applies to consideration of aggravated compensatory damages.

115 Twelfth, separate awards of exemplary damages may be made against different joint tortfeasors. That is the consequence of s. 24AA Wrongs Act 1958, by analogy with the provision considered by the High Court in XL Petroleum [62].

116 Thirteenth, it remains uncertain whether separate judgments may be entered for different amounts against joint tortfeasors, reflecting different amounts attributable to aggravated damages. The issue was discussed in Myer Stores [63] and de Reus [64]. The weight of opinion - although in neither case was the opinion critical to resolution of the appeal - is that separate awards may be made. I will act upon that assumption in considering this case.

117 I go back to the question whether a person who is and remains at a particular place for his own reasons, knowing of but uninfluenced by the actions of another, is falsely imprisoned if, by reason of these actions, he could not leave if he chose. I deal with the question as one of first principle, because neither side cited any authority directly in point.

118 In my opinion there is no false imprisonment in the circumstances described. Accepting that false imprisonment does not depend upon the victim's apprehension that he or she is being imprisoned-the person who is asleep, unconscious or a lunatic is the described exemplar of that principle, likewise the person who is in a room the door of which is locked unbeknownst to him - there is a difference between on the one hand a person not knowing a situation and on the other hand taking a course of action deliberately when knowing of "imprisoning" conduct by another, and taking it independently of that conduct. In the former situation, the imprisonment has a bite - the victim does not know of the imprisonment but others may do so - hence the potential, at least, for damage to reputation; and for the victim's feelings to be hurt when he learns of the imprisonment. But in the latter situation the will of the first person has not been overborne, a consideration which underlies the proposition that voluntary compliance with a police request for a person to go to a particular place will not necessarily amount to an imprisonment.

119 Moreover, when one focuses on the harm classically associated with false imprisonment - loss of liberty, injury to feelings, damage to reputation - the second of which embraces indignity, mental suffering, disgrace and humiliation and any loss of social status - the difference between the two situations is, I think, reinforced. It is difficult to see that one can sensibly speak about loss of liberty when a person, knowing of the particular conduct of another, chooses for his own reasons to remain where he is. The situation is not akin to the case postulated by plaintiffs' counsel of a prisoner who likes being in gaol. Not deprecating legal theory, the law does address itself to real life situations. I think it is also difficult to say what damage to reputation there could be in such a case; that it is more difficult in the postulated situation than in the case of the man who is seen accompanying police voluntarily to a police station.

120 Again, what field is left open for injury to feelings in such a case? It seems to me to be unrealistic to say that a person who chooses to be and remain at a particular place for his own reasons suffers indignity, mental suffering, disgrace or the like by reason of the conduct of another of which he knows, and which is in fact irrelevant to him being and remaining where he is.

121 It may be said that the damages considerations should lead only to a conclusion that an amount of damages would be nominal, or at least small, in the postulated circumstances. But it seems to me that where the rationale for the tort, expressed in terms of the bases for an award of damages, is absent, it is the better conclusion that no wrong was committed.

Wilkinson v Downton [65]

122 There is a cause of action if a person without lawful justification wilfully does an act calculated to cause harm to another and in consequence causes physical harm, in the sense which I shall describe in a few moments, through "mental distress".

123 It is not necessary that the infliction of mental distress involving physical injury was desired by the defendant. It is enough that the defendant's aim was to frighten, terrify or alarm the victim, provided that his conduct was of a kind reasonably capable of terrifying a normal person, or was known or ought to have been known to him to be likely to terrify the plaintiff for reasons special to him. [66]

124 It is not necessary that the defendant's act be directed at the plaintiff. It is sufficient, it seems, that the plaintiff be within the range of foreseeability of risk of pertinent harm - as, for instance, one person witnessing the defendant's attack upon another [67].

125 In this cause of action, "act" includes words spoken by a defendant to a plaintiff. So, for example, Wilkinson v Downton was a case of the latter type; whilst Bunyan v Jordon was a case of a physical act [68].

126 In Australia, according to Fleming, courts have "postulated a high degree of robustness in the average citizen's reaction to the vicissitudes of life and have consistently refused 'to expose all forms of human behaviour to the arbitrary and unfettered discretion of a jury so long as some person is ready to swear that the behaviour caused him injurious fright'" [69].

127 As a further factor limiting availability of the cause of action, the plaintiff's emotional distress must have been accompanied by "objective and substantially harmful physical or psychopathological consequences, such as actual illness. Mere anguish or fright will not do". [70] Of this distinction, more later.

128 In the event that the cause of action is established, damages are recoverable in the ordinary way for the injury sustained. There is no reason in principle why aggravated compensatory damages or exemplary damages should not be awarded.

129 In his final address, counsel for the plaintiffs first submitted that each of McFadzean, Ms Lees, Ms Jackson, Dwan, Greig, and Ms Dawson had suffered physical harm in the sense comprehended in the cases in relation to their diagnosed psychiatric conditions [71]. They were the plaintiffs in respect of whom Dr Epstein gave evidence. But then counsel intimated that he also relied, conceding it was "more difficult on the cases", upon injuries which he submitted were recorded in the hospital notes. He was there referring to notes made by two nurses when the plaintiffs attended at the Otway Health & Community Public Hospital ("the Clinic") on Friday 29 January 1999. Counsel submitted that the notes showed "people being exhausted from lack of sleep", dehydration, cuts and scratches [72]. The material was limited, it was a more difficult argument for the plaintiffs, but the argument was not without precedent, and was pursued. Nonetheless, he specifically made no claim for ordinary compensatory damages in the cases of Ms Gross and Fowkes.

Public Nuisance

130 These propositions may be stated: first, speaking generally, an interference upon the free and uninterrupted use of a public road by members of the public which interference is substantial and unreasonable, may confer a cause of action for a (public) nuisance upon an affected private individual. [73]

131 Second, whether it does so will depend upon whether the private individual "can show that he incurred some 'particular' or 'special' loss over and above the ordinary inconvenience or annoyance suffered by the public at large". [74]

132 Third, according to Fleming, "there is a clear modern tendency to reject the elusive distinction between difference in kind and degree, and to allow recovery if the obstruction causes more than mere infringement of a theoretical right which the plaintiff shares with everyone else" [75].

133 Fourth, a person able to sue and injured by a nuisance may claim damages. Damages may consist of "proved general damage, for example, inconvenience and delay... provided that it is substantial, that it is direct and not consequential, and that it is appreciably greater in degree than any suffered by the general public" [76].

134 Fifth, it is probable that aggravated or exemplary damages may be awarded in an appropriate case [77].

135 Sixth, it seems apparent from paragraph 43 of the statement of claim that the plaintiffs rely upon what they claim was intended conduct on the part of the defendants and others, this producing the alleged obstruction of SRR. The question of the relationship between the torts by negligence and nuisance appears not to require analysis.

Concerted Action

136 I have already noted that it is pleaded generally against the defendants that they acted in concert with each other and with "the other loggers" in the commission of the various torts; that is, that they were joint tortfeasors. I have already noted also that paragraph 47 of the statement of claim which pleads an unlawful conspiracy between the defendants, made with the predominant purpose of injuring the plaintiffs by unlawful means, and that the actions alleged by paragraphs 5, 45 and 46 were overt acts carried out pursuant to and in furtherance of that conspiracy, was not pursued in counsel's final address for the plaintiffs. [78]

137 Save with respect to one issue concerning damages, the law with respect to joint tortfeasors is clear. Fleming [79] says that concurrent tortfeasors are regarded as joint where there is concurrence not only in the causal sequence leading to single damage, but also in some common enterprise. There must be "concerted action to a common end" [80], not mere parallel activity or "a coincidence of separate acts which by their conjoined effect caused damage". [81] Broadly speaking, says Fleming, "This means a conspiracy with all participants acting in furtherance of the wrong, though it is not necessary that they should realise they are committing a tort". [82] As to the extent of required involvement, Fleming proposes that there should be included not only the perpetrator of an act but also "anyone who 'aids and abets' whether or not he actively intervenes. Knowingly assisting, encouraging or even being present as a conspirator at the commission of the wrong would suffice". [83] Upon this point, Fleming's view coincides with that of Professor Glanville Williams [84].

138 I should refer to three other conclusions expressed by Professor Williams. Each of them appears to be unexceptional. First, mere presence will not make a person a joint tortfeasor. Second, a tortfeasor does not become a joint tortfeasor only because he knows that a similar tort is being committed by another at the same time. Third, there may be joint tortfeasors even in the case of a tort such as battery.

139 The gist of a joint tort is that "there is but one cause of action in contemplation of law". [85] The liability of joint tortfeasors is joint and several. Whilst, however, according to Fleming, liability for compensatory damages of tortfeasors sued jointly is ordinarily the same [86], authority in light of statute [87], shows that exemplary damages may be awarded against one but not other joint tortfeasors.

140 In Victoria, the issue of joint tortfeasors arose, in the context of a case of false imprisonment, in Myer Stores. It arose in two contexts. First, concerted action of the kind which I have been discussing. Second, the liability of an employer, vicariously, as a joint tortfeasor in tortious conduct engaged in jointly by its servant acting in the course of his employment. Concerning the former, nothing said differed from the principles that I have already described. As to the latter, the court held that there was a liability which arose vicariously. [88]

141 In Myer Stores there was no question concerning exemplary damages. But issues arose concerning aggravated damages. It was not in doubt that aggravated damages might be awarded. A question which arose, conceptually rather than in a practical sense, was whether:

[54]

The first defendant is CMFEU, the sixth defendant is Arbuthnot and the eleventh defendant was the man named Avery against whom the plaintiffs later discontinued their action.

146 The matters admitted by paragraphs 5(h) and 43 of the defence were definitely not of conduct alleged by the plaintiffs to constitute the various causes of action. That appears not only from the denials made by paragraphs 5 and 43 themselves, but also denial of the conduct pleaded by the statement of claim by paragraphs 5, 6, 7, 8, 10, 11, 15, 17, 19, 23, 25, 27, 28A, 28C, 30, 33, 36, 39 and 41. Note also the denial of matters pleaded by paragraphs 45, 46 and 47 of the statement of claim; and the positive assertion made by paragraph 53 of the defence.

147 Putting aside the exculpatory parts of paragraphs 5(h) and 43 of the defence, the totality of the admissions thereby made was that all but the first defendant had attended at or in the vicinity of the SSP intersection at some time or times during the week; and that some of the defendants had conducted a picket on SRR during that week.

148 Counsel for the plaintiffs relied upon the admission made by paragraph 5(h) in seeking to maintain his clients' claims against Brian Wheeler, the thirteenth defendant, and Wayne Benson, the sixteenth defendant. [93] Mr Wheeler gave evidence of attending the intersection in any event. Mr Benson did not give evidence, and there was no evidence, as distinct from the admission to which I have referred, that he was ever at or in the vicinity of the intersection between 25 and 29 January. I take the admission to mean that he was at some time present during that week.

149 Further during his closing submissions, counsel for the plaintiffs referred to and relied upon what he submitted were admissions made by counsel for the defendants in his opening address. [94]

150 The alleged admissions consisted in part of what counsel foreshadowed would be evidence adduced in the defendants' case. It also consisted of his response to matters raised by plaintiffs' counsel in opening. Again, it consisted in part of his analysis of legal principles that he submitted were relevant and which would justify the taking of positive action by the defendants against trespassers. Finally, it consisted in part of commentary on documents of which Oren was allegedly the author.

151 The matters said to have been admitted by defendants' counsel in opening, and the circumstances of the alleged admissions, stand in sharp contrast to the formal admission first given by solicitors, and then counsel, in Coopers Brewery Ltd v Panfida Foods Ltd [95]. In very large part, I do not consider that they could be described as admissions binding upon the defendants. Certainly, in my opinion, that is so in the case of foreshadowed legal arguments and commentary directed to Oren publications. Those matters apart, the matters relied upon by plaintiffs' counsel in closing address were typically the sort of matters where, if the evidence does not align with the opening, counsel points up the variation; and that is the end of it.

152 Nonetheless, and for sake of completeness, I should refer to two particular aspects of submissions by plaintiffs' counsel. First, he highlighted, inter alia, this passage in the opening for the defendants:

[58]

In my opinion, it would be going much too far to conclude from what passed between counsel and myself that counsel had admitted, on behalf of his clients, that reasonable force had been used either to inconvenience the plaintiffs or to prevent them from departing the intersection in their vehicles.

156 The suggestion in the closing address of counsel for the plaintiffs that an admission had been made about the use of reasonable force stands in contrast to the way in which the trial was conducted. The defendants adduced a deal of evidence to show that physical force was neither contemplated nor used against any plaintiff during the week. If any remark by defendants' counsel in opening had constituted an admission about the use of force, why would not plaintiffs' counsel have objected to the receipt of such evidence?

157 The same observation may be made with respect to the suggested admission that the plaintiffs had not been free to leave in their vehicles, that being prevented by reasonable force. Some defendants gave evidence that the plaintiffs were not free to leave in their vehicles. That was contrary to the express understanding of other defendants. No evidence suggested that any plaintiff attempted in fact to leave in his or her vehicle. No use of force arose in that context. It is noteworthy also that in the course of the evidence the supposed admission was not put to the second group of defendants to whom I referred a moment ago; nor was it submitted for the plaintiffs that their evidence should not be received in light of the supposed admission.

158 All in all, I consider that for different reasons none of the alleged admissions contained in the opening for the defendants binds them. On the other hand, so far as foreshadowed evidence did not match evidence in fact adduced, that could be the subject of comment.

Towards understanding and resolving disputed issues

Some general observations

159 What occurred in the vicinity of SSP intersection between 25-29 January 1999 had, on any view, quite unusual features. My brief overview of the proceeding, and my quite extensive analysis of the pleadings, says nothing much about the people and organisations involved in the events leading up to and culminating in SSP week. An understanding of those people and organisations, in which I include their aims and expectations, is, I consider, of great importance in determining many of the disputed questions of fact in the proceeding. So, for example, a course of action or a decision which might seem strange if examined in isolation may appear not at all remarkable when the person who engaged in the action or made that decision is well understood.

160 At the outset, however, this must be emphasised: as ever, the answer to disputed questions lies not in hyperbole, not in repetition, not in passion, but in the evidence.

161 In that connection I should first observe that the statement of claim is full of foreshadowed evidence, and is laid in quite florid language; but it is not the evidence.

162 Second, it is the fact that two of the counsel appearing for the plaintiffs had a degree of personal connection with the case. It is also the fact that one of those counsel protested, in effect, that his name was being raised unnecessarily in the course of cross-examination. There was, objectively, no foundation for that complaint. It was legitimate for the defendants to show, if they could, that the plaintiffs had potential access to competent legal advisers, accessible through intermediaries, at pertinent times. So also it was legitimate for the defendants to show, if they could, that a particular protest meeting at which that counsel was an advertised speaker had taken place in October 1998 at or in the near vicinity of SSP coupe. In the event, the fact that one of plaintiffs' counsel may have been discomforted by his name being raised in evidence, and that another of the plaintiffs' counsel also had some connection with the proceeding - with the counterclaim rather than the claim - cannot be permitted to distract attention from the evidence.

163 Third, the senior of the counsel who had some connection with the case demonstrated at times a personal belief that the plaintiffs had been done a great wrong. I have not the slightest doubt of his sincerity; but again it does not stand in place of the evidence.

164 Fourth, this proceeding is not a vehicle for the resolution of the question whether the logging of native forest should be permitted or not. That was a political question, alive at the time. No doubt it influenced things done and said by the parties, and to that extent it is of very considerable importance. But it is what was said and what was done which must be decided, not the rights or wrongs of logging native forest in the Otways.

165 Fifth, there was a political battle in train in the period leading up to and continuing throughout SSP week; a battle designed to influence State and local government, businesses, the local community, and the wider Victorian community. There was a good deal of cross-examination of witnesses about things allegedly said at meetings, published in newspapers, contained in press releases, set out in Oren leaflets, and spoken on radio. Quite apart from the question whether any such thing was said or written, it has seemed to me necessary to consider whether what was said or written represented the truth of the matter, or was rather something said or written, distinct from representing the truth of the matter, for its political impact. So, for example, it might be said that it was compatible with Oren's interests to assert that protesters were being held hostage by loggers; for that might attract sympathy and aid the protesters' cause. Contrarily, it could be said to be in the loggers' interests to assert that protesters were being confined in the forest; for that might discourage other protesters from entering coupes or otherwise engaging in direct action.

166 Sixth, in the trial there emerged another area concerning which it is necessary to consider not simply whether something was said. A number of plaintiffs gave evidence of having made a variety of requests and complaints to policemen who were on duty at the intersection during SSP week; and of there being no positive response thereto. The basis on which that evidence was permitted to be led may be put aside for the moment. The plaintiffs called none of the policemen, whilst the defendants called two of the officers to whom requests or complaints had allegedly been made; but not others. In significant respects the officers who were called did not assist the plaintiffs.

167 Counsel for the plaintiffs submitted that I should draw inferences adverse to the defendants because the defendants did not call all the policemen. I was asked, in substance, to conclude that requests and complaints had been made and that unhelpful responses had been given, this disclosing the attitude of the police to be, by way of example, that they did not constitute a "gate" for the plaintiffs out of their prison.

168 In deciding whether requests and complaints were made and, if so, what responses were given, and further whether some and what inferences should be drawn, it is necessary, I consider, to have an understanding of the relationship between forest protesters and police in the Otways at the pertinent time. I say "protesters" and "police" rather than simply the plaintiffs and the police on duty at SSP intersection between 25-29 January, because what happened that week did not occur on a blank sheet of paper. Most of the plaintiffs had attended one or more forest protests in the Otways before 25 January. Often police and DNRE officers had been present. A number of plaintiffs had spoken to policemen and/or DNRE officers on one or more occasions. Further, there had been an opportunity for plaintiffs who had attended protests to witness interchanges between protesters and police. Many of the plaintiffs left from and returned to what was called in evidence the "base camp" at Mt Sabine after protest actions. It is inconceivable that protesters including the plaintiffs, did not describe interchanges with the police and DNRE officers particularly when there were arrests on occasions. Likewise it is inconceivable that any police officers who were personally present at a particular protest action said nothing to their colleagues about their interaction with protesters.

169 It seems to me very clear, I will refer to the evidence hereafter, that protesters, in which description I specifically include the plaintiffs, had a "them and us" attitude where the police and DNRE officers were concerned. For their part, I think the police - who or whose colleagues had been butts of protester heckling, warnings of imminent harm to protesters, complaints of harm, threats of legal action and the like - were unlikely to take at face value a request or complaint made by a protester. They were likely, I should think, to consider the whole of an apparent situation before concluding that a request or complaint was genuine.

170 I should then, in considering whether in my discretion to draw some inference adverse to the defendants by reason of their failure to call a police officer, closely examine amongst other things the question whether the alleged request and complaint was made, whether it was genuine, whether the police officer to whom it was made had reasonable cause to think that it was genuine, and whether any alleged response should be regarded as a serious response to a request or a complaint which was seriously made, or rather an inconsequential response to a request or complaint which was other than genuine.

171 I should also consider, I add - it is an anterior question - whether any or all of the identified police officers should be regarded as having been in the plaintiffs' rather than the defendants' camp, notwithstanding the "them and us" attitude. For I have little doubt that the plaintiffs' case with respect to the alleged conduct of the police underwent a very distinct change in the course of the trial. [98]

172 I mentioned a little earlier the importance I perceive in understanding the people and organisations involved in the critical events, including their aims and expectations. In that connection, with reference to the plaintiffs, a number of threads are in my opinion discernible. First, focusing upon evidence of their participation, if any, in protest activity before 25 January 1999 - particularly forest protests and most particularly forest protests in the Otways in the period shortly preceding 25 January and matters incidental thereto - a number of characteristics of protests emerge. I consider that these characteristics were known to each of the plaintiffs, either admittedly so or as a matter of necessary inference. That is not to say, and I do not so conclude, that each plaintiff was as fully conversant with each particular characteristic as the next plaintiff. Knowledge of those characteristics, in my opinion, particularly informs the probabilities of what individual plaintiffs did, said or believed during SSP week.

173 Second, the evidence said a good deal, in my opinion, about what I would call the collegiate spirit of protesters - not, I think, that they would so describe it. What I mean is that the plaintiffs, along with other protesters, had their own argot, their quite distinctive mindset about what they were doing, and why they were doing it. That mindset was egocentric, admitted of no possibility of error, and in substance characterised those who did not agree - particularly loggers, but as well police and DNRE officers - as "them" by contrast with "us". It was a mindset which had a ritual formula for use in describing the purpose of forest action, and which displayed either no interest in ascertaining, or an indifference to, the immediate economic consequences of protest action. None of this is to deny, of course, that most - not all - of the plaintiffs had a genuine concern about the logging of native forests.

174 Third, the evidence to which I have been referring has bearing, greater in the case of some plaintiffs than others, about the probability or otherwise that any act of a defendant caused that plaintiff injury, fear of injury, or distress.

175 Fourth, I consider that in answers to questions about earlier protest involvement, or concerning the lead-up to SSP week, a number of plaintiffs gave misleading or frankly untruthful evidence, that affecting the credibility of those plaintiffs.

Characteristics of forest protests

176 It is convenient, and important, to describe at once the characteristics of forest protests in the Otways which I consider were disclosed by the evidence. Not every characteristic was present in every case; and by no means every plaintiff was involved in preparation for and attendance at each protest. But all plaintiffs, save Ms Jackson, had some current experience in preparing for and/or attending a forest protest in the Otways; and Ms Jackson was no stranger to forest protests, both in Victoria and overseas.

177 The characteristics were these: first, there was an element of pre-planning the particular protest activity, often enough at the so-called base camp established at the Mt Sabine picnic area.

178 Second, most often Oren promoted, via flyers and press releases, direct action planned for a particular day; and, when action was ongoing, produced flyers and press releases promoting the fact and seeking that numbers be maintained.

179 Third, the outcome of planning discussions was characteristically that particular protesters would be assigned, or would assume by common consent, a particular role in the protest. The plaintiffs constantly emphasised in their evidence that in the protest movement there were no leaders. What happened was that a group of like-minded individuals would gather together, and out of a gathering would emerge a consensus of what should be done and who should do it. According to this model a person was responsible only for his or her own actions. Counsel for the defendants sought to show by cross-examination that there were leaders in fact; and also that individual protesters would not act in a particular way if any of their number were opposed to such action. Whether the model described by the plaintiffs invariably or ever operated, and whether the defendants' challenges were made out must later be considered. For present purposes what matters is the planning element of a protest whereby one or more protesters would end up being the active participants in particular action, there would be a "buddy" for each active participant, a protester would be nominated to negotiate with the police and DNRE officers, and so on.

180 Fourth, almost always, if not always, there were more protesters at a protest site than loggers; and ordinarily more than loggers, police and DNRE officers in total.

181 Fifth, police and DNRE officers commonly did not arrive for a considerable time after protest action began. Resources were evidently limited. Moreover, only Search and Rescue Squad officers were permitted to remove protesters directly involved in certain kinds of protest action. There was often very considerable delay in arrival of Search and Rescue Squad officers, they being apparently based in Melbourne.

182 Sixth, when police and DNRE officers did arrive, and when pertinent officers were taking steps to remove the participating protester(s), they were often heckled and warned that their actions risked injury to the protester(s) involved. They were often enough threatened with legal proceedings if injury ensued. There were at times shouts of feigned pain and distress. Protesters generally showed a lack of respect, to greater or lesser degree, for police and DNRE officers.

183 Seventh, the actual process of removal of protesters was often protracted.

184 Eighth, recording protest action on videotape and by still photographs was the norm. The evidence shows that Birrell video recorded events which occurred in the vicinity of Riley's Ridge in January 1999, including Bowles "locked on" [99], the car dragon [100], and a protester on a tripod [101]. He also recorded Ms Colson "locked on" at Webster Hill on 14 January 1999 [102], McFadzean in the vicinity of Garvey Track in December 1998 [103], the aftermath of the incident involving a truck and Ms Nelson's car near the base camp in January 1999, [104] and as I understand the evidence, the protest at the Ballarat office of DNRE on 2 February 1999. [105] Ms Dawson or some other protester recorded an incident at the Egan's track coupe on about 10 January 1999. [106] Note also that McFadzean evidently perceived a need for the plaintiffs to have a video-camera at SSP. [107]

185 Still photographs were apparently another means of recording protest action and other incidents. Many photographs, it seems, were taken by plaintiffs in the period between 25-29 January. Moreover, photographs in evidence show plaintiffs having cameras. Again, Ms Dawson said that "someone" had a camera at the time of the incident at the Egan's track coupe, which incident was also video-taped.

186 There appear to have been a number of purposes, not necessarily all operating in every case, why footage was recorded: as evidence of alleged wrongdoing by timber industry [108], as evidence to found charges, [109] for use in training protesters, to record protester back-up arrangements. [110]

187 Ninth, protesters believed that by their simply walking onto a working coupe, work must stop. It was this belief, grounded in some departmental instruction, which led protesters on occasion to complain that work had not stopped; and demanding that it did stop.

188 Tenth, and as a corollary of the ninth characteristic, one form of arrival by protesters on a coupe was the so-called "black wallaby". That is a description of protesters materialising out of the bush without warning, said by loggers to be very dangerous for all concerned.

189 Eleventh, it was not necessary, for protest action to have a serious impact upon work in a coupe, that the action be taken within the boundaries of the coupe. Action which blocked an access track could have a serious impact on operations in the coupe, as well as affecting cartage of logs from the coupe. As a matter of logic that was the more so when there was only one vehicular access track to a coupe.

190 Twelfth, the effect of the inevitable delays in responding to protest action meant that such action was able to cause very considerable loss of work time in an industry which only operates seasonally - in the Otways - between approximately October and the following March or April.

191 One of the undoubted consequences of the characteristics of protest action which I have mentioned is that, as at mid January 1999, action by a relatively small number of protesters could bring about a prolonged cessation of work in a coupe. This meant that protesters held the whip hand. That was the case notwithstanding that protesters were occasionally arrested. It was also the case notwithstanding that there was evidence of a very few incidents of assaults on protesters in late 1998 - Arbuthnot being the person implicated. It was again the case notwithstanding that the State Government of the day had enacted regulations apparently designed to make it easier to exclude protesters from coupes; regulations unsuccessfully challenged in this Court in late 1998 by Christopher Tipler ("Tipler"). Tipler said to be a Melbourne businessman, was certainly a strong supporter of Oren.

192 I have said that protesters held the whip hand. That was the perception of protesters and loggers alike - and in those generic descriptions I include most of the plaintiffs and each of the individual defendants.

193 Compatible with the situation which I have described, this may be said: as at 24 January 1999, so far as the evidence revealed the situation, there had been no occasion in the Otways, at least in then recent times, when a group of protesters had been confronted by a larger number of loggers whilst "in the field"; let alone been told to go. It was one thing to end protest action as a matter of choice, or when a protester was removed or detached, or when an arrest was made. It would have been profoundly different for protesters to end protest action, or action collateral thereto, at the behest of loggers.

Protester argot

194 A little earlier I mentioned that Otways forest protesters had their own argot. Contained in their lexicon were at least the following: "direct action", "actions", "D/A", "blockades", "scouting", "lock-on", "dragon", "car dragon", "tree sit", "bipod", "tripod", "base camp", "camp", "NVA". They were terms understood by protesters, including the plaintiffs. They tended, I am sure, to bind the protesters together, for they gave a community of interest. They cropped up often in the evidence. I should shortly explain their meaning. I should do so also because they shine light on forest protester methodology; methodology which was part and parcel of protesters holding the whip hand as at January 1999 in the Otways forest.

195 "Direct action", "actions" and "D/A" were all generic descriptions of forest protests which had as their consequence the stopping of work in a coupe, or movement into and out of a coupe.

196 "Blockades" was a generic description of direct action whereby work was halted. It might be action as simple as parking a number of vehicles on an access track to a coupe so as to preclude the passage of log trucks; and by the drivers refusing to move their vehicles, or simply disappearing.

197 "Scouting" was a process where protesters scoured an area of forest in order to ascertain the whereabouts of coupes, and whether a particular coupe was being worked. It was a precursor to direct action - though it was said by the plaintiffs that direct action did not always ensue.

198 In establishing whether a coupe was being worked protesters characteristically did not confine themselves to hearing chainsaws or other machinery operating in the distance. Moreover, protesters - some of the plaintiffs gave evidence of this - apparently saw it as part of the scouting function to investigate whether "illegal logging" was being undertaken. Some plaintiffs took the position that illegal logging was certainly being undertaken; it was only a question of its extent.

199 "Lock-on" described both a process and a device. As a process, it described a person attaching himself or herself to machinery, thereby rendering the same inoperable save at risk of harm to the protester. As a device, it described a metal tube which could be passed between some part of a machine - for example, the caterpillar track of an excavator - and into the opposite ends of which two protesters could each insert an arm and then "lock-on" by use of thumbcuffs or the like. Removing persons who were thus locked-on seems to have necessitated, at times, part dismantling of the machine which was affected. Removal of the device itself called for measures such as the use of a high pressure water hose (to force thumbcuffs off) or the use of an angle grinder (to split the metal tube). Understandably, such measures were only undertaken in the Otways by the Search and Rescue Squad.

200 "Car dragon" was a developed use of a "dragon". The latter was a metal frame which could be inserted into and fixed in the ground, and into which a protester would then insert his or her arm and secure it. The protester could only be removed from the site by removing the metal frame; after which it had to be dismantled from around the protester's arm.

201 A "car dragon", as was used at Riley's Ridge on 15 January, consisted of an old motor vehicle, its motor and wheels removed, it doors, bonnet and boot welded tight, and a hole cut in its floor. A "dragon" having been dug into the ground - in the case of Riley's Ridge, into the access road to the coupe - a protester would get into the vehicle, lay on its floor, and insert his or her arm through the hole and into the dragon. The consequence was that to get to the protester, and the dragon, it was necessary to dismantle the motor vehicle. This was evidently time-consuming; and again, was work only undertaken by Search and Rescue members of the police force.

202 "Tree sit" described a situation in which a protester sat in a tree and thereby stopped work in one of two ways: first, simply by sitting in a tree which was to be felled, or which was adjacent to a tree which was to be felled. Second, by sitting in a tree which was attached to a logging machine by a cable. Moving the machine, or even attempting to remove the cable whilst the protester remained in the tree, created risk of injury.

203 "Bipods" and "tripods" were structures made up of long poles - ironically, at times made from trees felled by protesters - lashed together close to their apex. The former took an "A" shape. The latter was triangular. They were of the order of 20-30 metres high at their apex. Often they would be connected by a cable to logging machinery. A protester would ascend the structure and sit close to its apex. Use of such structures had the same capacity to impede work as did a tree sit; but they were a more flexible tool, because they could be erected wherever protesters chose - for example, on an access track to a coupe.

204 "Base camp", in the Otways in the summer of 1998/99, described a camp in the picnic area at Mt Sabine at which protesters gathered, ate, slept and planned their actions. It was the place from which, on a number of occasions, protesters set off on scouting expeditions, or to engage in direct actions; and the place to which, on a number of occasions they returned. It was quite well-equipped for camping purposes - witness Birrell's videotape of the camp as at 29 January 1999 [111] said to represent the situation as it was earlier that month. It was set up by Oren supporters, its presence was advertised by Oren, and the weight of evidence is that it was supplied to an extent by Oren supporters on a continuing basis.

205 "Camp" referred to any camp established by protesters. In particular, and without the definite article, it referred to the camp which the plaintiffs established at SSP intersection as from Sunday 24 January 1999.

206 "NVA" is an acronym for non violent action.

The Plaintiffs and Oren

207 I go now to some of the pertinent evidence given by the plaintiffs. For present purposes, my focus will be in significant part upon the personal circumstances of the plaintiff, his or her prior participation in protest action, and upon the circumstances in which that person came to be at SSP intersection at the outset. I will also, on most occasions, express my view about the credibility generally of the particular plaintiff.

Ms Jackson

208 Ms Jackson is a single woman now aged 25 years. She left school at the end of Year 12 in 1995. She began an Arts course in 1996, but did not pursue it from sometime in 1997. During 1996, according to her viva voce evidence, she went to the Goolangook logging protest camp in East Gippsland. She stayed about three days, and "stood underneath a tripod... for about two hours". [112] She was involved at some stage also in a number of peaceful rallies for the independence of East Timor, and in a peaceful rally outside the offices of North Ltd, operator of the Jabiluka uranium mine [113]. In 1998 she travelled overseas. In the United States she was involved in a forest blockade protesting the logging of old growth forest, her involvement being off and on for about two weeks. She returned to Australia on 4 or 5 January 1999, and by 21 or 23 January - her evidence varied - she was in the Otways.

209 Pausing for a moment, I note that according to the history which Ms Jackson gave to Dr Epstein, [114] in 1997 she went to three logging areas in East Gippsland for up to a week at a time. Apart from the question which year it was, Ms Jackson's account to the doctor was of a considerably greater involvement in forest protest than she stated was the case in her oral evidence. This was not the only instance in which her oral account and the history recorded by Dr Epstein differed. In each instance her oral account suggested a lesser involvement in protest action, and I think it was unreliable.

210 Asked how it was she came to go to the Otways in January 1999, Ms Jackson said that no one suggested it. She had not been there before and had been told that it was beautiful. She said, however, that she was aware that there had been logging for a number of decades in very sensitive areas, and that "there was also illegal logging happening as well." [115] She was aware before she went, from acquaintances, that a group of people were protesting in the forest. Someone gave her Ms Lees' phone number. Ms Lees said she was going to Mt Sabine where some conservationists were camping. Ms Jackson went out of curiosity, not with the intention "to lock-on or anything or blockade". [116] Note here the use of terminology of the kind to which I earlier referred.

211 The witness showed very considerable reluctance, I consider, to admit that she knew she was going to a site of direct action. [117] I have no doubt that she knew that to be the case. The chances of anyone having a discussion with Ms Lees about travelling to the Otways and not appreciating that fact were zero. Moreover, the history given by Ms Jackson to Dr Epstein is clearcut:

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212 Ms Jackson gave evidence that it was her intention to return to Melbourne by some means on Monday 25 January in order to see her family. I will examine that evidence later in these reasons. For present purposes this may be said: that before January 1999 Ms Jackson had some experience of forest protest action both in Victoria and in the United States. She had familiarity with some of the methodology of forest protest. She downplayed her experience of forest action, just as, I am satisfied, she sought in her oral evidence to fudge - taking a very charitable view, the reason why she went to the Otways. Fresh from a forest blockade in Oregon, having been told of logging in very sensitive areas and of illegal logging in the Otways, I have no doubt that she was ready to be involved in direct action when she departed Melbourne. Some of what she did after arriving in the Otways, reveals, I consider, the working out of that readiness.

213 In her evidence concerning the events of that period 24-28 January, Ms Jackson said a number of things which for different reasons were not credible. They accumulate with the unreliable aspects of her evidence that I have already discussed.

Greig

214 Eli Greig is a single man now aged 28. Presently he is social justice and environmental projects officer at Monash University. Apparently he works for the Monash Union Association and the National Union of Students. He left school in 1993, just before the end of year 12. Between then and January 1999, as I understand it, at times he worked in a bottle shop, did bar work, worked as a ski lift attendant, canvasser, fruit picker and sales assistant, and painted and sold T-shirts. At times he seems to have been unemployed.

215 Greig's first protest actions, it appears, were at his high school. The subject matter of those protests was not revealed by the evidence. Before the end of 1998 he had been involved also in protests outside the North Ltd office in St Kilda Road in connection with the Jabiluka uranium mine, protests at Docklands with the MUA, and many rallies against the first Gulf War. [120] As at January 1999 he was running an information stall at the Apollo Bay market for the Jabiluka Action Group. He was, inter alia, selling anti-uranium T-shirts that he had painted. He otherwise had no employment at the time, but he gave evidence that he was to begin a trial of work in an Apollo Bay café on the afternoon of 25 January.

216 He met Birrell, he said, when the latter introduced himself in mid January 1999. Until then he, Greig, had not known of Oren. He did not know that Birrell was one of the leaders of Oren. He had not seen Birrell's name on brochures or flyers, though he had seen brochures and flyers in many shops in Apollo Bay which told about a base camp at Mt Sabine.

217 Greig gave evidence that Birrell said to him that if he was interested in environmental issues he could go to Riley's Ridge. He followed Birrell's car, being aware that a protest was occurring. He denied that Birrell asked him to join the protest. When he arrived he saw (he did not use this term) a car dragon. There was a long row of cars, the car dragon, police and DNRE officers, protesters and loggers. It took a number of hours, two at least, for the police to take the car dragon apart. He saw Birrell videotaping the incident. He acknowledged that it was clear that loggers were not working that day and that the clear intention was to stop them from working. He denied that this incident led him going to the base camp on 24 January, and thence to SSP intersection.

218 Greig was evidently a man who attached himself to protest causes. Whether they were worthy or not is beside the point. He readily fell in with Birrell's suggestion that he attend the Riley's Ridge protest. I cannot believe his evidence that he did not attend to join the protest. The same may be said of his evidence that, Birrell having introduced himself, he did not recognise Birrell to be a leader of Oren. Virtually every Oren leaflet mentioned Birrell as a contact. It was Oren leaflets that advertised the presence and whereabouts of the base camp.

219 I should mention three other matters. First, the incident with the car dragon occurred on 15 January. Second, it was attended by a number of the plaintiffs - Greig, McFadzean, Ms Dawson, Bowles, Fowkes and Ms Colson; and as well by Birrell with his ubiquitous video camera, and Fiona Nelson ("Ms Nelson"). She, Ms Nelson, figured substantially in events which occurred before and during SSP week. Third, the car dragon direct action revealed many of the characteristics of forest protest action in the Otways which I have previously mentioned.

Ms Gross

220 Ms Gross, a woman now in her mid twenties [121] was brought up in Apollo Bay. Now she is a part time jewellery maker. In January 1999 she was working at "the health food shop" and selling her jewellery at the Apollo Bay Saturday Market.

221 The "health food shop" in which Ms Gross worked was the "Sandy Feet Cafe". It was often referred to in evidence. It seems to have been a venue frequented by those involved in forest protest action. Oren flyers were exhibited there. When consideration was being given by loggers to picketing premises whose inhabitants were supposedly sympathetic to protest action, this café was on the list of such premises. [122]

222 As at January 1999 Ms Gross knew Ms Nelson, and knew that the latter was involved with Oren in some way. She also knew Sally Anne Brown ("Ms Brown"). Ms Brown, who was often referred to in the evidence, was described by Ms Lees as one of three people who worked in the Oren office as at January 1999 - the others being Whitehead and Neika Brewster. [123] Ms Brewster was then, and still is, in a relationship with Dwan. Whitehead and Ms Brown were said to be husband and wife; or at least to live in the same house. Other evidence suggested that Ms Brown was the local Greens candidate. On 28 January a member of Senator Bob Brown's staff first made representations to the police concerning events at SSP. This might have been mere coincidence, of course. There were other ways that Senator Brown's office might have been apprised of the situation.

223 In any event, Ms Gross described herself as being opposed in January 1999 to logging certain areas in the Otways. She did not support everyone who was taking action, but she certainly supported the cause. [124]

224 On 15 January, she said, she attended the Riley's Ridge protest. She had heard about it at the café and was "intended to see what was going on." [125]

225 On 24 January she heard about the base camp from conservationists at the café. She drove out to the camp after work.

226 On 25 January, at work, she heard that something was going on at SSP. She decided to go to Mt Sabine after work. On her journey she met Ms Nelson, who said she was taking food and water to people who were "trapped". She then drove towards SSP intersection, as did Ms Nelson in her vehicle. An incident occurred in the vicinity of the intersection to which I shall later refer.

227 On 26 January, whilst at work in the café, she heard that four people had come out of the bush and were being driven to Ms Brown's house. She went there. After discussion, she decided to go to the camp at SSP intersection, and she did so in company with Greig and Fowkes.

228 Deriving from the evidence of Ms Gross to which I have thus far referred, this may be said: whilst she was opposed to some logging in the Otways, had acquaintance with some of the main Oren players, had attended the Riley's Ridge protest action, had attended the base camp on 24 January, had attended in the vicinity of SSP intersection on 25 January, and joined the protesters' camp on 26 January, she was not a person who had close connection with forest protests generally. Her knowledge of what was happening, of the methodology of forest protest action, was largely derivative, as would be gleaned from the conversations that she evidently had with forest protesters at the café.

Dwan

229 Dwan, a man born 31 January 1962, and so now aged 42, has lived at Hordern Vale for many years. At trial he gave evidence that he was self-employed. When he attended the Clinic, on 29 January 1999 he apparently described his employer as "Mother Earth". [126]

230 It is not easy to describe Dwan as a witness. Whilst quite articulate, he created the clearest impression that he would not answer a question if it did not suit him to do so. In that connection his technique was characteristically to half answer, or to answer a question which had not been asked. At times it was like watching an exercise in dialectics gone wrong. On the other hand, if it was a case of answering a question so as to damn the defendants or a particular defendant, his evidence was generally clear and often detailed - though sometimes the detail later caught up with him.

231 Considering his evidence carefully, I must say that there are substantial parts of it which I cannot accept. In the course of these Reasons I will say why that is so in particular instances.

232 Dwan conceded that he had been a regular user of cannabis as at January 1999, three to four joints after a hard day's work, on and off over five to 10 years.

233 I did wonder whether such use could explain the way in which Dwan gave his evidence, or any of its content. But Dr Epstein, who examined Dwan, gave no evidence to suggest any such explanation. [127]

234 What, then, of Dwan's evidence of his participation in forest protests in the Otways before 25 January 1999?

235 He said that he became involved in the Save the Otways Movement from about 1993, being one of those who set up the Movement. He attended a rally, talked to people and attended blockades.

236 He commenced his involvement with Oren in 1996.

237 In the summer of 1996/97 he involved himself in its activities on an average of one to two days, or it could be three days, per week. He did publicity work, put up flyers, spoke to members of coastal communities and worked in the office.

238 In the summer of 1997/98 he had an increased involvement. That year he worked also as a driver and tour guide for Last Chance Tours, an eco-tourism company set up by his then girlfriend and others, and partly run from the Oren office.

239 In the summer of 1998/99 he was at Oren's Apollo Bay office up to three days per week - doing office work, answering the telephone, telling people where logging was occurring, what protest actions were going on.

240 In October 1998 he had a role in organising, and he attended, the "Picnic Without a Permit". It was held at a landing adjacent to SSP coupe. Speakers included a local indigenous elder, Tipler, perhaps Birrell, and Mr Walters of counsel. He was aware at the time that the picnic involved people illegally entering a forest operation zone, as provided for by regulations. He was opposed to the regulations, wished to participate in a protest about them, and was prepared to enter the site knowing it was illegal to do so in order to further that protest.

241 The witness said that in late 1998, either at the Oren office or in material which he had been asked to post up, there was reference to a summer of forest blockades and protests, to base camps and such. He saw documents advising people to bring camping gear and be prepared to be self-sufficient, to bring anything needed to help stay as long as possible for the summer campaign. Documents set out contact numbers, one of which was next to Birrell's name.

242 One of the documents which the witness saw in the summer of 1998/99 was an Oren document headed "Otway Forests update summer 98/99". [128] Taken to a section headed "What you can do", containing in part the advice "Put your body on the front line at a forest protest", Dwan said that it was a person's personal choice whether to do so. Asked if he wanted people to make such a choice, he said "if they felt so inclined, yes." [129] I have no doubt that this was a gross understatement of his true position.

243 The witness agreed that he had been involved in setting up the base camp. That was in about November 1998. His evidence about that involvement ebbed and flowed, sometimes from one question to the next.

244 Dwan agreed that he attended a number of protest actions in the summer of 1998/99. He agreed that he was involved in assisting transport of people from Apollo Bay to the base camp, and from the base camp to the coupes. He denied, unconvincingly, that he knew that in assisting movement of protesters in the ways described he was helping those people to involve themselves in protest action; but said that:

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245 As to his attendance at protests, he had been to Garvey Track in December 1998. He had parked his car on the side of the road. He claimed to know almost nothing about protest action that was going on there, and not to have seen Oren leaflets that dealt with that protest. He being a person who on his own account did publicity work for Oren, which included distribution of literature, and who attended Garvey Track, that evidence was just not believable.

246 Further as to his evidence that he had parked his car legally, Dwan acknowledged that he had told a DNRE officer who asked him to move his car that it was not parked illegally, that it was the officer's problem, and that he had to go and have a sleep in the bush because he had had a busy week. As these Reasons will show, Dwan had a penchant for being tired and disappearing into the bush in circumstances where one would not have expected him to be fatigued. Asked whether he had been deliberately evasive of attempts to clear the road, he replied that the road was clear at that stage, an answer which might have been correct as at that moment, but which was deceptive because, when other protesters' vehicles were parked alongside his vehicle, they jointly became a barrier to traffic; [131] Further, his denial of a belief that the presence of protesters' vehicles parked on the side of an access road to a coupe would be a disincentive to truck drivers entering the coupe to load up was incredible. [132]

247 Dwan attended other protest action that summer. He was at Webster Hill on 14 January when Ms Colson and "Jade" were locked-on; and at Riley's Ridge on the day of the car dragon incident. He gave evidence that he just chanced to come upon the incident at Riley's Ridge, seeing a line of vehicles as he was travelling home. That evidence strains credibility to breaking point having regard to the extent of Dwan's involvement with Oren and with forest protest action that summer. Indeed, he had been at a Riley's Ridge protest on 14 January - that is, the day before the car dragon incident.

248 On 14 January Dwan engaged in what I am abundantly satisfied was a spurious assertion to a DNRE officer, Brad Fisher ("Fisher"), that an ambulance was required because a protester had injured a limb. The circumstances of that incident are depicted in videotape recorded by Birrell [133] and were described by Fisher in his evidence. [134] Dwan's evidence, [135] when all the circumstances are considered, could not be accepted. The incident reflects poorly upon his credibility.

249 Dwan also lay down in front of a DNRE vehicle at Riley's Ridge on 14 January. He had an explanation. He had done this

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I have no doubt that this was a deceptive, if not frankly untruthful, answer.

253 Finally I should mention Dwan's involvement in an incident at Number 9 Ridge in February 1998. I describe its detail elsewhere in these Reasons. Its present significance is this: Dwan admitted that he then knew and relied upon the practice of loggers stopping work once protesters came into a coupe. [143]

Ms Lees

254 Ms Lees, a lady born 10 October 1969, has a Bachelor Degree in Social Science (Environmental Studies) from RMIT University. She now works at the University with deaf and disabled students.

255 She had schooling up to year 12 at several institutions. Then, according to the history which she gave Dr Epstein, and which she generally confirmed in evidence, she began drinking and experimenting with marijuana and speed.

256 She went overseas for about 12 months. On her return she had intermittent shop work. At this stage, it seems, she began to use heroin. In 1991 she began to repeat year 12. She formed a relationship, but within that year the boy was killed in a car accident in particularly horrendous circumstances, and she did not do her exams. She increased her use of drugs.

257 In 1992 she began attending the Latrobe University campus at Bendigo, studying for an Arts degree. Her attendance was short-lived. She began to use more drugs and alcohol. Later that year she went to Windana for detoxification, and then attended its therapeutic community for a period. But, back in Bendigo, she resumed regular use of heroin.

258 In 1993 she went to the north coast of New South Wales. Whilst there she continued to use heroin and marijuana. Then she returned to Victoria, went to a meeting at Colac and met Dwan. She went to live with him at Hordern Vale in 1994. Their relationship continued until 1997, when it broke up acrimoniously. In the period of their relationship she used marijuana regularly.

259 Having broken up with Dwan, she enrolled at RMIT in 1998. She lived in Melbourne with friends. As I understand it, the course in which she enrolled was the course which eventually yielded her degree with honours.

260 Ms Lees' involvement with the Save the Otways Coalition - the predecessor of Oren -began in late 1994 or early 1995. She attended the Oren office and assisted with Oren's work until moving to Melbourne in 1998. She downplayed, I am confident, the amount of work which she did in that connection, and the extent of contact that she had with Oren personalia during 1998.

261 As to protest action, Ms Lees said that in the summer of 1997/98 she went to an "open day" at Wild Dog Ridge, and to a protest at Number 9 Ridge.

262 Preceding the summer of 1998/99, Ms Lees went to the picnic without a permit. Apparently she was told about it by Ms Nelson. She said she arrived late and pretty much missed the whole day. She was one of a series of people, plaintiffs and defendants, who attended meetings and either arrived late or left early; and who could recall little if anything about what was said. In some instances that evidence was credible. In other instances it seems improbable. In Ms Lees' case I consider the latter description is appropriate.

263 Ms Lees attended a festival known as "ConFest". It took place between late December 1998 and early January 1999, I think at Moama. It was a festival also attended by Ms Dawson, Bowles, Fowkes and Ms Epstein, which is not to say that those people saw each other there. According to Bowles, it was meant to be a festival of alternative lifestyles [144].

264 There was an Oren stall at the festival. Ms Lees, amongst others, saw a flyer depicting Whitehead's bloodied face - the result, it was said, of assault by a logger.

265 The witness said that she went to Mt Sabine in the week commencing 9 January. The location was depicted on an Oren flyer, given to her at a festival - it must have been ConFest - by Whitehead. Her initial explanation of what she was doing - "I was looking at areas of forest" [145] - was hardly accurate. She was camping with other protesters, and scouting.

266 She gave evidence of what "scouting" involved [146]. The outcome of a report on a scouting expedition would be given to those at the base camp. A discussion would be made whether to stage a protest, and those who wished to be involved would go out to the coupe.

267 It seems very likely that Ms Lees and others knew where to scout; because, as she said, she believed that at the base camp

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That was most likely done by reference to a Wood Utilisation Plan ("WUP"). It bears upon the probability or otherwise that the scouting party which arrived at SSP coupe on 24 January found its way there by chance.

268 Whilst in the Otways before 24 January, Ms Lees said, she had not only camped and scouted but had twice gone to Egan's Track. On one occasion Ms Dawson was with her. On that occasion she had a tree felled on her. She gave an account of the incident which I am satisfied was deceptive in a number of respects. Video footage of the incident [148], was admitted. It disclosed protest characteristics known to plaintiffs, and so bore upon the probabilities of what individual plaintiffs said, did, or believed during SSP week, just as it bore upon what I earlier called the "collegiate spirit", and upon the probability or otherwise that individual plaintiffs suffered injury, fear or distress. It incidentally confirmed the deceptive quality of a number of answers given by this witness concerning the incident.

269 Ms Lees agreed that on occasions she proceeded on the basis that the presence of protesters on coupes had the effect of causing work to stop. That was one of the characteristics of protest.

270 Ms Lees also attended the Riley's Ridge protest. She spent 10 or 11 hours as the "buddy" of a man seated in a bipod. That was at a log landing. It was on the day of the car dragon. On 15 January, then, there was protest both within the coupe and on the access road to the coupe.

271 Apart from these incidents, on 13 January Ms Lees was involved in a confrontation with a truck driver on the Mt Sabine Road. Apparently the truck struck Ms Nelson's vehicle as it passed. The cost of repairs, according to Ms Nelson was $900; so the impact could not have been substantial. Be that as may, a video tape of the incident was recorded by Birrell [149]. It is relevant as bearing, inter alia, upon the fear of loggers which Ms Lees, Bowles, Fowkes and Ms Colson said they took with them to SSP week; and to the effect, if any, upon them of incidents which allegedly occurred during that week. It shows, in my opinion, an apparent absence of any fear of a logger, an apparent disdain for risk of injury, and the disposition of protesters, including some of the plaintiffs, to vigorously and abusively assert themselves against a logger.

272 Ms Lees gave evidence of provisions at the base camp as at January 1999. Apart from food and water there was, she believed, some cable. She saw lock-ons. The camp, then, was equipped with some of the paraphernalia of direct actions.

273 The witness denied, for the most part, seeing a variety of Oren publications current in the period leading up to SSP week. She said, contrary to the evidence of Ms Epstein, that there were no Oren flyers or brochures at the base camp. She contrasted that with "fact sheets" [150]. She acknowledged seeing, in January 1999, an Oren brochure encouraging protesters to put their bodies on the line at a forest blockade. She was prepared to do that [151].

274 I should also refer, in connection with the characteristics of protest action, to the witness's evidence about two other matters, first, that there were safe houses. Second, as to a banner.

275 Concerning safe houses, Ms Lees said she was aware that there were such places in January 1999 for forest protesters; there was Whitehead's home in Apollo Bay - which was also the Oren office; also the homes of Ms Nelson and Mr Rod Deering [152].

276 Concerning a banner, the witness said she remembered a green Oren banner as at January 1999. She did not remember it being put up at protests which she attended. She did see it during SSP week. She gave no evidence when she first saw the blue banner which was erected across the mouth of SSP Track. Other evidence showed that the blue banner was erected, by the afternoon of 26 January. The green banner, which was attached to Raymond Donato's vehicle at SSP some time on 25 January, had on it the words "Otway Ranges Environment Network", "Oren", and an Oren logo; whilst the latter had on it the message "No permits for public forests" [153]; and on its reverse side the message "Preserve our eco-systems." There was very little if any evidence of how the banners came to be at SSP intersection that week.

277 Ms Lees drove Ms Jackson from Melbourne to the Otways. Ms Jackson said that someone gave her Ms Lees' telephone number. Ms Lees gave evidence that she left her telephone number and a message that she was planning to travel to the Otways over the Australia Day weekend in a Forest Network car pooling book maintained at the Friends of the Earth office, Collingwood. Ms Jackson rang her. Other than Ms Jackson, she invited "Gary", whom she had met once at Friends of the Earth, to accompany her. He did so. He was one of a number of persons present at the plaintiffs' camp for all or part of SSP week who were not called to give evidence.

McFadzean

278 McFadzean, a man aged 33, [154] is the Acting National Forest Campaign manager for the Wilderness Society. His employment with the Society began with his appointment by its Victorian Branch as campaign coordinator in late 1998, his work formally commencing in January 1999. There was a lot of cross-examination about this chronology. A good deal of the cross-examination became beside the point when the counter-claim was compromised. It is at least clear that, although his paid employment apparently began in mid-January 1999, McFadzean had been rebuilding links with forest action groups from December 1998. I say "rebuilding" because before he went to Queensland in 1996 he had been active in "forest issues" in this state.

279 McFadzean has a formal qualification. He holds a Bachelor's degree in Economics and Politics from Monash University. He graduated in 1993.

280 Whilst at university, on his account, he became interested in environmental issues. He had some association with, inter alia, Friends of the Earth and the Wilderness Society. His first involvement with "forest issues" was in 1992 in East Gippsland. His first involvement in the Otways was in 1995.

281 In 1996, McFadzean said, he was employed by the Australian Greens as media coordinator in Victoria for the 1996 election. Soon after that he went to work for the Cairns and Far North Environmental Centre. There he remained until obtaining employment with the Victorian branch of the Wilderness Society. When the branch "went broke" [155] he was re-employed as Melbourne Campaign Centre Manager.

282 From 1988, throughout his time at University, and until 1996, McFadzean said, he was an employee of the Shop Distributive and Allied Employees Association. He began as an office boy, and became a part-time organiser.

283 What I have thus far said about McFadzean's evidence concerning his employment background points in the direction of his having a belief that mass media reporting could have a persuasive influence, whether it be in the party political context or in connection with environmental issues. It also points in the direction of his understanding the implications of his conduct in the context of the aims and work of the conservation movement generally. Much other evidence pointed to his having and acting upon such belief or understanding.

284 In my opinion it must constantly be kept in mind when considering what McFadzean said, did or believed during SSP week that he was very much concerned with the political working-out of environmental issues; and that he well understood the potential for the mass media to assist in bringing about a political situation that was favourable from his perspective. So to conclude is not to deny, of course, that he had genuine concern about environmental issues.

285 Before going on, I make these observations about McFadzean and about the manner in which he gave evidence. He impressed me as being quite clever, and as having an agile mind. On the other hand, some aspects of his evidence suggested that he was not as clever as might seem to be the case. So, for example, there was a stark difference in his memory of incidents which assisted the plaintiffs' cause and incidents which harmed it. He claimed, for example, to recall the detail of things he said to policemen, DNRE officers and Ms Calvert so far as they assisted his case; yet he claimed to have no recollection of, or denied, a series of remarks which I am satisfied were made by or to him and which did not accord with his general thesis.

286 Again, some of McFadzean's denials were quite improbable - see, for example, his evidence about the media opportunity offered to the protesters' cause by the SSP incident. Further again, his evidence in some respects was internally inconsistent. Witness his varying accounts of how he came to be the mediator at Webster Hill on 14 January.

287 These matters apart, McFadzean answered very few questions spontaneously when cross-examined. He gave the impression, often, of carefully considering his answer to a particular question; and of considering the ramifications of answering not simply the instant question, but of considering where that might lead. He gave evidence over a long period, and the impression which he created was powerfully the case. Also notable was the length and complexity of a considerable number of his answers in cross-examination; and the relative brevity of his answers in examination and re-examination.

288 McFadzean gave evidence of his involvement in a number of confrontations going back to 1993. They show that on his account he had been exposed to violence before SSP week, and that with distressing effect. This bears on the likelihood that he was made fearful by any action of the loggers during SSP week; upon the probability or otherwise that he suffered injury, fear of injury or distress in consequence of any such action; upon his awareness of the possibility of bringing legal action arising out of incidents at protests; and upon "them and us" where the police were concerned.

289 In 1993, McFadzean said, he went to the Philippines for two months and was involved in radical actions. Contrary to the history recorded by Dr Epstein [156], he did not see people murdered, and other episodes of violence; but he did see shots fired, heard that people had been hurt, and saw other episodes of violence.

290 McFadzean agreed that following an incident at the then Richmond Secondary College in 1994 he claimed that he had been assaulted by police.

291 In 1994 or early 1995, he said, he had been involved in a confrontation with police outside a DNRE office. He had been assaulted and was one of a number who brought a case. It was settled, and he received compensation.

292 In 1995, he said, he was assaulted more than once. In one instance he made a claim for crimes compensation after a logger was convicted. Compensation was paid.

293 Between 1996 and 1998, whilst based in Queensland, he had been involved in actions at Hinchinbrook Island and at Jabiluka. At Hinchinbrook Island he had been pursued and his associates had been assaulted.

294 A number of these incidents, McFadzean said, had distressed him. No doubt alleged distress, if not frank injury - whether physical or mental - must have been pertinent to his earlier claims for compensation.

295 McFadzean gave evidence pertinent to the potential availability of legal assistance to the plaintiffs during SSP week. Such evidence did not show, I emphasise, actual contact during the week. It is part of a body of evidence the possible significance of which must later be discussed. So far as McFadzean is concerned, his diary entry for 3 January 1999 identified Tipler as being a person "working with Brian Walters". His entry for 4 January referred to Mr Walters, identified him as a barrister, noted a telephone number, and referred to questions to Parliament. He said that he had been told that Mr Walters was someone who could offer advice on legal issues. An entry for 20 January bracketed "Jarrad Malaly" (sic) and Mr Walters, and noted a mobile telephone number for the former. Mr Mullaly ("Mullaly"), now a barrister, gave evidence at the trial. He was called by Ms Nelson on more than one occasion during SSP week; and he spoke to the police during that week. Of those conversations, more later.

296 McFadzean gave much evidence pertaining to his contact with media representatives, and of media campaigns. As to the former, it is the fact that on Tuesday 26 April Ms Claire Miller, environment reporter with "The Age", and a photographer, arrived at SSP intersection. Ms Miller interviewed McFadzean and Chris Wheeler in SSP coupe. Photographs were taken. The group was driven into the coupe in Chris Wheeler's utility. That was not the only media contingent to attend SSP intersection that week. Certainly it was an imprisonment with unusual features, if imprisonment it was.

297 Be that as may, Ms Miller was mentioned in McFadzean's diary on occasions after his arrival back in Victoria and before SSP week. See his diary entries for 14 December 1998, 2 and 23 January 1999. He said that the first entry indicated his intention to ring Ms Miller on his return to Melbourne. The two entries for 23 January, he said, appeared to show that he rang her about a possible story in the Saturday Extra section of "The Age".

298 According to McFadzean's evidence in chief, he did not know Ms Miller before he met her at SSP intersection [157]. If that answer could be considered correct, it involved a very narrow meaning of "know".

299 Further according to his evidence, Ms Miller was an "impartial journalist". She was, he said, "disposed to environmental issues, yes, and as a supporter of environmental protection"; [158] but he denied that she was favourably disposed to his cause. He eventually admitted, nonetheless, that he e-mailed her a copy of the writ in this proceeding before, apparently, it was served on the defendants. He did not do that, he said, as a way of getting media coverage for his cause. "We", he said, had been very conscious to see that the media was "crafted" in a way that did not jeopardise the outcome of the proceeding [159]. Whether he attempted to craft the media in such a way may be doubted. But whatever his specific intent, it is clear that McFadzean saw and took the opportunity to gain favourable mass-media attention for some aspect of his cause.

300 McFadzean's familiarity and contact with the media was not confined to Ms Miller as at January 1999. See his diary note for 2 January 1999 listing newspaper and radio contacts; likewise an entry for 21 January.

301 I have remarked a number of times that by early 1999 McFadzean had considerable experience with the mass-media; and a belief in its power to influence public perception. I have referred to some of his evidence in those connections. I should highlight some more of it.

302 When he was appointed by the Victorian Branch of the Wilderness Society he was told about the kind of activities that he could undertake. They included "writing press releases on logging, media" [160]. When he took up the job he gave advice on media issues, and on very simple police and legal issues.

303 Speaking of the "car dragon", he agreed that one aspect of such an event is to attract media attention. He said:

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He meant, he agreed, to move community views against logging in native forests.

310 For McFadzean not to have made the concession which he ultimately did would have left him in a hopeless position. It would not have squared with Oren's linkage of violence allegedly inflicted on protesters by loggers with its anti-logging message, a linkage pursued throughout the summer, and emphasised by its depiction of the battered Whitehead. Moreover, it offends common sense to think that the public would or might not be moved against the loggers' position if the perception was created that they were, colloquially, a bunch of thugs. Members of the public might well be brought to think that the loggers could have no worthwhile argument, for they had resorted to violence.

311 I mentioned earlier McFadzean's awareness of the politics of the conservation movement. He gave evidence at length about the place of the Wilderness Society in that movement and of its relationship with local groups such as Oren. He spoke also of tensions between individual conservationists and the Wilderness Society. The counterclaim was on foot when he gave evidence. I think that this was a reason why he went to great and sometimes improbable lengths to distance the Wilderness Society from events in the Otways, emphasising Oren's primary role. It got to the point where he conceded only that it was possible that he had told Chief Inspector Robinson ("Robinson", the senior police officer involved in the events of SSP week) that he was Gavan McFadzean from the Wilderness Society, Robinson giving evidence, otherwise inexplicable, that McFadzean had so described himself; and where he claimed to have told Ms Miller that whilst he was employed by the Wilderness Society he was at SSP in a private capacity.

312 Those excesses to one side, and whether or not the Wilderness Society had some role to play in the Otways campaign, McFadzean said and I accept that Oren had the main running. I accept also his evidence that it was essential for the Wilderness Society's campaigns that there be good relationships between he and various groups campaigning about particular forests.

313 In those circumstances, and remembering also that he had assisted to establish Oren, that he did not deny that he agreed to have his name as a contact on a 1997 Oren press release [166], that he knew Birrell, and that he was evidently someone upon whom Birrell thought he could rely, I consider it very likely that, if faced with a question what should be done at SSP, McFadzean would have had in mind the possible impact of any action by the plaintiffs upon Oren and its campaign [167].

314 I said a little earlier that McFadzean gave evidence of tensions between individual conservationists and the Wilderness Society. I am satisfied that tensions did exist. He referred to his future employment with the Society, in a diary note, as working with the "enemy". That was, he said, because of prior disagreements within the environment movement. Another of his diary notes refers to discussions on the evening of 13 January about the Webster Hill protest action planned for the following day:

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Ginko was a reference to Bowles.

315 I consider that a number of entries in McFadzean's diary were, to use his word, "crafted"; that he was looking beyond SSP week. I also think that a number of his diary entries used language which clothed ordinary events with a sense of drama. Even so, I consider that the entry referring to an incident with Bowles on the evening of 13 January bespeaks an area of real tension.

316 I turn to McFadzean's understanding of and involvement in forest protest action. It is clear that it was very extensive. I am well-satisfied that he had, as at January 1999, an understanding of the characteristics of such action which I have identified. I should refer to a little of his contemporary experience.

317 Before his return to Victoria in late 1998 he contacted Birrell. It was part of re-establishing contact with people he knew in forest action groups.

318 Contrary to his evidence that he first went back to the Otways in January 1999, I consider it probable that in December 1998, he was at a protest at Garvey Track. In the audio section of a video tape recorded by Birrell [169] he is heard saying: "Back in the fold. Back in the Otways." Another video tape [170] probably shows him at that site.

319 Next, McFadzean attended an incident in which Ms Colson locked-on at Webster Hill on 14 January. He acted in a liaison or negotiating role. That role was arranged at a meeting the night before. Some of his role is disclosed by a video tape [171]. McFadzean explained in evidence what limitations are imposed upon a negotiator [172].

320 What I have just said about the Webster Hill incident emerged progressively in McFadzean's evidence. At the outset he was unable to recall who had informed him that an action was proceeding, and said that he would have gone to the site because he had a personal interest in forest protection issues and it would have interested him to go down and have a look. He said also that he just stepped into the liaison role. That first account, I consider, was considerably short of the true situation.

321 McFadzean, with his eye for media opportunities, said that what went on at Webster Hill was a "forest rescue blockade." That is what it is called for media purposes [173].

322 Finally concerning the Webster Hill incident, questioned whether he knew that the lock-on was fictitious, he said after a very long pause that he did not recall being aware that the protesters could unlock themselves. There was compelling evidence that one of the protesters involved in the lock-on was not in fact locked-on at one stage during the day. I find it difficult to accept the truthfulness of McFadzean's evidence, he being on site throughout the day.

323 McFadzean was evidently familiar with a lock-on device. Its main purpose, he said, was so that the device that connects the protesters could not be removed. He agreed that removing the pipe is a dangerous and very delicate task but said, "you don't want to have too much space around them". [174] Obviously, the more difficult the task, the longer it will take and the greater will be the period of the forest rescue, or of the work interruption, depending upon the perception of the person affected.

324 The witness attended Riley's Ridge on the day of the car dragon. He stayed all day. He described the dragon device in detail. He thought the dismantling at Riley's Ridge took about five to six hours. He later said it was possible that the job was not completed until after 7 pm. He knew the man in the car dragon as a forest protester in East Gippsland. He agreed that one of the purposes of the car dragon was to prevent passage of vehicles and trucks, and another was to prevent logging work. He said, in substance, that there was no danger of another vehicle striking the car dragon and injuring its occupant because of the presence of other protesters and their vehicles. He would say "we would have had people at the intersection that would have alerted trucks coming down the road." [175]

325 As with other plaintiffs, the witness claimed uncertainty whether logging employees got paid when unable to work because of protest action. He knew that it was likely that they did not, and that it was a source of tension that if they could not work they did not get paid.

326 McFadzean described seeing a tripod at Riley's Ridge on 15 January. His evidence showed his familiarity with such devices.

327 The witness gave evidence that he knew Search and Rescue Squad members were used in some forest protest situations. He understood they would most likely be based in Melbourne. He said that "they don't always immediately appear, no." [176]

328 The witness gave evidence of the "buddy" role, thereby showing his familiarity with it. One aspect of the role, he said, was to bear witness as to how a person on a tripod is removed, that the person is safe [177].

329 McFadzean also gave evidence of the need to give protesters experience before they took on a role such as buddy or liaison:

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330 McFadzean knew of the technique of walk-ons, the likelihood that loggers would cease work in the presence of unlicensed personnel being relied upon by the protesters. He also knew about scouting, and its purposes.

331 Finally, at this point I should refer to the circumstances in which McFadzean came to be at the Mt Sabine base camp on the afternoon of Sunday 24 January. He said that Birrell called him, allegedly from Queensland, and asked him to go to the Otways. That was either on 23 or 24 January. His main purpose for going to the Otways was a concern that he had with Birrell for the safety of conservationists following a meeting in Colac - that is, a meeting of loggers and other interested persons held on the evening of Thursday 21 January. He went down, he said, as a more experienced conservationist to make sure everyone was okay, gain an understanding whether they knew of the Colac meeting and that there might be retaliation [179].

332 That evidence, I consider, is of some importance. On his account McFadzean went to the Otways on 24 January because of concern about the safety of protesters in the context of possible action by loggers. That day he learned of the incident involving Ms Dawson at SSP coupe. He went to SSP intersection thereafter. That night windows of two protesters' vehicles were broken, so the evidence stands, in the course of a drive-by. It might be thought that McFadzean would have urged the campers to leave on the Monday morning, or at least when the loggers arrived. Evidence shows that he did not do so [180]. Those circumstances bear, I consider, upon matters such as his intentions from time to time on the Monday, the likely content of conversations he had with Ms Calvert that day, the probabilities of what he told the plaintiffs about those conversations, and his conduct thereafter until leaving the camp on 28 January.

Ms Dawson

333 Ms Dawson is 29 years of age. She is a Bachelor of Science graduate in Environmental Studies. She now works for an aboriginal corporation. As at late 1998 she had deferred her course. In fact she had commenced her university studies in 1993 and they had proceeded in stop start fashion. She was travelling, using money earned from fruit-picking, and then unemployment benefits.

334 She gave evidence that since the age of 19 she has been passionate about environmental issues.

335 Her evidence revealed that she had considerable experience in protest activity, including forest protest action, before SSP week. So, she had been involved in action at Goolangook in East Gippsland in 1997, and had been at Jabiluka in 1998. In both instances she had been arrested and charged. In the first instance the charge had been dropped after a like charge against Senator Brown had been disposed of in his favour in this Court. In the latter case she had been found guilty and fined without conviction. The only point of her having been charged, for present purposes, is that it bears upon her having a "them and us" attitude so far as the police were concerned during SSP week.

336 Ms Dawson's evidence was that before going to the Otways in early January 1999, she had hitchhiked from Queensland to South Australia. Then she took a train to Melbourne and stayed with friends. From there, in December 1998, she went to East Gippsland, where she again stayed with friends. She saw Bowles in East Gippsland. A lot of them went from East Gippsland to ConFest.

337 At ConFest, Ms Dawson said, people told her about what was happening in the Otways. Her understanding was that there was clear-fell logging in water catchments, on the edge of rain forest. She said, oddly I think, that she did not recall seeing an Oren stall at the festival. She was told that there was a campaign on that summer. She travelled to Melbourne with some of those who had been at ConFest. She was not aware what actions were planned, but she agreed that actions could mean blockades, lock-ons, construction of bipods and tripods with people perched on them, and car dragons. She had seen all of those things before January 1999. [181]

338 Ms Dawson was familiar, then, with those aspects of forest protest as at January 1999. She was also familiar with the concept of scouting, and of a person acting as buddy. She agreed that it is important that the number of protesters is sufficient. She knew that videorecording and still camera shots were important at protests, and that there be a police liaison person. She said, however, that protests were "much more random than that" - that is, less planned. [182] I think it likely that there was some force to that observation.

339 The witness evidenced other beliefs characteristic of Otways forest protesters as at January 1999. They can conveniently be explained in the context of observing that she participated in the walk-on at Egan's Track which I described when referring to the evidence of Ms Lees, and also attended the Colson lock-on at Webster Hill and the car -dragon and bipod incidents at Riley's Ridge. In that period she was camping at the base camp, to which she had somehow found her way in early January.

340 Concerning the walk-on, the witness gave a reason why she went out the coupe: to see whether there was illegal logging. That was a reason for entering coupes given by others on other occasions. It sounded attractive, but I very much doubt that it represented the truth of the matter, or at least all of the truth of the matter. The incident at Egan's Track is a case in point. Ms Dawson heard a chainsaw at a distance. She continued on into the coupe, with her colleagues and the child. They placed themselves in a situation of danger. She told the logger to stop work. He did not do so. She expected him to stop "because they weren't allowed to log within two tree lengths of people." [183] That was her explanation why a small child was taken into close proximity to timber felling. She walked in after hearing the chainsaw "because I wanted to stop the logger so he would contact DNRE and they would make a report and so, interrupt work." [184]

341 It was her assumption that she could stop logging anywhere by her mere presence in the vicinity. She relied upon it for the purpose of attempting to stop the logging. [185]

342 The conduct to which Ms Dawson admitted had nothing to do with illegal logging, as on an excessive slope. It had everything to do with stopping work.

343 Asked why she wanted to interrupt work she gave a version of the justification to which I earlier referred:

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345 A video-tape of this incident, as I said earlier, was put in evidence. [188] It plainly depicts the working-out of some of the characteristics of protest action which I have earlier identified, and of which Ms Dawson and Ms Lees were evidently aware.

346 Turning to the Webster Hill lock-on, Ms Dawson said she was told the previous night, when at the base camp, that there was to be some action. The other woman who locked-on with Ms Colson, "Jade", and her partner "Jimmy" - sometimes referred to as "Jimmy Dreadlocks" or "James Norman" - were also at the base camp that night. Jimmy supported Jade at Webster Hill.

347 On Ms Dawson's account, she went to Webster Hill to "have a look at the coupe, to see what was happening." [189] If by that she meant that she did not enter the coupe to support the protest action, I do not believe her. She said that she took no active role in encouraging or assisting the people who were locked-on. But I think it is clear that her mere presence was an encouragement.

348 The witness said she arrived at Riley's Ridge in the early morning of the car dragon incident, having been at the base camp the previous night. She left the area after the car dragon had been dismantled, returning, she thought, to the base camp. There is evidence that dismantling was not complete until after 7 pm. She was there to show that she was opposed to clear-fell logging in that coupe, an important wild life corridor area.

349 In the period she was at Riley's Ridge, Ms Dawson said, she also spent time near a bipod on which a man was seated. She did not support that person, but was not opposed to what he was doing. Photographs showing her in the near vicinity of the bipod, holding a camera in one instance, went into evidence [190]. One of the photographs depicts the ubiquitous Birrell.

350 Shortly after her attendance at Riley's Ridge, it seems, Ms Dawson returned to Melbourne. She travelled back to the Otways on 22 January with Ms Epstein, whom she had met the previous year at Jabiluka. On their journey they picked up a man named Damien McDonald ("McDonald"). He lived at Dean's Marsh. She had met McDonald when he was at Jabiluka. On her preferred account they did not really tell him what they were going to do in the Otways. She said that all they were going to do was some camping. In light of her then-recent activities, I could not take that answer seriously.

351 McDonald, it is convenient to note, travelled to SSP coupe from the base camp on Sunday 24 January. The weight of evidence is that he was driving a van at the time when Ms Dawson was caught between that vehicle and the boom of the gate to SSP coupe that day. He was uniquely qualified to say what he was doing at the critical time. He was also in the camp at SSP intersection throughout the week. He was, from a legal as well as a literal perspective, in the plaintiffs' camp. He was not called as a witness.

352 The chronology given by Ms Dawson of her initial visit to the Otways, her journey to Melbourne, and her return to the Otways, was somewhat doubtful. I think that nothing turns on that. It is the occasion, however, of introducing mention of an incident which occurred in Beech Forest and which involved the witness and Flannigan.

353 That an incident occurred is certain. Clear also it is that it happened before Ms Dawson returned to Melbourne; and that Ms Dawson was then in the company of a man named Chris Reynolds, who was not called as a witness.

354 In short, Ms Dawson gave evidence that she was using a public telephone box in Beech Forest to call her sister in Queensland. A number of people came from the hotel which was on the opposite side of the road. Flannigan took the phone out of her hand and said that if he ever saw her again he would kill her. She ran and jumped into Reynolds' Kombi van, on which there were "hippy stickers", and they drove off, chased by Flannigan. The burden of her evidence was that she was frightened by the incident, and that this affected her during SSP week, Flannigan at times being at SSP intersection.

355 Flannigan gave a very different account. He was going home from work. He was by himself. It was his practice to stop at the phone when he got out of the forest and ring his partner in order to let her know that he was well. This day he intended to do that. He went to the phone box. Two people were in it. He realised soon enough that they were not on the phone, they were just there to annoy him. He asked to use the phone, and Ms Dawson told him to "fuck off". After a while they left the phone box. He made his call. He began to cross the road to buy a couple of stubbies. He heard the vehicle approaching. It came very close to him and its rear vision mirror struck him. He finished up on the ground. He made no threat to kill Ms Dawson.

356 Flannigan said forthrightly, vis-à-vis the plaintiffs' presence at SSP intersection

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357 It may be, as he claimed, that at SSP he wanted nothing to do with the plaintiffs and stayed right away from them. But I think it is likely that if one or two protesters had caused him upset when he wanted to use the phone, he would have responded.

358 In the event, I do not accept in full either his version or Ms Dawson's version of the Beech Forest incident. I think it is likely that he did want to use the phone, and that he was then by himself. I think it likely that Ms Dawson had been using the phone and that she and Reynolds between them saw an opportunity of taunting Flannigan, who is not, by the way, a big man. I think that when they did so, probably Ms Dawson taking the lead, Flannigan responded; and that he probably threatened to kill them, rather than Ms Dawson, if he saw them again.

359 Neither version of the departure of the vehicle is free from problems. Further, there are other aspects of the evidence of each of Ms Dawson and Flannigan which I do not accept. In all, it seems likely to me that in the 30 seconds to a minute that it took Flannigan to make a quick call to his home, Ms Dawson and Reynolds had gone to the Kombi van and had prepared to set off. When they did set off, they had to drive past Flannigan. By that stage he was walking onto - not off - the road. He took the opportunity to move very close to the van, as if to threaten it. He was clipped by the left rear view mirror. He was not knocked down.

360 Whether Ms Dawson was put in fear by the incident, that fear operating on her during SSP week, is a separate question. The fact is that she returned to the Otways within about a week, went back to the base camp, went scouting on 24 January, set up camp at SSP despite the incident, and remained at the camp despite the car window breaking episode that night. Furthermore, she stayed at the camp when, after the arrival of the loggers, including Flannigan, there was on any view an opportunity to leave the area. She did not take that opportunity, notwithstanding that, in addition to the circumstances just mentioned, she gave evidence of an intention at the time to visit Tasmania.

361 Finally in connection with the question of being put in fear, this may be said: on 24 January and during SSP week Ms Dawson wore a vest which had on it a patch depicting a monkey wrench and the words "defend the wilderness". She gave evidence that she did not agree with what the patch said; and that she kept it covered over. The message conveyed by the patch, as she knew, was that the forests could be protected by "monkey wrenching" - that is, disabling machinery.

362 In fact Ms Dawson did wear the vest with the patch uncovered both on 24 January and on occasions during SSP week. Whether or not she agreed with the message conveyed by the patch, then, she wore and displayed in the relevant period a vest on which there was a message which was likely to be very offensive to loggers. Accepting that she did not then have many clothes to wear, it was nonetheless, I consider, a provocative act; one not bespeaking fear of loggers, and one that could have been avoided by simple means - for example, wearing the vest underneath another garment, or turning it inside out.

363 I should mention, finally, several aspects generally of Ms Dawson's evidence. First, there was almost no spontaneity in it. In almost all instances she paused before answering. Only in two or three instances throughout her evidence did she exhibit any animation. She gave the impression that she was weighing her answers before giving them; but she was different to McFadzean, because his answers in cross-examination contrasted sharply with his answers in examination and re-examination.

364 Second, whilst I consider that Ms Dawson gave honest answers about some matters where her colleagues did not, a considerable number of her answers simply could not be accepted; and I cannot imagine that she believed in their truthfulness. I have already given a number of instances.

365 Third, whilst Ms Dawson gave the impression, in evidence, that she and bad language were unlikely to be well acquainted, I am absolutely confident that this was not the case; and that she directed bad language to loggers both on 24 January and throughout SSP week. Some of the loggers, indeed, seemed somewhat in awe of her vocabulary; and I do not think that their evidence in that connection was feigned. This bears on the likelihood or otherwise of Ms Dawson being affronted or put in fear by bad language directed against her.

Bowles

366 Bowles, a thin, bearded man who gave his current occupation as home duties, was a very experienced and committed forest protester as at January 1999. He was known to McFadzean through forest protests as "Ginko", and I think to Ms Calvert as the man from GECO [192]. At times, for amusement as he said, he used the name "Eddie Knotts".

367 Bowles was another of the plaintiffs who had been to ConFest. He had travelled there from East Gippsland, where he had lived on and off for about five years. Evidently he had engaged in forest protests in that area over the years. It was there, he said, that he had met McFadzean. That summer he had engaged in a few protests in the Goolangook area, including a lock-on in what turned out to be an abandoned saw mill.

368 As to lock-ons, Bowles disclosed extensive experience. He described different methods of locking-on, different devices. He gave evidence of "a little get together" at a property in New South Wales, years ago, where there was an informal workshop about lock-on techniques. He had himself locked-on four or five times, he supposed. He had seen many other protesters locked-on. He knew people who had built lock-on devices and taken them to blockades. In his experience it often took many hours before appropriately trained police attended. No one except such persons were allowed to dismantle a lock-on. He gave evidence of seeing, I add, a couple of lock-ons at the Mt Sabine base camp [193].

369 At ConFest he spoke with "Jimmy", the man whom I have earlier mentioned. Jimmy told him that they needed help to save the Otways forests. He also told Bowles, in effect, that the battle was winnable there. Bowles agreed that "of course" they needed people with experience and expertise to help with the campaign; and that he was such a man [194].

370 At ConFest, also, Bowles saw an Oren stall. There were a number of leaflets which explained that there was an Otways campaign that summer and which invited people to come down and join in. A photograph of the injured Whitehead was displayed.

371 So Bowles went to the Otways, around 4-7 January. He said that a lot of people were heading from the festival to the Otways. On 24 January he was at the Mt Sabine camp, which he described as "basically the base camp for our actions" [195]. That day he went scouting with Ms Lees. They returned to the base camp. In consequence of Ms Dawson returning there and informing them of an incident at SSP coupe, he went to SSP intersection. Of this, more later.

372 Bowles was uncertain about some of his movement in the Otways up to 24 January. It appears that he slept at various places including the base camp, camps at Riley's Ridge and California Redwoods, on one occasion at the Oren office, and on another occasion at Deering's home. The various camps were used by other protesters.

373 He went to the Oren office to sleep and to eat. He thought that he had invited himself there, asking where it was.

374 I have mentioned Deering before in the context of his home being a "safe house" for protesters in the summer of 1998/9. Bowles gave evidence that he had met Deering two years earlier when he had been involved in the "Don't wipe your bum on the Otways" campaign. That was a campaign of opposition to the Kimberley Clarke company using woodchips sourced from Otways timber to make paper products. The campaign succeeded, Kimberley Clarke announcing in 1998 that it would no longer source wood chips from the Otways. I mention this because, according to the plaintiffs' case, one of the reasons why the loggers acted as the plaintiffs alleged they did during SSP week was anger and frustration because the protesters were achieving their ends.

375 Certainly, before 24 January, Bowles was twice at Riley's Ridge on days of direct action. He was also at Webster Hill on the day of Ms Colson's lock-on, and present at the incident involving Ms Nelson's vehicle and a logging truck near the base camp.

376 At Riley's Ridge, over two days, he locked-on under a vehicle which was parked across the roadway. It had been agreed with the driver of the vehicle that it should be placed across the road to prevent trucks and other vehicles gaining access to the coupe. Many protesters were present at this direct action. Whilst he was locked-on a man was seated in a tripod, which was attached to the car the subject of the lock-on. In the course of the two days he unlocked at one stage -in the middle of the night of the first day. Probably the days of this lock-on were 11 and 12 January.

377 Bowles said that he finally unlocked when told that he would be arrested. He did so having regard to the fact, as he said with very obvious regret, that loggers had walked past his lock-on into the coupe and (as he could hear) had been working.

378 During the incident Bowles had a buddy. If he was to be unlocked by the police she was to take photographs just in case something went wrong, as evidence in the case of injury.

379 Bowles said, in connection with this incident, that there were different methods of helping to save forests. It would involve the DNRE and the media. It was "a bit of a stunt, I suppose you would call it" [196].

380 This incident, some of which appears on video tape recorded by Birrell, [197] reveals the working out of a number of the characteristics of protest action in the Otways. The chronology illustrates the extent of delay in remedial action by police and/or DNRE officers which was a feature in other instances of protest action. It also illustrates that Bowles was apparently untroubled by a long period of discomfort in what should be regarded as a stressful situation.

381 The days of his lock-on aside, Bowles was at Riley's Ridge on the day of the car dragon incident. He acted as a buddy (he said "supporter") of Tom Crook, the man inside the car, a man whom he knew from East Gippsland. He was at the site all day. He had been at the base camp the preceding night. There had been discussions about what was planned.

382 The way in which Bowles carried out that role (which on this occasion included a liaison aspect), speaking with police and DNRE officers, is shown in a DNRE video tape. [198] Bowles' conduct on that occasion may be compared with McFadzean's conduct at Webster Hill the day before. Bowles agreed, at different points in his evidence, that features of protest action were scouting, discussion [199], ascertainment of who was to participate in an action, and their roles, making arrangements for contacting the media, organisation of transport, arranging for the presence of cameras and video cameras. He also emphasised the importance of individual decision-making by protesters. Speaking of Oren, he said it was like a communications base

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383 Finally, at this point, I should make some general observations about Bowles and his evidence. He was an extraordinary witness. I have no doubt that some of the evidence he gave about the organisation of protest actions were truthful. I accept also that he perceived Oren's role to be as he described it. But his evidence alternated, both with respect to matters already discussed and in connection with other matters, between clear recollection and no recollection at all, where there was no apparent reason for any distinction in ability to recall. He generally acted with propriety in giving evidence, but seemed to be quite an arrogant man. He gave a number of answers in cross-examination which I thought were deliberately flippant. [201] He got quite angry on one occasion and banged the witness box. [202] Quite obviously, he got a number of things wrong in his evidence about SSP week. I later conclude that he gave evidence of having conversations in the course of that week which simply did not happen; and that he much overstated the extent and impact of things done by the defendants to annoy the plaintiffs. He did, I add, admit some convictions for what were essentially street offences, mostly related to use of alcohol. I regard those convictions as being beside the point in the context of this case; contrast the circumstances in which Ms Dawson had been previously charged.

Fowkes

384 Fowkes, a man aged 31 [203], is a carpenter and joiner by occupation. In 1999 he was living at Patchewollock, having moved there from Geelong where he had been brought up. His then girlfriend - now his partner, they have children - was Ms Colson.

385 Fowkes' route to the Otways was quite different to many of the other plaintiffs in that he was, according to his evidence, a recent convert to conservation of native forests. That was not the only measure of his difference.

386 As at December 1998, it seems, Fowkes was not in work. That year he had worked as a rouseabout, not in his trade.

387 In late December 1998 he attended ConFest. In fact, he helped set it up, as he had done on previous occasions. He was there with Robert Ure, ("Ure") who in due course drove he and Ms Colson to the Otways.

388 At ConFest he heard from Ure that there was clear fell logging in the Otways. He was shown a picture of the injured Whitehead on a flyer which said they were looking for people to come down and help stop clear fell logging. The flyer said something like "violence in the Otways". It said where to go, and to take camping equipment.

389 He was concerned about clear fell logging. He had not been earlier involved in protesting against it. They went back to Patchewollock, packed, and with Ms Colson set off for the Otways, arriving between 7-10 January.

390 Fowkes' progress through the Otways thereafter has some fixed points and some doubtful aspects.

391 It appears that he and his companions first camped near the Cumberland River, and on the following day attended a rally in a coupe where Birrell showed them a clear-felled area, gave a bit of a talk, said he was opposed to it, and told them that protest action had stopped logging.

392 It is next the case that some time soon after their arrival in the Otways, Fowkes and his companions moved to the base camp. They travelled in convoy with the ubiquitous Jimmy and Jade, who were in the lead vehicle.

393 From this base, Fowkes involved himself in the following actions, not necessarily in chronological order: first, he spent a good couple of hours littering an access road to a coupe near Mt Sabine with branches, rocks and debris, so as to preclude a log truck leaving the coupe for a time.

394 Second, he assisted a man whom he knew only as "Glider" to construct a bipod at Egan's Track. It was apparently suspended by a cable to logging machinery. Glider told him, as must have been obvious, that if the machinery was moved, the structure would fall down; so nobody could move it.

395 Asked the purpose of this conduct, Fowkes said:

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399 Third, he was present on the occasion when a truck was held up after it struck Ms Nelson's car near the base camp. He did not see the collision, but he gave a vivid and exaggerated account of the damage which it had caused.

400 Fourth, he was involved in discussions at the base camp before the lock-on at Webster Hill on 14 January; and he participated in the action that day. He agreed with the action. He was there to support Ms Colson, and to be "a number". This, again, was to show his protest about clear fell logging.

401 The witness said that he meant the action to stop logging from happening. But he denied that it stopped people from earning their income. Upon this topic he gave a series of answers, bespeaking at best ignorance, before finally agreeing that stopping work would have some financial effect somewhere [208].

402 At Webster Hill, Fowkes acted, in my opinion, very provocatively towards DNRE officers; just as he acted provocatively on a series of other occasions before SSP week towards loggers, DNRE officers and police. It is clear that during SSP week, and, I conclude, on 24 January, Fowkes acted provocatively and used much bad language towards the loggers. It was submitted on his behalf, in effect, that his were the actions of a desperate man, affected by the circumstances of his imprisonment. Further, he gave evidence that he abused loggers during SSP week because he was very angry, very exhausted and his temper was at the end of its tether; and because he was scared, and was trying to scare the loggers from taking acts of violence against him [209]. I regard his actions as having been nothing of the sort, but rather as having been entirely consonant with Fowkes' conduct on prior occasions. I gained the clearest impression that throughout his period in the Otways in January 1999, Fowkes if not a man looking for trouble, was certainly a man ready for it .

403 As to the Webster Hill incident, Jimmy produced the lock-on device, but kept it hidden as they walked into the coupe. Chris Wheeler was operating a machine. He was distracted. Whilst he was remonstrating with protesters, Ms Colson and Jade locked-on.

404 Fowkes was cross-examined whether he knew that the lock-on was fictitious, whether he knew the women were not truly locked on, and whether he had lied to DNRE officers in saying that they were locked on. He said he thought that the women were not locked on initially, but that they became locked on sometime during the morning. He also said he had told DNRE officers that morning that the women were locked on. When he was asked whether he thought it was important to be truthful to DNRE officers, he replied "No" [210]. That answer, by contrast with others, was in my opinion truthful.

405 In the course of the lock-on, which on his account lasted some 10 hours - a matter bearing on Ms Colson's hardiness - on a number of occasions Fowkes positioned himself in front of DNRE officers who were attempting to video record the incident, so as to prevent them filming Ms Colson. On one occasion he advised her to "put the hat over your face... this fucking camera man is creating a nuisance". [211] He said he did not want her to be filmed in an embarrassing situation, a difficult explanation because Birrell was also filming, and he had no objection to that. He denied, quite unconvincingly, that his real purpose was to prevent footage being recorded that could be used in a prosecution. His explanation was that he wanted to annoy the DNRE officer because he was a DNRE officer.

406 On another occasion, facing the DNRE officer with the video camera, Fowkes shouted "You dirty cock-smacking cunts", [212] and made a two fingered gesture. His unlikely explanation for this gratuitous abuse was that he was embarrassed about the video camera being on him.

407 Again at the Webster Hill incident, Fowkes objected to a proposed method of extracting Ms Colson from the lock-on. I am not in doubt, though he did not fully concede it, that his objection consisted of shouting obscenities.

408 Other aspects of the Webster Hill incident repay attention, for they bear on the characteristics of forest protest which in my opinion influenced a number of the plaintiffs and throw light on their probable conduct during SSP week. So, there were quite a number of protesters on site. Those locked on had buddies. There was a police liaison person, there was video recording by Birrell, there were still cameras in use, there were threats of legal action by those involved in the protest.

409 As to the last-mentioned, Jimmy told Search and Rescue squad officers who were handling the lock-on device that he called that harassment; whilst Ms Colson made contributions to which I shall later refer.

410 The DNRE video tape of the incident also reveals that there was a good deal of histrionic screaming by the women who were said to be locked-on. At one point a comment is heard likening the protester who cried "ouch" to the boy who cried wolf. Fowkes denied that he was the author of the comment. Whether or not he was the author, I think that it conveyed the truth of the situation.

411 I go to the fifth incident in which Fowkes was involved before 24 January. It occurred at a log landing at Riley's Ridge. He and others went onto the coupe. He walked up to and stood on a pile of logs whilst Wilson was using a log loader. He complained, in effect, that Wilson had not stopped work instantly. He assumed that work would stop as soon as he was seen. It was his understanding that a protester could walk onto a coupe and work would stop. The protester could leave the coupe and work would go on; or else could stay, build a structure, and wait for the arrival of the DNRE and police, in which case work would stop until after the structure was taken down and the protester removed. Inexplicably, given that understanding, he denied that it put a protester in a pretty powerful situation.

412 It was put to Fowkes that he had told Wilson that he and his companions were going to stop Wilson working. His response was

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413 In my opinion Fowkes' evidence about this incident, apart from disclosing provocative conduct on his part, shows what he understood to be the power of his position as a protester.

414 The sixth incident in which Fowkes was involved occurred at Riley's Ridge on 15 January. On that day Fowkes attended, as he said, as a "number" to protest against wood chip clear fell logging in the Otways. Many protesters were there. He denied climbing up onto the car which was part of the car dragon. A photograph [214] shows him sitting on a gate with his feet on the boot of the car. He said he had forgotten. His explanation for climbing onto the car was "because I was sitting on the gate, somewhere to sit". Another photograph [215] shows him lying on the car after it had been cut away from around the protester. When these photographs were taken the police were in attendance, as the photographs show. I have no doubt at all that Fowkes' conduct was deliberately provocative. He, of all those present that day, was the person who was on the car at different times. I do not believe his explanations about those matters.

415 On 15 January, also, Fowkes went into the coupe itself. He saw a tripod or bipod, with a man sitting in it. The man wanted a break, so Fowkes took over.

416 Fowkes' sense of time for events on 15 January was clearly astray. I mention this only because it is consistent with difficulties in his evidence concerning events on 24 January and during SSP week.

417 It may be that Fowkes and others returned to Riley's Ridge some days later. But his evidence about the matter was not definite, and I reach no conclusion in that connection.

418 On 24 January, Fowkes was one of the group of people who went scouting, and who were involved in an accident with Chris Wheeler and others at SSP coupe. Considering his mindset at the time, other than as already described, it seems clear to me that Fowkes' starting point was that illegal logging could be discovered wherever he went. So, he said that the purpose of scouting was:

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419 I should add that he asserted a personal concern to address the "matchstick theory" of forest regeneration in operation. If he did have such a concern, I heard no evidence that either on 24 January or at any time during SSP week he made any appropriate inspection.

420 There is much more to say about the events of 24 January. At this stage I note only that, contrary to the evidence of some other plaintiffs, Fowkes asserted that there was discussion about scouting SSP (coupe) on the evening of 23 January. I consider that his evidence about that matter was correct; and that it was no mere accident that the scouting party arrived at SSP coupe on 24 January. The evidence suggests that not only Oren but one of the plaintiffs had a WUP on which SSP coupe was marked for logging that summer. Moreover, various of the scouters had been to and beyond the SSP intersection within the preceding few months - that is, at the picnic without a permit.

421 Fowkes admitted a number of prior convictions: burglary and theft, break and enter, car theft, cultivation, possession and use of marijuana, drive whilst disqualified, exceed .05, possession of firearms. The relevant charges were laid against him from when he was aged 18 until he was aged 27. As at January 1999 he had been imprisoned once - for a very short time when he was aged about 18. His offending was quite persistent and included crimes of dishonesty. In my opinion his prior convictions do bear upon the question whether his evidence, where disputed, should be accepted.

422 All in all, I consider that Fowkes was a very unreliable witness. I have explained already a number of matters which bear upon that conclusion. I should add that in his evidence he was often an advocate. His cross-examination varied between embroidery and bare denials. Neither was convincing.

Ms Colson

423 Ms Colson is Fowkes' partner and the mother of 2 young children. She is aged 31. [218]

424 Before 1999 she had not been involved in any protest activity.

425 She did not go to ConFest.

426 She went to the Otways at Fowkes' invitation. She did not know for what period she was going. They went with sufficient equipment to stay a month or two. She was not then in employment.

427 She gave uncertain evidence that she thought she was simply going to camp in a beautiful area; uncertain because she acknowledged that Fowkes had said something to her about campaigning against logging, or campaigning with the greenies.

428 Against that background, she entered with apparent enthusiasm into forest protests in the Otways.

429 She picked up some of the necessary argot, including the "message" justification for direct action. [219]

430 She volunteered to be involved in the lock-on, as a person fitting the specification nominated by Jade the previous evening - that is, a person who had not been previously arrested. Asked what caused her to volunteer, she said:

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431 She just saw the lock-on device, and thumb cuffs, on the day of the incident.

432 When they arrived in the coupe, Chris Wheeler stopped work "because we were in the coupe where he was with the log loader." [221] She had quickly learned that work could be stopped just by walking onto a coupe.

433 Ms Colson described the lock-on, and said that it lasted for about 10 hours. Shown a videotape in which, during the course of the day, Jade removed her arm from the metal pipe and waved at the cameraman, who was Birrell, Ms Colson said she had been unaware until seeing it that Jade had not been locked-on. I find it difficult to understand how two people could allegedly be connected by thumb cuffs and one would not know that the other was not in fact connected.

434 In the end, Ms Colson said, the thumb cuffs slipped off her finger when water was run through the pipe under pressure. Angle grinding had not done the job.

435 Ms Colson was taken to Colac police station, charged and released. She returned to the base camp, where there were a number of people to greet and congratulate her - a matter bearing on what I have called the collegiate spirit.

436 In October 1999 the charge was found proved. She was fined without conviction, and ordered to pay compensation. When she gave evidence, 4 years later, she had paid neither the fine nor the compensation.

437 At Webster Hill Ms Colson engaged in what I have already characterised as histrionic behaviour; and she made threats of legal action if she was injured.

438 She agreed that she told Birrell "Don't let them move it"; that she said "Fucking tell that driver that he is going to be liable for everything" and "Even if I so much as get a fucking little scratch"; and that she said to Birrell "Fucking go tell that fucking driver I know the best lawyers in the city." [222] She said that there were no such lawyers, that she had just made it up. She also acknowledged saying to Fowkes: "We are going to fuck them up." She denied that by this she meant DNRE or the logging contractor. That denial, I am sure, was not truthful; though I would include in "all", the police.

439 Ms Colson's recollection of the detail of protest actions which she attended in the Otways was far from complete. So was her recollection of things present, and discussions held, at the base camp.

440 She did recall going to Egan's Track and being with Fowkes when he sat in a bipod for a day and a half. She acted as his buddy. She made sure he got water whenever he needed it.

441 She said there was no discussion at base camp in anticipation of that incident. Speaking of Fowkes, she said: "Paul does what Paul's going to do." [223] It is improbable that the protest action was not discussed in advance. On the other hand, Ms Colson's description of Fowkes seems very close to the mark.

442 Ms Colson gave evidence that the bipod was across the only road into the logging area. Initially she said that she did not know why it was set up there. [224] That was nonsensical, as she evidently came to appreciate; for she agreed that the reason the bipod was placed there was to prevent the passage of log trucks. [225]

443 Ms Colson otherwise demonstrated an incomplete recollection, or grasp, of the detail of this action.

444 Ms Colson was also present on the occasion when protesters halted the log truck after it had collided with Ms Nelson's car. She was one of a number of people who chased the vehicle, and was one of several people who sat on the road in front of it. She denied encouraging anyone to lie down on the road, and claimed not to remember saying "lay down on the fucking road." She did say it, as Birrell's videotape shows. I doubt the truthfulness of her answer in that connection, just as I doubt her evidence that she did not see a number of aspects of the conduct engaged in by her companions at the time.

445 Ms Colson gave evidence initially of not remembering the placing of branches and rocks on the access road to the Mt Sabine coupe. When Fowkes' evidence about that incident was put to her, she said she could recall it.

446 It was her evidence that she did not know that the truck driver whose egress was impeded would lose wages. She did not think of the action causing financial loss at all. It is possible, I think, that the particular witness did not turn her mind to the question. She was definitely not a person of any sophistication.

447 Ms Colson said that she saw Fowkes stand on piles of logs on several occasions in January 1999. Once on 24 January, and once before that. She did not identify the earlier occasion, but I think it likely to have been the occasion at Riley's Ridge, involving Wilson, of which Fowkes gave evidence. She agreed that on that occasion his purpose in doing so was to stop work being performed at the coupe that day, and also so that further scouting could be done.

448 Ms Colson definitely recalled being at Riley's Ridge on the day of the car dragon incident; and of walking one and a half to two kilometres into the coupe to the bipod which Fowkes ascended to give the other protester a break; indeed, of walking up and back a couple of times, [226] on one occasion to ferry a message that the protester on the bipod required water. I mention her walking a distance of at least six kilometres that day because it has some bearing on Ms Colson's evidence that, because of weak ankles, she could not have walked through the bush from SSP Track to Turton Track - a distance of about one and a half kilometres, albeit in bush rather than on a coupe access road.

449 That day, she said, she went to have a look, not to support the person in the car; but she did support that person. She saw Ms Lees, McFadzean and Michael Kennerson ("Kennerson") at that action.

450 Ms Colson said that she was staying at the base camp in the period leading up to 24 January. That day she went scouting. Before that day she had seen maps showing where logging was occurring; and had seen people using such maps when scouting. [227] This evidence bears on the probability that the scouters did not come upon SSP coupe accidentally on 24 January. The witness, indeed, gave evidence that a decision was made on 23 January to scout SSP the next day; evidence which I accept.

451 I have already said enough about Ms Colson, I think, to explain my conclusion that she was not a leader of the protester group - either before or after 24 January. Beyond that, she was not, as I have said, a sophisticated person. She had no experience of protesting before January 1999. She seems to have become intoxicated by the events, and probably by some of the people who surrounded her. She quickly picked up much of the content, physical and verbal, of protest action, and gave the appearance of revelling in using it. Her behaviour on the Mt Sabine Road and at Webster Hill was a remarkable contrast to her presentation in Court.

452 I consider that she gave truthful evidence about many things, I have referred to some of that evidence already; and will refer to more of it later. But I also consider that many of her answers - both with respect to events before and during SSP week - were simply not credible. Again, I have already given some instances; and will give others later on. She agreed that she had spoken with Fowkes over the intervening years. It was understandable that she should have done so. It is not unreasonable to think that her recollection may have been sometimes influenced by his account of events. He certainly gave the impression of being the more dominant personality of the two.

453 I consider also that there were many true gaps in Ms Colson's recollection - both of matters antecedent to and during SSP week.

Ms Epstein

454 Ms Epstein is a single woman now, I suppose, in her mid-20s. She is a photographer and worker with young people in North Queensland. In 1998 and 1999 she was a student in visual arts at the Deakin University Campus at Warrnambool. She said that she had an interest in forests generally at the time. It was evidently an interest that predated 1998.

455 In evidence in chief Ms Epstein gave evidence of witnessing an attack on Matt Reece ("Reece") by Arbuthnot in the vicinity of Garvey Track on 1 December 1998. Also present were the "two Amys", into whose chests Arbuthnot kicked coals from a fire. These women told her about an earlier incident in which a vehicle allegedly driven by Arbuthnot demolished a tent in which, she thought, the two Amys still were. Another incident of violence of which she knew before 24 January was a repeated violent axe attack on Whitehead. She had seen a photograph.

456 Having described those incidents of violence, as she knew or understood them to have been, Ms Epstein said that between 1 December 1998 and 24 January 1999 she was between Warrnambool and Queenscliff, spending some of her time at her family's holiday home in the latter town.

457 On 21 or 22 January she returned, she said, to the Otways, and went to the base camp. There she remained until the Sunday afternoon, when she went to SSP intersection.

458 On the Saturday, she said, some tourists turned up. She showed them information on the Otways - maps, walks, information about logging and wood-chipping - which was at the camp.

459 I have set out this account of events between 1 December and 24 January because in many ways it epitomised Ms Epstein's evidence. It was evidence given with apparent frankness by an evidently intelligent young woman. It was an account which was true in part. It was also evidence which was rendered inaccurate and misleading in a number of respects by being selectively incomplete.

460 When cross-examined, Ms Epstein gave evidence that in mid-1998 she was at Jabiluka. That is of some relevance, at least because it was there that she met Ms Dawson and McDonald. She stayed for a few weeks, and was involved in protests with banners and signs, but not in scuffles. She interrupted her university studies to go to Jabiluka.

461 Turning to the chronology of events in December 1998 and January 1999, it emerged that Ms Epstein had travelled to the base camp from Melbourne, taking Ms Dawson with her. She thought she had been surprised to see Ms Dawson at a friend's home. She told Ms Dawson that she was going to the Otways and Ms Dawson said she would like to accompany her. Ms Epstein did not know for sure why she was going to the Otways, she was going to have a look, to see what was going on. She found out from some people at the friend's home that some protest had taken place. From those conversations she expected there to be a base camp.

462 That evidence was, I am sure, far from the truth. It is improbable indeed that she just chanced upon Ms Dawson at the friend's home. The friend, it turned out, had been with them at Jabiluka. It is inconceivable that Ms Dawson did not give book, line and verse of what had been going on in the Otways so far as she knew of it. Moreover, when she met Ms Dawson at the friend's home, Reynolds was there. He was the man who had been in the Otways with Ms Dawson, and who had been present at the time of the Beech Forest telephone box incident. It is also the fact, as emerged a little later in cross-examination, that the witness already knew that there were to be protests in the Otways that summer. For she had attended the picnic without a permit in October 1998. Further, though this is non-specific, she had known of Oren's existence since chancing to speak to Ms Brewster in Apollo Bay in March 1998.

463 Asked then about visiting Garvey Track in early December 1998, Ms Epstein said she did not see a blockade, and did not actually remember that the track had been blockaded in days prior to that. She claimed not to remember what led her to Garvey Track; nor to have seen Oren's leaflets referring to continuing protest action at that site. Reece had said he wanted to go camping. She did not know that there was anything organised at that time. In truth, she was unable at that stage in her evidence to give any rational explanation for camping where she did in the absence of knowing that a coupe was nearby.

464 That was not, regrettably, the end of Ms Epstein's misleading evidence about her attendance at Garvey Track at that time. It eventually turned out, via a tortuous course of cross-examination, she did know that there was a coupe nearby. She knew it at least because she had arrived at Garvey Track on 30 November and had driven down into the coupe. She had found that work was not then proceeding. On that day, incidentally, there had been a precursor to the attack by Arbuthnot on Reece the following day. Their dogs had been in a fight.

465 Having said it was not necessarily her intention, amongst other things, to hinder logging taking place at that coupe, that "there was not anyone there to actually take part in an action" [228], Ms Epstein recalled seeing debris strewn across the road giving access to the coupe. Her further recollection enabled her to say that she and her companions had put it there; and that it had been done (this was volunteered in re-examination) to hinder logging.

466 I noted earlier that it emerged that Ms Epstein had attended the picnic without a permit. Her evidence in that connection was not credible. On her account she went with McDonald. She could not recall how she found out about the event, or how she found her way to it. She did not know whether the picnic was held down a track off a main road. She did not recall whether it was near Turton Track. The place bore no similarity to SSP Track. She went to a clearing. She did not know how long she stayed. She missed a lot of the discussion. There was a speaker, but she did not know who it was, or even the sex of the speaker. She did not remember what she heard being said. She did not have a clear recollection of what the event was about, though she thought there were areas to be zoned so you could not enter them without a permit. She could not recall, in essence, anyone who was there except Birrell.

467 Further as to the events of December 1998 and January 1999, Ms Epstein initially denied, then recalled, that she had been to ConFest. She had seen the photograph of Whitehead, she thought, in a tent offering information about forestry. She thought it might have been a Goolangook tent. She knew Goolangook was in East Gippsland. She knew that, she said, because she was Victorian, "geography knowledge." In view of the fact that Goolangook had been for years a site of forest protest action, and bearing in mind her reference to a "Goolangook tent", I do not doubt that this answer was disingenuous.

468 Ms Epstein said that she travelled to the Otways despite being troubled and fearful because of the attack on Reece. She was planning to stay for a couple of days. Her purpose in being at the base camp was "camping in the Otways and lending a hand to the anti-logging movement" [229].

469 Ms Epstein gave evidence of going out on a scouting trip, driving around the Otways. Her evidence showed that she understood the purpose of scouting, just as her evidence about her activities at Garvey Track showed familiarity with a technique of direct action.

470 Speaking generally, her evidence about the scouting trip strained belief beyond breaking point. Essentially, on her account, she did not know where she was going, where she went, why she did not get lost, or how she found her way back to the base camp.

471 Ms Epstein's reference to the arrival of "tourists" at the base camp was essentially misleading. The people who arrived were evidently conservationists, not tourists in the sense of being trippers [230]. This is a small matter, but it fits a pattern of evidence given by Ms Epstein which I consider was demonstrably unreliable.

472 Ms Epstein travelled to SSP intersection on the afternoon of 24 January. She remained at the camp which was established there until 29 January. She gave a good deal of evidence of events and conversations which she said occurred during that week. She gave evidence in a number of instances of witnessing events and of participation in conversations which were "one on one", or in which her evidence alone stood in support of the plaintiffs' case. There is a question whether Ms Epstein's evidence should be accounted reliable, particularly insofar as her accounts were disputed. I say "particularly", because in some instances the only other alleged participant did not give evidence. Of course the answer to that question involves also consideration of the likely reliability or otherwise of the evidence of the other person involved where that person gave evidence. But the fact that Ms Epstein was shown to be an unreliable witness when it was possible to investigate her evidence closely does bear upon whether her evidence should be accepted in respect of matters of the kind which I have described.

473 This should be added. In saying that Ms Epstein was shown to be an unreliable witness in some matters, I have thus far said nothing about an incident which occurred at No. 9 coupe in February or March 2000. On that occasion Ms Epstein was in a coupe whilst another man, "Possum", was in a tree sit. Cross examination about the incident was at least pertinent to the question what distress Ms Epstein may have suffered in consequence of the events of SSP week, and how long any such distress lasted.

474 At one level, what emerged in cross-examination was humorous, for it appears that DNRE officers and police then present believed - contrary to what Ms Epstein knew to be the case - that the tree sitter could not understand or speak English, in which circumstances Ms Epstein was called on to act as an interpreter to and from Spanish. She claimed to have faithfully translated what she was asked to say to the tree sitter; and also his responses. She gave an account of what she had said. She claimed not to recall, or denied saying, certain things that were put to her.

475 Unfortunately, from her standpoint, a DNRE video tape was made of the incident. It showed, I consider, that she was far from intimidated by being in the presence of police and DNRE officers in the forest - witness some of her language and her middle-fingered gesture to the cameraman. Beyond that, it seems very likely (though there was some debate as to the precise translation of what she said) that Ms Epstein's translation of matters that she was asked to tell the tree sitter was considerably and intentionally inaccurate, her translation including some pithy descriptions of the DNRE officers/police. That also bears upon the existence and extent of her distress in the particular circumstances - she gave evidence that the incident rekindled the same. In addition, the untruthfulness of some of her evidence, is another matter touching her credibility as a witness.

476 I have not reached the conclusions which I have expressed about Ms Epstein's credibility lightly; for in many ways she presented as an intelligent and engaging witness. But I can find no way out of the credibility problem which she created.

Oren

477 I have mentioned Oren many times when referring to the plaintiffs' evidence thus far. There is not a great deal more than need be said about it. Evidently its leading figures - Birrell, Whitehead, Ms Nelson, Ms Brown and Tipler - had a considerable presence in the Otways forest protest movement.

478 It is unnecessary to debate whether Oren had a formal hierarchical structure. Certainly it was a rallying point for protest. Its publications, generally of a quite crude propagandist kind, and, in light of evidence which I heard, at times frankly dishonest, exhorted action. Birrell, one of its leading figures, seems to have attended most protest actions, where he filmed and photographed.

479 Oren assumed for itself a great importance. Plaintiffs' counsel at various kinds asserted that Oren, in effect, issued a list of contentious coupes before a particular logging season.

480 Oren evidently had some influence in local politics. The Surf Coast Shire, as plaintiffs' counsel repeatedly pressed during the trial, apparently decided in early 1999 to support the cessation of native forest logging in the Otways. Documents contained in a folder which was passed to the plaintiffs during SSP week confirm Oren's influence in that decision. [231]

481 This should be said: During SSP week there was evidently discussion about possible agreement by Oren to desist from forest protest action that summer. What exactly was said, was disputed. Looking at the situation objectively, there was in my view not the slightest possibility that Oren - by which I mean, really, its leading figures - would enter into any such agreement - even to secure the plaintiffs' release, if imprisonment there was. Those leading figures were committed to the politics of direct action, confrontation, and to gathering support by allegations of loggers' violence towards protesters.

482 Further, to put its name to any such agreement, even as a device to secure the plaintiffs' freedom, if imprisoned they were, would have put a weapon into the hands of the loggers when, as was inevitable, protest action recommenced. For then Oren could have been accused of deceit and hypocrisy. It is really inconceivable that Oren would put itself at such a risk. From Oren's perspective, by which I mean the perspective of its leading figures, much more was to be gained from mass media focus on imprisoned protesters and loggers' violence. That is not to say that Oren would not have signalled a willingness to discuss a possible agreement; likewise McFadzean. For negotiation was part of the protest repertoire, adaptable to the situation at hand.

The Defendants. Terms and Relationships

483 Understanding the defendants - who they were, their working background, their experience if any, with forest protests, their attendance in some cases at what I shall call the VicTree, Colac, Skillshare and Beech Forest meetings - informs, in my opinion, the probabilities of what they respectively believed, did and said on 24 January and during SSP week. So I turn to examine the pertinent evidence.

484 In discussing the individual defendants I will include Ms Calvert, though she was not a logger, and when referring to her refer also to CFMEU. I will exclude reference, however, to Arbuthnot, Brian Wheeler and Benson. I have concluded, for reasons which I shall later set out, that the plaintiffs' claims against each of those men fail.

485 It is convenient to define some terms and relationships at the outset.

486 The VicTree meeting was a meeting held in January 1999 between Ms Calvert and just a few loggers. Ms Calvert was visiting the VicTree Mill in Colac. It had financial problems, and she had arranged the visit in order to speak to mill workers, who were apparently union members. Separately from the meeting with mill workers, she met with the few loggers. At least one of them had asked to speak with her in advance of that meeting taking place.

487 The Colac Meeting was a meeting held in Colac on the evening of Thursday 21 January 1999. It was attended by loggers and many other persons involved in some way in the logging industry. An estimate was made that 200 people attended. It was convened by Ms Calvert. She attended the meeting, and spoke. So also did Robinson, John Rofe, ("Rofe") a senior man within DNRE, Ian Smith MP, and Councillor Billings.

488 The Skillshare meeting was a meeting held on the evening of Saturday 23 January 1999 at the Skillshare building in Colac. It was convened by Ms Calvert. It was attended by a small group only of persons who had attended the Colac meeting. It was sometimes described as a meeting of the Otways Cartage & Haulage Association ("OCHA") or as a meeting of the committee thereof. That association appears to have had a very informal existence. Dent became its nominal president.

489 The Beech Forest meeting was a meeting which began a little after 11 am on 25 January at Beech Forest. It was the immediate precursor to Ms Calvert and a number of loggers proceeding to SSP intersection. It lasted for about 15 minutes and was addressed by Ms Calvert. There were varying estimates of the number of persons who attended that meeting. Probably, some 30 people were present.

490 The following chart sets out the names of the defendants save CFMEU, Arbuthnot, Brian Wheeler and Benson, and identifies those who definitely attended particular meetings, either for all or a part thereof.

[106]

491 It is not quite clear that Nemet attended the same meeting at VicTree as did the other men.

492 Although the allegation of conspiracy was not pursued, it was very much contended for the plaintiffs that the concerted action of loggers which allegedly occurred between 24-29 January was the outcome of the various meetings, most particularly the Colac and Skillshare meetings. Defendants were pressed to concede that a plan of action had been agreed upon, the main feature of which was an intention to barricade protesters in the forest. It was further contended for the plaintiffs, in substance, that various denials by the defendants of things which were evidently said at one or other meeting were false, as were alleged absences of recollection, this telling against the credibility of those defendants as witnesses.

493 It is clear that the various meetings were of some importance. For their part, the defendants asserted that certain things said by Ms Calvert at particular meetings were the foundation for their conduct during SSP week, conduct incompatible with many allegations made by the plaintiffs. It would not follow, of course, from a conclusion that some particular thing was said at one of the meetings, that the defendants in fact conducted themselves in a particular way during SSP week. Neither would it follow that each individual defendant so conducted himself. The latter aspect could be relevant to the plaintiffs' reliance upon action in concert.

494 Later I will consider the course of proceedings at the various meetings. Before I do so I must say something about the individual defendants whom I identified at the outset of this section of my Reasons, and about the relationships between them. I begin with relationships.

495 Columbus Logging was, as I have said earlier, the logging contractor at Riley's Ridge, Webster Hill and SSP. Chris Wheeler may be regarded as the personification of Columbus Logging. That summer he had two teams working. His team comprised himself, Nocera and Nemet. Wilson was the leader of his second team. Its other members were Daryl Babbington and Rodney Light (Light was to start work on 25 January).

496 That summer, as I have already mentioned when recounting some of the plaintiffs' evidence, Chris Wheeler and Wilson had been directly caught up in protest action. Nocera had been directly involved in protest action in the previous season - that is, in the incident at Number 9 Ridge, which involved protesters including Dwan. Of this incident, more later.

497 Immediate personal confrontation aside, it can be said that before 24 January Columbus Logging had been affected by protest action at both Riley's Ridge and Webster Hill, the former on a series of days.

498 Dents Logging Pty Ltd was, as I have noted earlier, the logging contractor at Garvey Track. Dent may be regarded as the personification of that company. That coupe had been subjected to protest action in December 1998. Arbuthnot was employed by Dents Logging from the beginning of the season until about mid-December 1998. Sheppard was a second employee. Dent's father, it seems, also assisted there.

499 McGee Brothers was the logging contractor at a number of coupes in the summer of 1998/99. Wayne McGee was one of the principals of that business.

500 Molloy was also a logging contractor. In the summer of 1998/99, and for a number of years prior thereto, he had been contracting to VicTree.

501 A distinction may be drawn between Chris Wheeler, Dent, Wayne McGee and Molloy on the one hand, and Nocera, Pearce, Sheppard, Nemet and Flannigan on the other. The former were working principals, the latter were employed men. Wilson was also in the latter category, though he was a log team leader. The distinction was reflected in Ms Calvert arranging with men in the former group to particularly assist her during SSP week.

502 The next matter to be noticed is that the logger defendants - contractors and employed men alike - were not union members as at January 1999. [232] Very few of them had ever been member of any union. They were mainly mature men, so it was not a question of not having got around to it. I think that they prided themselves on their individuality: getting out into the bush, working hard in a dangerous job, being paid for their output. Often enough they were in a family succession of timber workers.

503 There are three matters which in my opinion flow from this situation: first, it was not likely that the logger defendants were versed, before SSP week, in either the concept or the language of picketing, particularly as it applied in an unusual factual situation. Second, they were likely to rely on Ms Calvert for guidance in what to do. Third, there was at least the risk that they would not be as disciplined a group as might be expected in the case of a group of union members. In my opinion these matters bear significantly on the probabilities of what Ms Calvert said and did before and during SSP week; and have a bearing on the probabilities of what individual logger defendants understood, said and did leading up to and during SSP week. In the case of Ms Calvert that is so despite her belief that some of those who attended meetings and who were present in the vicinity of SSP intersection during SSP week were union members. [233]

504 Finally before saying something about the individual defendants I pause to make this general observation: as will become evident, the concerns of the logger defendants about forest protests in January 1999 were essentially personal. Their perceptions and their evidence might thus be described as egocentric. But whether that categorisation should be considered comparable with what I have called the egocentric approach of the protesters is another matter; and one about which different opinion might fairly be held.

The Individual Defendants

Ms Calvert

505 Ms Calvert, a woman whom I judge to be in her early forties, was at the time of trial Victorian Branch Secretary of the Forests Division of CFMEU and National President of that Division. In 1999 she held the position of State Secretary and was Vice President of the National Division.

506 The Division has a long history, for much of its time as a discrete Union.

507 In 1999 the branch had about 3500 members, extending from activities in the forests down to the point of merchandising product. It serviced about 350-400 workplaces, of which about half were in the metropolitan area and the rest in regional clusters.

508 At the time, the branch staff included, Ms Calvert apart, a few office workers and five field organisers. During the early 1999 holiday period she was rostered to work in the field of the Otways area.

509 Ms Calvert gave evidence of familiarity with forest protest action, certainly since 1993 and in the Otways since possibly 1995. She had a very clear view about the wiles of forest protesters in the context of what could evolve into legal proceedings. [234]

510 Ms Calvert estimated that in 1998 three-quarters of the time of senior officials in the branch was taken up with regional forest agreements ("RFAs") and forest protests. RFAs were the intended outcome of a process with respect to forest usage in particular areas. The process involved the development of a blueprint and extensive consultation. Federal and State governments were involved. Green groups sometimes participated, sometimes not. By the end of 1998 RFAs had been signed, but there was no such agreement referable to the Otways. The process in that connection was incomplete.

511 Ms Calvert gave evidence that sometime late in 1998 she saw a media release which was in effect a declaration of war with respect to the Otways. Oren was in fact the author of a document which could be so described. It is likely that Ms Calvert saw either a copy of the press release, or a report of it in the regional press. As branch secretary, it is likely that, even if she did not see it at the outset, a union member or branch official would have drawn it to her attention.

512 Ms Calvert said that this prompted her to consult union members and others. She travelled to the Otways in late 1998; and in mid January 1999, although she attended the VicTree Mill specifically for a different reason, she thereafter met the loggers' group at what I have called the VicTree meeting.

513 The reliability of Ms Calvert's evidence was considerably attacked. To this point in her evidence, however, no issue of real dispute arose.

514 These things, however, may be said: First, Ms Calvert embarked upon the events which culminated in SPP week as an experienced union official, [235] holding very responsible positions. She had experience of union-run pickets, for the most part of the "factory gate" type. She had appeared as a lay advocate [236] before industrial tribunals. She knew that many of those whom she met in the lead-up to SSP week were not union members. She knew that if there was to be any response to forest protest action such persons would be involved.

515 Second, given her union background, Ms Calvert must have been aware, before involving herself in the events which culminated in SSP week, and during the events of that week, that what she said and did would be attributed to the union of which her Division was a part. She never suggested in her evidence that what she said and did at the various times was not to be attributed to her union employer. Things which she said, and as well a banner erected by the loggers' side during SSP week, confirm a conclusion that what she did and said should be so attributed.

516 Third, given an awareness that what she did and said would be attributed to her employer, her knowledge that many of those likely to be involved in a response to forest protest action would not be unionists, and her view about the wiles of forest protesters, it is likely that she would have been cautious in what she did and said; for otherwise there was the potential for the union, as well as herself, to become involved in litigation. Such a potential was not far-fetched, quite apart from the fact of the present litigation.

517 Ms Calvert's reliability as a witness, as I noted a moment ago, was generally attacked. The attacks ranged from cross-examination designed to show, in effect, that she had been party either to the destruction or deliberate non-discovery of union documents to an allegation, implicit in cross-examination of other defendants, that she was assisting them in their evidence despite there being an order of witnesses to be out of Court. She was heavily cross-examined about the circumstances in which a possible agreement with Oren had first been raised on 25 January, about a number of incidents which occurred or were said to have occurred during SSP week, and about the contents of press releases which she devised and quotes in newspaper articles which were attributed to her. That is a brief and incomplete survey of the attacks upon her.

518 Ms Calvert's evidence was not free of fault. About some matters, as will be seen, I do not accept what she said. It is clear also that she was not about to be put upon by the cross-examiner. When she wanted to make a point, she made it; and if it took time, then so be it. So she gave many long answers in cross-examination. On the other hand, I do not consider that Ms Calvert's credit was significantly damaged by cross-examination. Like McFadzean, she was experienced in the political process, giving "political" a broad meaning. So she probably weighed her answers more than many other witnesses. But the spontaneity with which she gave answers sharply contrasted with the lack of spontaneity which characterised McFadzean's evidence.

Molloy

519 Molloy is a 45 year old man, married and with at least one son. He has worked in the timber industry for 25 years, both as an employee and in his own business, as a foreman and as a machine operator. He has worked in Victoria, NSW and New Zealand. In 1999 he was contracting to VicTree, working in the Otways. He had begun contracting to VicTree in 1992. More recently he has been contracting to Clear Water Logging. He has worked as a foreman and also as a machine operator.

520 He gave evidence that in 1999 the "green problem" was a concern to him. He had a concern for the community, for those he knew who had been affected by the activities by protesters, and for himself. He had personal experience of protesters probably on three or four occasions from 1992, including that summer. He gave details. [237] The import of cross-examination was that recent instances were quite inconsequential. I do not accept that this was the case, although the incidents certainly could not be equated with what happened at Riley's Ridge and Webster Hill.

521 Molloy is not, I think, an intellectual man. Often he seemed flummoxed by questions. He gave the clear impression that the Court was not a natural environment for him. The reliability of his evidence about events leading up to and culminating in SSP week was considerably attacked. As with virtually every other witness his evidence was not flawless. In respect of some matters, as will be seen, I do not accept its accuracy. I did not gain the impression, however, that he made any general attempt to mislead me.

Nocera

522 Nocera is a tree faller. He left school at 15 and at time of trial had been working in the timber industry for about 21 years, the last nine of them for Columbus Logging. He went to school in Colac and now lives at Kawarren, which is 17 kilometres south of Colac. He is a married man with young children.

523 Nocera epitomised a number of the logger defendants - being a man with little formal education who has apparently lived in the Colac district throughout his life and whose working life has been in the timber industry. Both his language and his conceptual understanding were, I thought, pretty basic. I consider that he had real, not feigned, difficulty in understanding questions which contained language of any complexity. When asked to read something, he read line by line, slowly, with his finger travelling under the line as he read.

524 The witness gave evidence of unhappy contact with forest protesters before January 1999. His evidence included an account of an incident at Number 9 Ridge in February 1998 to which I refer elsewhere in these Reasons, an account which was credible and which he gave with considerable feeling.

525 Nocera knew in early 1999 that there was a broad campaign of protest against logging in the Otways. He knew of the Kimberly Clarke decision. He had a concern that the government might be influenced to stop logging in the Otways, though he thought it would not. He said these various things in cross-examination. But they were, I consider, well-distant from his particular area of concern. His focus was on the day-to-day problem of protester action. He said:

[124]

I earlier referred to his evidence that greenies made him sick; that he hated them.

541 Flannigan's description of the purpose of the Colac meeting fitted his perception of the problem: a lot of protesting had been going on and everyone was worried about going broke, not enough work was going on and too many protests, and the meeting was about what they could do to "sort of work around the protests". [246] This was in fact only one aspect of what was discussed at the meeting. But I consider that it coloured Flannigan's understanding of what was discussed.

542 Flannigan gave some evidence which I do not accept. I have already referred to the Beech Forest telephone box incident. He also gave some evidence of events which occurred during SSP week which I consider was not reliable. In many respects, to the contrary, he was frank in his evidence. I have already given some examples. In some areas where his evidence was erratic - as, for example, what his purpose was when he was at SSP - I think that it stemmed not from dishonesty but from confusion. He was a workman in the bush, who attended SSP when told by his boss, in effect, to be there and to offer support. Overall, he did not present as a witness who should readily be disbelieved.

Chris Wheeler

543 Chris Wheeler is a man, I should say, in his fifties. Like a number of the defendants he is not an especially big man. The mental image of giant axemen took something of a battering when the various defendants came into the witness box to give their evidence. Wayne McGee, and to a lesser extent Molloy and Wilson, were physical exceptions rather than the rule.

544 Wheeler, at time of trial, had been a logging contractor for 35 years. Both in January 1999 and at trial he was both a logging contractor and a farmer.

545 In January 1999 he was contracting to Otway Logging. He had been contracting in the Otways for three to three and a half years. Before that, he had been logging in East Gippsland.

546 Three of the coupes that his company was assigned in the summer of 1998/99 were, as I have said earlier, Riley's Ridge, Webster Hill and SSP. There was a fourth, Blackwood Track. Each of Riley's Ridge and Webster Hill had been subject to protest activity. I have given some detail of it earlier. Wheeler as well as Wilson had been directly involved in some of that activity. Some of the plaintiffs had been involved therein.

547 Wheeler had experienced protest activity earlier. He gave evidence of having known McFadzean from 1994, the latter having set up a blockade in East Gippsland that year. He mentioned also a 5 day blockade at SSP in the summer of 1996/97. The area for felling in that year, it may be noted, was also accessed by SSP Track. That circumstance, together with the site of the picnic without a permit and the arrival of the scouters on 24 January, goes in favour of the scouters' arrival being planned, and not mere chance; to which may be added the fact that Wheeler coupes seem to have often been the subject of protest action. Apart from East Gippsland, SSP coupe in 1996/97 and the coupes subject to action in 1998/99, remember also the incident at Number 9 Ridge in February 1998.

548 Wheeler was definitely not a unionist by inclination. He was, as he said, an employer. But, he said:

[126]

549 Notwithstanding what I am certain is his inclination, Wheeler later joined the Union. He alone amongst the defendants gave evidence of thinking there was an agreement "that if the Union could help us with the protesters we would join the Union." [248] He believed that had been discussed before 24 January. But it was not discussed with him.

550 I do not doubt that Wheeler had an understanding such as he described. I think it very unlikely that he would have joined the Union if he had not had that understanding. It might well be that something was said by Ms Calvert or by another Union official to one or more loggers to the effect that if the Union could assist them, then they should join, or consider joining, the Union. It would be natural that such a thing might have been said, just as it would be natural that such a remark would register with some loggers but not others. Even if no such remark was made, I add, it might be supposed that Union assistance would itself give individual loggers cause to think whether they should join the Union.

551 In the event, a number of the defendants did, as I noted earlier, join CFMEU at some stage after SSP week. Plaintiffs' counsel at times contended, in effect, that Ms Calvert embarked on the course of events that led up to, and culminated in SSP week out of a desire to raise the profile of the Union and to garner new members. Ms Calvert readily agreed that in everything she does she has it in mind to raise the profile of the Union - one consequence of which, no doubt she would hope, would be increased membership. [249] But in my opinion it was not the case that such matters were anywhere near the forefront of what led Ms Calvert and thus the Union to involve itself in the immediate problems of the loggers in the Otways. There was much more to the problems than their immediate impact on loggers. In all those other aspects the Union had important and legitimate concerns.

552 Returning to Chris Wheeler's reference to "joining the devil", I consider that it articulated his prime concern as at January 1999 - that is, concern about safety in coupes. That is not to gainsay that there was also a financial aspect to his concern; whilst I think it is clear that he was also dissatisfied with the speed and adequacy of DNRE/police response. In the latter connection he said that the DNRE never arrested people straight away, and that:

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It would be rare, he said, that a protester was arrested on day one.

553 Certainly Chris Wheeler wanted protesters out of Otways coupes. Like other defendants, I think that he saw a difference between getting protesters out of a particular coupe, which involved dealing with a concrete situation; and getting protesters out of the Otways, which was a long-term wish or objective.

554 Speaking generally, Chris Wheeler impressed as a stolid, determined man. He was not a quick thinker. He took time about his answers. He did not agree with the sense of a question if the question made use of language which was not his language. That said, and whilst I accept a good deal of his evidence upon disputed matters, I think that some of his answers were not truthful. Those answers, for the most part, involved denials made in circumstances where he might have feared that agreement would have harmed his case. His account of parts of his conversation with McFadzean on the journey to Apollo Bay on 28 January is, I think, a case in point.

Wilson

555 Wilson was aged 46 at time of trial. He has worked in the timber industry from the age of about 18. Up to 1999 his main work areas had been Bombala, Eden and Orbost. He began working for Columbus Logging in March 1998 in the Otways, driving the excavator and running the second crew. In January 1999 that crew was working at Riley's Ridge.

556 As at January 1999, Wilson agreed in cross-examination, he was concerned about the actions of green protesters for a number of reasons. He said that the principal concern was "the danger on the coupes to them and us." [251] But he agreed with the cross-examiner that loss of income was also a concern, as was concern that protesters might succeed in stopping native forest logging in the Otways.

557 I think it is likely that Wilson was concerned both about safety issues and income loss, not necessarily in that order. Riley's Ridge had been the site of protest action over a period of time. Wilson had been intimately involved in one incident - that is, when Fowkes stood on a pile of logs whilst he, Wilson, was operating his machine.

558 I think it is improbable that Wilson was significantly influenced in his concerns by the "big picture"; though I think that he would have been capable of understanding it much better than, say, Flannigan or Pearce or Sheppard.

559 The witness gave evidence to the effect that he thought the protesters were winning the media battle. In the context of cross-examination as to whether he read newspaper articles during SSP week he said:

[142]

572 Pearce is, I consider, a simple man whose concerns were pitched at a personal level: the day to day impact of protest action on him and on fellow timber industry workers. It was his evidence in cross-examination, and I accept it, that in 1999 he was not concerned about the future of the industry. He had a sense, which he clearly expressed, that protesters' actions were unfairly operating against loggers. I have no doubt that he wanted something done about it in January 1999; but I am also sure that he himself had no idea what could be done.

573 He was another defendant particularly implicated in objectionable conduct during SSP week according to evidence given by the protesters. He admitted engaging in some conduct aimed at annoying them. He denied other allegations made against him. I later conclude that his admissions did not tell the full story; but that in a number of instances his denials were justified.

574 Pearce, as with other defendants, was a man who in my opinion had a quite limited conceptual understanding of events. I am also confident that he did not understand a number of questions that were put to him in cross-examination. Those matters bear upon criticism of his evidence.

575 It is also the case that in a number of respects Pearce was evidently frank in his evidence. What he said about placing his vehicle across SRR on the afternoon of 25 January is an instance of such frankness.

576 Again, in some instances Pearce gave evidence out of the blue, as it were, that had the ring of truth about it. Two instances were his volunteering that the clutch of his chainsaw blew up, and his evidence that he went off to collect his smoko hut on 25 January.

577 In all, I do not conclude that Pearce was a seriously unreliable witness - albeit that, as I have said, I do regard him as having given untruthful evidence in some instances.

Wayne McGee

578 Wayne McGee was unemployed at time of trial. In 1999 he was a logging contractor in a family business in which his two brothers were involved, and on occasion his father. He had then been involved in the industry, in a whole variety of roles, for about 20 years. He has lived in the Otways area all his life. His family have lived there going back to his great grandparents.

579 In 1999, as is still the case, his family home was at Colac. But during the working week he lived in a house at Weeaproinah. [259]

580 He gave evidence of experiencing the effects of protest action. His evidence showed that they were not always direct. On 25 January, before he went to SSP intersection, he was

[145]

582 So he distinguished between the immediate objective and a wider hope. I accept this evidence.

583 Wayne McGee, it is here convenient to say, was in my opinion one of the best and most reliable witnesses called in the trial. He gave his evidence generally in a clear and straightforward manner. He was well-informed about the subject matter of certain factual disputes pertaining to SSP week, and gave what I consider was decisive evidence about them. He gave far and away the most articulate general explanation of what the loggers did that week, and its purpose. His evidence was not perfect. Neither his memory. He gave evidence about specific incidents which I do not accept. But overall, I consider, the quality and reliability of his evidence was high.

584 McGee gave no evidence specifically directed to the nature of his concerns with respect to protester action. His explanation of what the defendants did during SSP week, and why, however, threw light on his concerns. They evidently focused on the presence of protesters in working coupes, outnumbering loggers; and the impact of protest activity on the earnings of those working in the timber industry.

585 McGee attended the Colac and Skillshare meetings. It was his belief that there had been informal discussions with the Union before the Skillshare meeting, in which as best as he understood it others in the industry had asked about "some assistance with what was going on." [262] That evidence fits in, I think, with Ms Calvert's evidence that even before the VicTree meeting she'd had some discussions with people in the industry about problems then current in the Otways.

Sheppard

586 Sheppard is middle-aged. At time of trial he was a machine operator and log grader, working in the Otways. Then, as in 1999, his home was at Bungaree, where he lived with his parents and brothers. Then, as in 1999, he lived during the week in a caravan park at Forrest. At time of trial he had been working in the logging industry for about 23 years. In the 1998/99 season he was working for Dent.

587 Sheppard is, I apprehend, a very simple man. His lack of sophistication is illustrated by an incident in which, during SSP week, and at the behest of one or more of the plaintiffs, he took out his false teeth, apparently so that he could be photographed in that state [263].

588 Some years before 1999 he had been a member of the former Timber Workers Union. That was when he was working in the Wombat Forest.

589 The witness agreed that he had seen Ms Epstein at Garvey Track on or about 1 December 1998. He did not agree that he had seen Arbuthnot hitting Reece on the head with an axe handle. No such incident, he said, happened in his presence.

590 If the witness made a false denial about that matter it would bear on his credibility. I do not conclude that his evidence was false. The only evidence of the incident was given by Ms Epstein, and she did not clearly place Sheppard at the scene [264].

591 In January 1999 Sheppard attended the Colac and Beech Forest meetings. The effect of his evidence was that he attended the latter because Dent told him that it was being held.

592 He said that he was concerned about protesters in January 1999:

[149]

594 I consider, consistent with this evidence, that Sheppard's concern about protesters and his hoped-for resolution were on a confined canvas. They were limited to the immediate impact of protesters and their actions at work sites and on work. His recollection and understanding of what transpired at the meetings which he attended, and of various events which occurred during SSP week, need to be considered in that context.

Three Meetings

595 I have mentioned four meetings. I will now address the evidence and detail my conclusions with respect to the first three of them. I will deal with the fourth meeting, held at Beech Forest on the morning of 25 January, later in these Reasons.

The VicTree Meeting

596 Ms Calvert's evidence about the Victree meeting was in my opinion reliable. The meeting took place after she had met the VicTree workers. The loggers expressed concern about a number of matters. The matter of greatest concern was increased protest activity in coupes - its financial effect and safety implications. [267] The loggers expressed concern about the inability of DNRE officers to deal with or stop protest activity promptly, this being important when the season is a limited one. There was talk about police involvement. The witness knew that in East Gippsland the police had become pro-active; but in the Otways things seemed to take longer. She understood that there was a resources issue. In all, the contractors whom she met were looking to the Union to do something.

597 Nothing specific came out of the meeting. Ms Calvert said that she would consider the problem, and would talk about it again at some stage. [268]

598 Nemet perhaps met Ms Calvert at VicTree separately. [269] That was certainly his evidence. Others, however, placed him at the meeting which they had with her.

The Colac Meeting

599 The Colac meeting was held, as I have previously noted, on the evening of Thursday 21 January. It was convened by Ms Calvert, who contacted local politicians, DNRE and the police. The politicians were keen to come; not so DNRE and the police. In the end Rofe and Robinson attended. It was submitted, in effect, by counsel for the plaintiffs that Robinson had shown himself to be aligned with the loggers by attending the Colac meeting. I reject that submission. Robinson's evidence about the matter, which I accept, was to the effect that he was reluctant to attend; but that he did so on instructions from a superior.

600 Contrary to the import of newspaper articles that were put to Ms Calvert and other defendants, it appears that a number of issues were raised at the meeting. Clear also it is, on consideration of all the evidence, that although there were formal speakers a good deal was said from the floor in a meeting where emotions ran high.

601 Robinson prepared a report concerning the meeting. [270] I think that it probably conveys the sense of a good deal of what was said; but that the purpose of the meeting was not as confined as is suggested by paragraph numbered 2, that more was said than the report would suggest, that some of the language used in the report is that of the author and not the speaker, and that the report suggests greater formality in decision-making than was in fact the case.

602 Paragraph numbered 2 of the report suggests that there was a single purpose for the meeting - to determine what if any action could be taken to mitigate the effects of forest protest action. Ms Calvert gave evidence, however, that the RFA process was a matter she wanted to, and did, raise. Paragraph 4 of the report is compatible with that being one of her purposes in calling the meeting.

603 It is next clear that more was said than the report would suggest. The report concentrates on what was said by its author and by Ian Smith, MP, whom the author had previously briefed. Understandably so. Evidently, however, it does not contain an account of all that was said by either Ms Calvert or Rofe; and it contains nothing of what was said by Councillor Billings. Indeed, the only reference to Ms Calvert saying anything is in paragraph numbered 3. That leaves the outcome described in paragraph numbered 10 largely unexplained.

604 In fact, compatible with her evidence, I think that Ms Calvert addressed the meeting both about the forest protest problem and the RFA process. As to the former, it is, I think, certain that she used the phrase "peaceful direct reaction" - a phrase highlighted, in italics, in paragraph numbered 2 of Robinson's report. I think it likely that she raised the health and safety issue of protesters entering coupes, and that she mentioned a role for WorkCover in that connection. I think it likely that she referred to the successful use of pickets against protesters in East Gippsland. I think it is certain that she advocated an increased attempt to get the workers' side of the story into the media, and increased lobbying of politicians and councillors. I think it is certain also that she advocated possession and use of video cameras by loggers when they were confronted by protesters in coupes.

605 Ms Calvert denied using the word "barricading" in the context of direct response against protesters. She said that in discussing "peaceful direct reaction" she had spoken of "a range of direct actions in reaction to protest activities, ongoing interference activities." [271] She had certainly spoken about pickets and use of pickets. She denied that SSP week involved protesters being barricaded in. Cross-examined about the range of possible activities comprehended by her reference to "direct actions in reaction to protest activities," she said that it included the use of pickets, more public use of lobbying activity, and rallies.

606 Robinson said that the words "barricading same in" were probably his words. I think that was probably the case; just as I consider that "video-monitoring" was his word. Further, I consider that he put the wrong slant on things by linking, in paragraph numbered 10 d of his report, "barricading" and "video-monitoring".

607 Ms Calvert said further in cross-examination that she did not remember using the term "media war" at the meeting; [272] It is a small issue. The forest industry and protesters were involved in a struggle in which the media was being successfully used by protester organisations - specifically, by Oren in the Otways. From the industry's standpoint, if there was not then a media war, there needed to be.

608 Finally, paragraph 10 of the report suggests, I think, a formality to the meeting that was not present. It is clear that the meeting itself involved much talk; and that it resolved nothing. It is also clear that after the meeting Ms Calvert asked to speak to a number of the logging contractors; and that agreement was reached to hold a further meeting shortly thereafter. The likelihood is that it was a perceived consensus of the meeting that a smaller group should meet to tackle aspects of what had been discussed particularly by Ms Calvert and Mr Smith [273] It is likely that the four aspects set out in paragraph 10 of the report represented Robinson's understanding of the issues which had been discussed at the meeting, which could be expected to be the matters for later consideration.

609 The conclusions which I have just expressed do not conflict, in my opinion, with the contents of a press release issued by Ms Calvert on 22 January. [274] It was full of hyperbole. What else should be expected? It was intended, no doubt, to give heart to those in the timber industry that something was being done to help them; and it was also intended, no doubt, to send a message to protesters that if their activities continued they could no longer expect no response, or an uncoordinated response.

610 Various of the logger defendants, as I have said, attended the meeting. No decision was in fact there taken about a particular response to future protester action. It may be said that mere attendance at the meeting bespoke a particular defendant's concern about protester action; but that needs no confirmation. It may also be said that if a particular witness gave unreliable evidence about what transpired at the meeting it could bear upon his credit. Beyond that, the most that could be said is that attendance at the meeting, and hearing discussion about possible reaction to protester action, could in some measure bear upon a particular defendant's understanding of what was intended by, and what was happening during, SSP week.

611 Against that background I should refer briefly to the evidence of the logger defendants who attended the meeting.

612 Molloy gave evidence that Ms Calvert called for the community to get behind the logging industry. Greens on the coupes were mentioned. It was said from the floor that if the industry died in the Otways, the whole town would suffer. Ms Calvert spoke about being active in the media, the RFA process, and lobbying politicians. She felt that the industry should get more of a media profile. A policeman spoke, but Molloy could not recall his name, or what he said. In cross-examination he said there was no discussion about legislative improvements, and he said that the issue of direct response was not raised. He did not remember the issue of a picket being raised. Video-monitoring was not raised.

613 Molloy was surely wrong in some of his evidence about the meeting. I do not consider that he was untruthfully wrong. He agreed, for instance, with reference to the Skillshare meeting, that the possibility of a picket was raised by Ms Calvert. His understanding of what that involved was imperfect. He had no reason to say that the word was used at one meeting and not another. Further, it is unsurprising that he did not remember what Robinson said. He was looking for help, and nothing Robinson said gave much comfort in that respect. Again, legislative improvements was a topic related, but somewhat at a distance from, the day to day impact of protest action.

614 Nocera said that he remembered being at the meeting. He was pushed to the back, and could not hear very well. He remembered that:

[155]

He claimed, in essence, to have no recollection of who spoke or what was said.

619 There was really no point in Flannigan denying all recollection of proceedings at the meeting if he had some recollection in fact. Many of the things that were said were inconsequential. I am also satisfied that there was truth to Flannigan's evidence about attending meetings "for your presence". On the other hand, I think it is improbable that he did not come away from the meeting with at least the general impression of something having been said about "work(ing) around the protests"; and I consider, in the event, that his evidence did not fully exhaust his true recollection.

620 Chris Wheeler attended the entirety of the Colac meeting. He recalled it being addressed by Ian Smith MP, Councillor Billings, Robinson and Ms Calvert. Later in his evidence he said that someone from the Department might also have spoken.

621 Wheeler gave evidence of having a hearing impairment, specifically apparent when there is a background noise. No medical evidence was adduced in support of him having such an impairment, but I observed him to have apparent difficulty in working out what was said when a question was asked to which there was objection. I would not presume to conclude that in 1999 he was suffering, and that he is now suffering from noise-induced or age-caused sensori-neural deafness, but the problem he described would readily fit partial deafness of that kind.

622 In the event, Wheeler said he heard reference to media action at the meeting; and that he knew the RFA was being discussed. But he claimed to have heard nothing about barricading protesters in, or about video-monitoring. The RFA, he said, was to his understanding the main issue. [279]

623 I consider it likely that Chris Wheeler's account of the Colac meeting was a truthful one. I consider it likely that he only heard snatches of what was said. He could identify who had spoken with some accuracy; that was a matter of observation. It says nothing about whether he could hear what was said. I should add that in my opinion the witness probably assimilated some things, but not others, which he did hear. For example, with reference to the Skillshare meeting, he recalled discussion about a "united front", and about all the contractors coming and supporting a contractor who was blockaded in; but not about picketing. In the case of a man of middle years who had no union background, a recollection of such a kind is not surprising.

624 Dent said that the Colac meeting was about protest activity. His perception of the purpose of the meeting was, in the event, quite confined. He was forthright in his evidence in defining that purpose.

625 He said that he could not recall who spoke at the meeting, that he could not remember any detail of the meeting. I find that surprising in the case of this particular man.

626 On the other hand, the witness admitted, as will be seen, a fair but incomplete recollection of what had been said at the Skillshare meeting. In the circumstances, it makes little sense that he should deny a recollection of what was said at the Colac meeting if in fact he had such a recollection.

627 Wayne McGee said that he attended the Colac meeting. In cross-examination he said that the issue of taking direct action against protesters was not raised; nor the issue of barricading protesters in, so far as he knew. He did not believe video-monitoring of protesters was raised. Doing a better job with the media might have been raised.

628 McGee was another man whom I should have expected to recall matters of particular concern to him which were discussed at the meeting. But again he was a man who admitted a fair recollection of proceedings at the Skillshare meeting. In that connection he did not believe that picketing was discussed; but he did recall discussion of possible protests by loggers.

629 McGee was not asked if he recalled who spoke at the meeting; or if he could recall any topics discussed other than the few topics which I mentioned a moment ago. So it is an open question whether he could have recalled any more its detail. Moreover, as I have said earlier, I am not satisfied that Ms Calvert referred to "barricading protesters in," which was the cross-examiner's language.

630 All in all, despite some doubts, I conclude that McGee's evidence of his recollection of the Colac meeting, so far as he gave evidence concerning that meeting, was truthful.

631 Sheppard gave very limited evidence about the Colac meeting. On his account he arrived late, left early, and only heard, he thought, Mr Smith speak. He did not recall discussion at that meeting about the possibility of blockading protesters in, or video-monitoring.

632 There is no reason not to accept the particular evidence given by the witness. Accepting that he only heard Mr Smith speak, it almost certainly follows that, even if the matters the subject of his cross-examination were raised at the meeting, it would not have been in his presence.

The Skillshare Meeting

633 Ms Calvert gave evidence that in the interim between the Colac and Skillshare meetings she had spoken to Robinson and to Rofe. She wanted to explore what options were available. In the event, nothing emerged, and she went to the Skillshare meeting fairly empty-handed.

634 On her account, Ms Calvert reported to the meeting that she did not see the situation being remedied in the short term. She would take up the health and safety issue with WorkCover. In certain circumstances she would look to run a picket line as she had done in East Gippsland. The location would have to be suitable; and there would have to be a clear understanding that a protocol of the Forests Division of the union must be abided.

635 As to location, any area to be picketed must be away from a highway or well-travelled road; and be on a road which was one-way into a coupe.

636 The protocol had four limbs, which Ms Calvert said that she explained in detail. The limbs, I will not set out her account of their detail at the moment, were these:

s no violence;

s no alcohol;

s clear chain of command;

s obedience to police directions.

637 The witness said she told the men that if a coupe was blockaded she should be contacted. If the circumstances were suitable, a decision might be made to establish a picket. A picket, she said, seemed like the only practical measure. It was a way for workers and their families to take a collective response.

638 Based on the East Gippsland experience, Ms Calvert said, she expected a picket to get the protesters out within hours, or at most one to two days.

639 I am satisfied that Ms Calvert mentioned at the Skillshare meeting each of the things of which she gave evidence. That is so despite the fact that the logger defendants who attended in some instances did not recall, or denied, that some of those things were said.

640 It is clear, however, that discussion at the Skillshare meeting extended beyond those matters. Ms Calvert agreed in cross-examination that the "informal" agenda for the meeting was broadly the four matters set out in paragraph 10 of Robinson's report. She said that she ran through a series of options with respect to each of those matters. Again she denied suggesting that protesters be barricaded in. She said that on this occasion there was little further discussion about video-monitoring.

641 Ms Calvert's account aside, the evidence particularly of Dent and Wayne McGee suggests that a wide range of matters was discussed. [280]

642 Ms Calvert was again taken to her press release of 22 January [281] in the present connection. It foreshadowed a meeting "to fine tune a range of direct action aimed at ensuring work can continue". The witness said that she would not be comfortable calling any press release true. They often contain quite a bit of rhetoric. The particular description in the press release did not really capture the meeting. She agreed, nonetheless, that the potential for use of a picket was discussed.

643 Ms Calvert disagreed that the outcome of the meeting was that a direct action plan would be triggered into action that week if protesters attempted to blockade coupes to prevent contractors from working. It put the matter too definitely. If the circumstances of future protester action fitted a certain template, then the union might authorise a picket.

644 I accept that evidence. I do so notwithstanding cross-examination of the witness by reference to an article in the Colac Herald of 25 January. That article made certain assertions and attributed several statements to Ms Calvert. In doing so it apparently built upon her press release of 22 January. The burden of the cross-examination was that Ms Calvert had stated that the direct action trigger would be pulled in the event of an attempted blockade by protesters. The article did not in fact attribute such a statement to Ms Calvert.

645 I said earlier that I accepted Ms Calvert's evidence as to matters which she mentioned at the Skillshare meeting. One of those matters was the protocol which must be abided if a picket was to be established. It is, in my opinion, highly likely that she mentioned, and emphasised, the four aspects of that protocol; just as it is highly likely that she reiterated them on later occasions. As I have pointed out, Ms Calvert, for the union, was considering involvement - indeed, taking a lead role - in possible action against forest protesters. Particularly having regard to the targets of possible action, and to the fact that many of those involved on the loggers' side would not be unionised, I think it is inconceivable that Ms Calvert would not have mentioned and emphasised the protocol - in the first instance to the logging contractors who were the persons mainly involved in the Skillshare meeting. [282] I have no doubt that she was alive to the risk that protesters might, as she would have it, contrive a situation. That risk could be neutralised if, in the event of protest action by loggers, the protocol was known and abided.

646 It is implicit in what I have concluded that the protocol really existed. I conclude that it did. There was only limited cross-examination to suggest that it did not - although it would have been hard to develop much cross-examination about that topic.

647 Ms Calvert said that the protocol, not in written form, was agreed to by the Forests Division. She knew its aspects off by heart. She said this:

[157]

In my view that was credible evidence.

648 Molloy recalled talk about forming a committee, concern and discussion about occupation of coupes. Picketing was discussed. Ms Calvert mentioned that it had to be in the right situation - so that other members of the public were not inconvenienced. It could not be on a thoroughfare where there was traffic. Ideally there would be one access. No decision was made to establish a picket. Ms Calvert said that it may be an option. Neither Oren nor the names of protesters were discussed. [284] The question of a higher media profile was discussed. He had had no experience of pickets before. Ms Calvert told him how they worked.

649 Molloy's recollection of what transpired at the Skillshare meeting was incomplete; but so far as it went I consider that it was accurate.

650 Nocera attended the meeting. He was not a logging contractor. It seems likely that he attended simply because Chris Wheeler, his boss, told him that the meeting was to be held, and left it up to him whether he attended or not. He gave evidence which was essentially non-contributory . He said that he did not recall mention of an earlier, successful picket in East Gippsland; nor mention of the protocols. I am inclined to believe that evidence. Nocera was unusually animated when saying that he had not heard mention of the former; and it was of no advantage to his case to say that there had been no mention of the latter - assuming, which I conclude, that there had in fact been such mention. Asked if he had a particularly bad memory, Nocera answered in part by saying "I'm not a spokesman." [285] I think that was a rather simple way of saying that he is more a worker than a person accustomed to attending meetings and retaining information conveyed at the same. In this instance it may well be the explanation for his faulty recollection.

651 Nemet attended the meeting. Again he was not a logging contractor, and it is likely that he attended because Chris Wheeler told him about it, and left it up to him to attend or not. He said that he only went along to find out what the basis of the committee was. Setting up the committee had been an outcome of the Colac meeting. He recalled discussions about contracts and money. The "greenies" were mentioned, but "(I)t was mainly contractors' sort of talk." [286] He could not recall, in essence, what was said about the greenies. He said:

[159]

652 Nemet either denied that things were said, or could not recall things being said, which were of no possible harm to his case, as well as things upon which the plaintiffs sought to rely. It is easy to put up a wall of non-recollection. In Nemet's case I think that the wall represents the fact on this occasion. I add that in my opinion his evidence betrayed some general confusion about what was discussed at the various meetings which he attended.

653 In the event, his evidence added nothing to an understanding of what transpired at the Skillshare meeting; but neither does it tend against the credibility of his evidence generally.

654 After the Colac meeting Ms Calvert asked Chris Wheeler to attend the Skillshare meeting and he did so. In the interim he told his men about it, and left it up to them whether they attended.

655 In advance of the meeting he thought that the RFA would be the main issue for discussion, though he hoped that green protesters would be discussed. Also, VicTree had gone into liquidation.

656 According to his evidence, the meeting lasted about one and a half to two hours. There was lengthy discussion about the RFA and VicTree; and also discussion about protesters. In the last connection there was discussion as to how the industry should use the media and politicians. He did not recall picketing coming up, nor rules of behaviour, but there was talk of forming a united front, about all the contractors coming and supporting the one that was blockaded in. As to what should be done, it would depend on the circumstances. Ms Calvert would make that sort of decision. Someone talked about favourable circumstances - a road with little public transport; single access would come into it. It might have been mentioned. The only thing he had said was that his men were getting put under extreme pressure, that it would not be long before someone was going to get killed. Other contractors wanted something done before any of them got hurt.

657 Wheeler's evidence was, in my opinion, accurate as to what he recalled. But it was inaccurate in that it was an incomplete account. In part, I think, it was a matter of him assimilating concepts with which he could readily associate, something to which I have previously referred. It was also, I think, in part a question of him concentrating upon matters which particularly concerned him. At that stage, I consider, his area of concern would have been much more in the formation of a united front, and in what circumstances that might happen, than in a union protocol.

658 The first relevant meeting attended by Wilson was the Skillshare meeting. He went at Wheeler's invitation. He appears to have had no advance intimation of what was to be discussed. In fact, he said, green protesters were talked about; but not by him. He claimed to have no recollection, essentially, of matters discussed in that connection. He first heard the protocol mentioned at the Beech Forest meeting.

659 Like Nocera and Nemet, Wilson's evidence about the meeting involved an assertion of virtual absence of recollection. That meant in turn an asserted absence of recollection of things potentially helpful to the defendants' case, as well as things upon which the plaintiffs would seek to rely. It was an asserted absence of recollection which contrasted with the recollections - though imperfect they were - of the logging contractors. Whilst, as with Nocera and Nemet, I have doubts about the witness' alleged lack of recollection, on balance I think that he was telling the truth; and that, like the other two men, he was at the fringe of, and not involved in, the conversation as it ranged over a number of topics.

660 Dent gave evidence that the meeting discussed some names of the Association, but that the meeting did not give itself a name. It is not a large matter, but certainly Ms Calvert was speaking about the formation of OCHA, by that name, within a day or so after the Skillshare meeting.

661 Dent said that the purpose of the Skillshare meeting was to discuss what could be done about green protesters. Compare the purpose as perceived by Chris Wheeler - an illustration, I think, of different perceptions, rather than of one witness being truthful and the other not.

662 Whilst Dent said that the possibility of picketing protesters was not discussed, he agreed that Ms Calvert had mentioned a previous union picket in East Gippsland. He may have agreed that something similar was one of a lot of options canvassed that evening. A number of options for pickets were discussed - the Surf Coast Shire, the Sandy Feet Café, Last Chance Tours. During the meeting Ms Calvert had mentioned protocols for picket activity. No decision had been reached at the end of the meeting. They went home to think about it, to consider all the options, and they planned to meet again.

663 The pertinent entry in Dent's day book [288], made the following day according to his evidence, tends to confirm that "pickett" (sic) had been discussed in connection with the Surf Coast Shire and the other entities. It also shows that various financial matters were discussed - what Nemet called "mainly contractors' sort of talk". Despite Dent's evidence, I read part of his entry as saying, in effect, that one response to forest protesters would or could be a "blockade back". The message to the protesters must be that they should put their views through the RFA process, that the loggers had a right to work, in safety, without harassment. Read "picket" for "blockade", and I should think that entry was a pithy summary of the loggers' position. The fact that Dent wrote the word "blockade" does not mean, I add, that it was used by Ms Calvert. The probability is that she referred to a picket and to a united front of contractors. The former was what might be called a union term. The latter description would have appealed to the non-unionist disposition of her audience.

664 Dent's day book entry, though adding something to what was recalled of the meeting by other participants, was a relatively short account of a meeting that apparently lasted something in the order of one and a half to two hours. It is therefore, understandably, incomplete. Nothing turns on that.

665 Save in two respects, then, I accept Dent's evidence about the meeting and his day book entry. The exceptions are these. First, he said that the word "blockade" where first written in his day book referred to a protesters' blockade; but I think, as I have said, that it was reference to a retaliatory blockade.

666 Second, though this may simply be a matter of differing perceptions of people who attended the meeting, it is likely that OCHA had assumed its existence by that name by the end of the meeting.

667 Wayne McGee gave evidence that a "whole range of things" was discussed at the meeting - writing to members of parliament, changing legislation, all sorts of options, everything they could possibly do to resolve the situation. There was mention of protests being mounted, possibly, by loggers; and in that connection something was said about no violence, no alcohol and obeying the police, and Ms Calvert being in charge. They were conditions of union involvement. As he understood it the position reached was that:

[161]

668 McGee said that neither blockading protesters nor barricading them in was discussed. Nor did he believe that picketing, or the desirable physical features for a picket, were discussed. I consider that he was correct in respect of the first of those matters and wrong in respect of the second of them. But the substance of his evidence, founded no doubt in his perception of the importance of what was said and decided, was correct.

SSP Coupe; and geography

669 Before going to the detail of the evidence about events which occurred on 24 January 1999 and during SSP week, I should describe SSP coupe and say something about local geography which figured in the evidence.

670 SSP coupe lies east of SRR. That road, in the pertinent area, runs generally north and south. [290] It is a public road, has a gravelled surface of about three metres or so in width, and a verge of varying width on either side. The verge on the western side of SRR both adjacent to and immediately south of SSP intersection is quite wide - substantially more than the width of a sedan or utility vehicle.

671 The small township of Beech Forest is about seven kilometres generally west of the intersection of SRR with the Beech Forrest/Mt Sabine Road, which at that intersection becomes Turton Track. I will call that intersection, which is north of the SSP intersection, and which assumes a "Y" rather than a "T" shape, "Turton Track intersection."

672 SSP Track intersects with SRR from the east. The intersection is somewhat more than a kilometre south of the Turton Track intersection; but not a great deal more than that [291].

673 In the vicinity of SRR, SSP Track is of the order of three metres in width. It is unsealed. Travelling east, it soon degenerates into a two wheel track. It has a verge on either side. At the south east corner of its intersection with SRR the verge is quite wide. That is where the plaintiffs set up their camp. The northern verge of SSP Track in the near vicinity of SRR is narrow. Then the land rises and there is forest, which stretches away to the north.

674 Some 75 metres east of SSP intersection there is a gate. On the morning of 24 January 1999 it consisted of two metal posts and a metal boom attached to one post that could be swung across the gateway, fitted between two lugs, and padlocked.

675 SSP coupe was accessible to vehicular traffic only by SSP Track.

676 The coupe was on Crown land dedicated as Reserved Forest pursuant to the Forests Act 1958. [292] SSP Track and the land for 10 metres on either side thereof was also Crown land so dedicated.

677 Exhibits 77, 76 and 71 show the steps whereby the coupe was designated, and its location. In broad, the situation is that in 1995 the Secretary of the then relevant Department entered into a contract with The Otway Logging Company Pty Ltd ("Otway Logging") for the provision of services which included the harvesting and delivery of log timber from the Otway Forest Management Area. Otway Logging engaged Wheeler Bros Logging Company Pty Ltd (which later became Columbus Logging) as a sub-contractor to perform some of those services. The services were to be provided in a "coupe", defined in the head contract [293] as "the area delineated for harvesting in a coupe plan and appearing in the Wood Utilisation Plan". "Coupe plan" was in turn defined to mean:

[163]

678 Next I should refer to Exhibit 76. It is the relevant coupe plan, and identifies the coupe as 07 225 507 04. Note the reference to the coupe being part-logged in 1996/97 as 07 225 507 02.

679 Now I go to Exhibit 71, an exhibit tendered through Fisher. The first page of that exhibit is a copy of the coupe map for the 1998-99 season, the season here relevant. The third page is a copy of the relevant wood utilisation plan .

680 Arising out of examination of Exhibit 71 [295], evidence given by Fisher pertaining to it, and to a little evidence given by Chris Wheeler, these things may be said:

s First, page one shows SSP Track entering from the left as a series of dotted lines. The direction of the track is somewhat south of east at the outset, then essentially south.

s Second, page 1 shows an intersection between SSP Track and what Fisher called an "in-coupe track". The intersection is a short distance left - that is, west - of a circle enclosing the capital letter "L".

s Third, the symbol made up by a circle and the capital letter "L" depicts a so-called log-landing, an area created by the logging contractor, generally after discussion with a Departmental Officer, to which area logs are brought for treatment and for cartage out of the coupe.

s Fourth, page 1 shows an area logged in 1996/97, in which two log-landings are depicted. According to Fisher, the amount of marked area actually logged would be more than 90 percent. That evidence was not challenged in cross-examination. I consider it probable that in fact logging was of such an extent.

s Fifth, page 1 shows an area in an adjacent coupe, to the north east of the area logged in 1996/97, which was logged in the 1997/98 season. Fisher's evidence as to the amount of the marked area that would be logged extended to the area which was logged in the latter season. Again, I consider it probable that the logging was in fact of such an extent.

s Sixth, page 1 shows, marked in yellow, the area which was to be logged in 1998/99. According to Chris Wheeler, whose evidence I accept about this matter, work began in that coupe on 18 January 1999; and the incident on 24 January 1999 commenced at the western of the two log-landings that are shown in the 1998/99 coupe.

s Seventh, the WUP at page 3 depicts SRR and the SSP coupe which was to be harvested in the summer of 1998/99. So does the map at page 2 of that Exhibit. Each has a scale. It can be seen that the western boundary of SSP coupe was in the order of 850-900 metres, in a direct line, from SRR. Allowing for the fact that SSP Track and the in-coupe track in combination did not take a direct line, and that the western log-landing was well east of the western boundary of the coupe, it is reasonable to think that such log-landing was not less than 1250 metres by track from SRR.

s Eighth, by reference to page 3, which appears to show SSP Track as a series of dotted lines [296], I estimate that the distance from the intersection of SSP Track and SRR to what was called in evidence "the top landing" - that is the western-most log-landing depicted on page 1 - was a little more than 500 metres.

681 Turton Track winds its way east of Turton Track intersection, eventually intersecting with the Forrest/Apollo Bay Road. As the crow flies, the distance is about five kilometres. But the twists and turns in Turton Track, another unsealed road, means that the distance required to be travelled would be considerably further.

682 The distance between SSP Track near its intersection with SRR and Turton Track near where the latter intersects on its north side with Coutts Road, this being not far east of the Turton Track intersection, is almost certainly less than 1.5 kilometres as the crow flies. From SSP Track near SRR to Turton Track further east - say, just north of the East Branch of the Barham River - is probably about the same distance. But then contours come into play. Speaking generally, there is a strip of relatively flat land which runs parallel to and east of SRR as that road proceeds north of SSP Track. There is a sharp fall away from that strip to the east. Again, speaking generally, and assuming a take-off point from SSP Track say 200 metres east of SRR, the land falls away to the north before rising again as it approaches Turton Track.

683 What I have just said provides an incomplete description of pertinent terrain. It partly describes contour; and it does not describe afforestation. It will be necessary to refer to the evidence of those who travelled from SSP Track to Turton Track - in one or both directions - during SSP week. That evidence bears upon the question whether any of the plaintiffs was falsely imprisoned. Counsel for the plaintiffs submitted, in effect, that evidence given by his clients and others, to the effect that the journey was one of extraordinary difficulty, had not been challenged. Defendants' counsel submitted to the contrary. It is enough to say, for the moment, that the actual distance by foot from SSP Track to Turton Track would have been something in excess of 1.5 kilometres unless the traveller moved along the strip of relatively flat land parallel and fairly close to SRR.

684 Approximately 2.5 kilometres north east of the intersection of Turton Track and the Forrest/Apollo Bay Road is Mt Sabine and the Mt Sabine picnic area. The picnic area is where the so-called base camp was established in the summer of 1998/9.

685 From the intersection of Turton Track with the Forrest/Apollo Bay Road to Apollo Bay is a distance, as the crow flies, of about 12.5 kilometres. It may be a little further by road. There is, I should add, more than one way to travel from SSP intersection to Apollo Bay.

686 A person may journey to Beech Forest from SSP intersection either by travelling north along SRR and west along the Beech Forest/Mt Sabine Road; or else by travelling south along SRR and looping back to Beech Forest via Horse Paddock Road and Aire Valley Road. The latter route is certainly some kilometres longer; and it appears to involve more winding road [297].

687 Riley's Ridge coupe was situate off Riley's Ridge Road, which in turn intersects with SRR some five to six kilometres south west of SSP intersection.

688 Webster Hill coupe was situate to the north of the Beech Forest/Mt Sabine Road, west of Turton Track intersection.

689 Kawarren, where Nocera and Flannigan lived, is generally north of Beech Forest. According to the evidence, travelling time from the SSP intersection to Kawarren was in the order of 25 to 35 minutes [298].

690 Kawarren is some 17 kilometres south of Colac, where a number of the defendants lived at the time. There was not, I think, any precise evidence of the time taken by a journey from Colac to SSP intersection, but having regard to evidence of Nocera and Flannigan, and allowing for the distance between Kawarren and Colac, I think that a reasonable estimate would be 45 minutes.

691 Wayne McGee, as I have said, lived at Weeaproinah during the working week, though his home was at Colac. Weeaproinah is about five kilometres west of Beech Forest on the Lavers Hill /Beech Forrest Road.

692 Sheppard, as I have said, resided during the working week in a caravan park at Forrest. Forrest is on the Apollo Bay/Forrest Road, some 14 kilometres north of the intersection of Turton Track with that road. Travel from Forrest to SRR would involve travelling south along the Apollo/ Bay Forrest Road and then west along Turton Track.

693 Dwan resided at Hordern Vale, which is almost due north of Cape Otway. It is a considerable distance south west of the SSP intersection - something in the order of 22 kilometres using the route described by Dwan in his evidence.

Sunday 24 January: Events at SSP coupe and the gateway

694 On Sunday 24 January 3 vehicles containing 9 protesters travelled from the base camp to SSP Track. The vehicles belonged to Ray Donato ("Donato"), Robert Ure and Rob Mills. The latter two men, it will be recalled, were friends of Fowkes. Ure had driven Fowkes and Ms Colson to the base camp; and had been with them at protest actions. Donato was, it appears, a forest activist.

695 The occupants of the vehicles were Ms Jackson, Fowkes, Ms Colson, Ms Dawson, Donato, Ure, Mills, McDonald, and a man identified only as "Nick". McDonald was the man whom Ms Epstein and Ms Dawson had picked up at Dean's Marsh. "Nick" was identified as a friend of Mills.

696 Donato's vehicle was a white, cabover, van. It is often depicted in photographs of the scene at SSP intersection during the week. [299] Ure's vehicle was a white Mitsubishi Lancer Sedan. Mills' vehicle was a blue Toyota Corolla hatchback.

697 When the vehicles arrived at SSP Track they turned into the Track and went through the gate, which was open, to what I have called the top landing. That was, it will be remembered, about 500 m from the intersection of SSP Track with SRR.

698 The protesters then left their vehicles and walked into the coupe. Chris Wheeler was working at the time, operating an excavator at the western log landing in the 1998/99 coupe as depicted in the coupe map. [300] He was debarking logs. He was vigorously cross-examined with a view of showing that he should not have been doing that work that day. He gave evidence that he was entitled to do so. I consider that his explanation at least stretched the ambit of his contractual right to work. Perhaps it did so beyond breaking point. That he should have been so working, for working he was, may be said to evidence his willingness to breach a contract. It could not be excused only because his work had been interrupted in recent weeks. It is a circumstance, however, which in my opinion does not bear at all upon what happened at SSP coupe that day.

699 The distance walked by the protesters from the top landing to the landing where Wheeler was working, by track, was in the order of 750 metres. It involved walking along an in-coupe track, that is, a track constructed for use by logging vehicles. It was apparently traversed without incident by Ms Colson, despite her allegedly weak ankles, and by Ms Jackson in her sandals.

700 There was a confrontation between the protesters and Wheeler at the landing. The main physical participants were Fowkes, Donato and Wheeler, but it cannot be doubted that there was also verbal abuse by a number of the protesters and by Wheeler.

701 In circumstances which I will further examine, Wheeler discontinued work and drove his utility to the top landing. He attempted to make, or made, a phone call or calls. Whom he then attempted to ring, or rang, and why, was in dispute at trial.

702 Subsequent to his arrival at the top landing two events occurred. First, his son, Bernard Wheeler, arrived at the landing in his log truck. The truck had its timber jinker hauled up. Accompanying Bernard Wheeler were his wife, Michelle Wheeler, and his three young children.

703 Second, the protesters arrived back at the top landing.

704 There was a dispute in the evidence as to what happened at the top landing. As will be seen, I am satisfied that there was a further confrontation, particularly involving Ms Dawson.

705 Thereafter Chris Wheeler drove his ute up SSP Track towards SRR, followed by Bernard Wheeler in his truck.

706 There is no doubt that Bernard Wheeler stopped his truck with its rear end very close to the alignment of the coupe gate. There is also no doubt that the protesters' vehicles came up the track and approached the gate, Donato's van being at the front. Those vehicles stopped, no doubt in response to Bernard Wheeler's truck having stopped. There was a dispute at trial as to why Bernard Wheeler stopped his truck where and when he did.

707 Later, there was a dispute how much later, Wilson and Light arrived in the vicinity of the gate. The circumstances in which they came to arrive was also disputed.

708 Subsequent to their arrival, Bernard Wheeler departed in his truck. Where he went and what he did was another matter of dispute.

709 After Wilson and Light arrived, and before Bernard Wheeler left, there was a further confrontation. In essence, the loggers' group swung the boom of the gate across SSP Track, thereby barring exit of the protesters' vehicles. At some stage Ms Dawson was caught between the boom and the front of Donato's vehicle. Thereafter Chris Wheeler brought his ute into the vicinity of the gate, it preventing the boom being swung open; and Bernard Wheeler, Wilson and Light left the scene.

710 For a period of time the boom remained across the track. Then Fowkes, assisted by other men in the protesters' group, broke it off.

711 Thereafter Chris Wheeler, then on his own, attempted to prevent the protesters' vehicles from leaving. For how long he attempted to do so, and why, was yet another area of dispute.

712 In any event, one protester's vehicle slipped by. Its occupants were Ure and Ms Dawson. It proceeded to the base camp. A story was told. Other protesters, as well as Ure and Ms Dawson, returned to SSP intersection. Why they returned, and why they stayed, was a matter of dispute.

713 It is certain that, at some time after Ure and Ms Dawson left, the other protesters moved to SSP intersection and set up a camp on the verge at its south eastern corner.

714 Chris Wheeler's movements after Ure and Ms Dawson left were yet another matter in dispute. What is clear is that eventually he took up a position in his ute to the east of the protesters, thus placing himself between them and his valuable machine.

715 Apart from the whole variety of disputes so far identified, there was a marked conflict in the evidence of the protesters and those in the Wheeler camp about how long the incident lasted, particularly so much of it as occurred in the vicinity of the gateway.

716 The only claim which arises out of the events of 24 January is Ms Dawson's claim that she was assaulted and battered. But the plaintiffs and defendants sought to make much more of those events. The plaintiffs contended that those events foreshadowed the loggers barricading them in, that happening on the following day. They relied upon what they claimed was the violence inflicted on Ms Dawson to show, along with other incidents, that they had a well-founded fear of violence by loggers, which was a facet of their alleged imprisonment. They relied also upon what they asserted was the untruthful evidence of Chris Wheeler, Bernard Wheeler and Wilson as bearing upon the credit of each of those witnesses.

717 For the defendants, it was contended that the events of 24 January were a precursor to an intended blockade of SSP coupe by conservationists. An intention to establish a blockade was stated that day. It was confirmed, inter alia, by the protestors augmenting their numbers and setting up a camp.

718 The defendants further contended that the events in the coupe bore the hallmarks of protester action, and demonstrated again the provocative conduct in which protesters such as Fowkes, Colson and Ms Dawson engaged.

719 The defendants contended also that the conduct of the protesters, in the face of the confrontations which occurred that day, was quite inconsistent with their being in fear of loggers. That conduct rather showed the determination of the protesters to prevail.

720 Further again, according to the defendants' case, Ms Dawson's conduct subsequent to the alleged assault and battery gainsaid that she had been injured.

721 Finally, said the defendants, the plaintiffs who had given evidence about the day's events had given much untruthful evidence. That bore upon their credibility generally.

722 In a moment I shall address enough of the detail of the evidence to resolve disputed issues. But before doing so I should make two observations. First, in my opinion Bernard Wheeler was far and away the most impressive witness of those who gave evidence about any of the events of 24 January. He gave his evidence in a clear and straightforward manner. In so concluding I have had regard to his evidence generally. In large measure I accept the reliability of his account of what happened that day, so far as he could speak of it.

723 Second, a number of those who were present during some or all of the events which occurred that day did not give evidence: on the plaintiffs' side - Donato, Ure, Mills, McDonald and Nick; on the defendants' side - Light. No evidence was called to suggest that any of them was unavailable. Two witnesses, in my opinion, could have given relevant evidence: McDonald, for the burden of the evidence is that he was driving Donato's van when the incident involving Ms Dawson occurred and was uniquely able to say what he was then doing; and Light, for he was one of the men holding onto the boom at the pertinent time; and as well as could have been expected to say how he came to be at the place that day.

724 The circumstances are certainly such as would justify me inferring that any evidence given by McDonald would not have assisted the plaintiffs, most particularly Ms Dawson; and in inferring that any evidence given by Light would not have assisted the defendants; and in extrapolating from those inferences in one of the ways described in O'Donnell v Reichard [301] I might also have embarked upon a path of inferential reasoning by reason of the plaintiffs' failure to call the other persons whom I have mentioned; though there must be an end to calling evidence. But I do not rely upon inferential reasoning based on the failure of plaintiffs or defendants to call any of the other potential witnesses as to the events of 24 January. I have reached clear conclusions about what happened which could not be affected by such reasoning.

725 I go now to the evidence pertinent to areas of dispute.

726 At what approximate time did the protesters arrive? That is one part of the equation which determines the length of the affair.

727 Chris Wheeler said that he started work at about 7.30 am that morning. He noticed a protester, standing on a pile of logs, in the late morning. It was Fowkes. There was a confrontation which lasted 15 or 20 minutes. Then he drove to the top landing. He called his wife and unsuccessfully attempted to call his son, whom he was expecting to collect a load of logs at around lunchtime. He waited for a while and then heard his son's truck on SRR. It came down SSP to the log landing.

728 Bernard Wheeler put the time of his arrival at SSP Track at about 12.30 pm [302]. He was not cross-examined to suggest that his arrival was at any other time.

729 Wilson, on any view, arrived at SSP Track after Bernard Wheeler. In cross-examination, he put the time of his arrival at "12.30, 1 pm". He'd had lunch before leaving Colac [303].

730 Ms Jackson said that on the Sunday morning she went driving with others, amongst whom she identified Bowles. [304] They drove around looking at some coupes, but did not enter any. They arrived at SSP coupe, the gate was open, and they drove down into the coupe. She assigned no time to their arrival.

731 Ms Dawson gave evidence that she and a number of others decided on the Sunday morning, after discussion, to look at logging coupes. Three vehicles went down SRR and into SSP coupe through a gate that was seen to be open. She described a confrontation with Wheeler. Then, she said, he went back up the hill in his ute, spoke on a two-way radio, [305] and probably 5 to 10 minutes later a log truck drove into the coupe.

732 She said in cross-examination that she walked to the lower landing at maybe elevenish, late morning. Her evidence implied that the initial confrontation with Wheeler was short-lived, that he drove off up the hill, made his call and that the log truck arrived soon thereafter.

733 Fowkes, one of the majority of plaintiffs who did not wear a watch at the time, spoke of a discussion on the Sunday morning and then of being part of the group that drove to SSP Track. He assigned no time to the departure of the group from the base camp, nor to its arrival at SSP.

734 Ms Colson gave evidence that the group left base camp in the morning, and arrived, she thought, somewhere between 10 and 11 am [306]. I understood her to say that she was in the vicinity of Wheeler's machine for about 10-15 minutes before Wheeler left in his ute; and that it then took her group 10-15 minutes to walk back to the top landing, at which time she saw a truck stopped - though on the track, not on the landing.

735 Ms Colson's evidence of arrival time was something of a guess. She did not wear a watch. Nonetheless, I think that she was not far wrong in estimating the group's time of arrival at SSP Track. Allowing for time taken driving down the track, parking, and then walking down to the landing where Chris Wheeler was working, I conclude that the protesters' vehicles probably arrived at SSP Track at about 11.30 am.

736 I next consider that Ms Colson's estimate of two particular intervals of time - that is, the periods of time spent by the protesters at the lower log landing and walking back to the top landing - were probably pretty accurate. Assuming that they arrived at the landing where Wheeler was working at around mid-day, that would put the return of the group to the upper landing at around 12.30 - compatible with the evidence of both Bernard Wheeler and his father.

737 All in all, then, the chronology thus far seems likely to be that the protesters' vehicles arrived at around 11.30 pm, that the protesters were at the lower landing by mid-day or a little earlier, that the confrontation with Chris Wheeler laster 15 minutes or so, that he thereafter drove his ute back to the top landing, and that Bernard Wheeler arrived in his truck at about 12.30 pm.

738 Next, Bernard and Chris Wheeler gave evidence that the former had arranged to collect a load of logs at SSP coupe. Quite apart from the fact that I regard Bernard Wheeler as having been an impressive witness, the probabilities favour this evidence being truthful. Bernard Wheeler then lived in Barongarook, not far south of Colac. His truck arrived at SSP coupe not long after Chris Wheeler returned to the top landing. It seems entirely improbable that Bernard Wheeler could have driven from Barongarook to SSP coupe had his father then called him. Moreover, if he came to SSP coupe at his father's behest to blockade the protesters, why would he come in his log truck, when he had a ute, as the evidence showed? Other things apart, the quantum of the likely comparative fuel bills would give good reason why he would not do so. Why, further, would he bring his wife and children? Much more likely that he drove his unladen truck to SSP coupe, taking his wife and children with him for a jaunt, ready to load up as he said he intended to do, before taking the load to a mill in Geelong.

739 That conclusion leads on to another area of dispute. According to Bernard Wheeler and his father, it being evidently impossible for Bernard to take on a load of logs at SSP coupe - that is, the protesters being present - they decided that Bernard Wheeler should drive his truck to Riley's Ridge coupe and take on a load there. Riley's Ridge coupe, it will be remembered, was a Wheeler coupe, and it was situate off Riley's Ridge Road, which intersected with SRR some five to six kilometres south west of SSP intersection.

740 Bernard Wheeler gave evidence that he stopped his truck at the gate to SSP coupe because the protesters' vehicles were coming up behind him, and he feared that they would follow him to Riley's Ridge coupe and frustrate him taking on a load of logs. A decision was made that his father should attempt to hold the protesters at bay for a short time to enable him to get to Riley's Ridge, load and depart. That is what occurred, subject only to this: that on his way back north along SRR, but south of SSP intersection, his father met him, saying that it would be best to avoid going past that intersection because the protesters were out. So he reversed, and made his way home by another route, arriving at around 3.30 or 4 pm, or perhaps a little later.

741 Bernard Wheeler certainly took a load of logs to Geelong that evening. His evidence was confirmed by a so-called log docket. [307] It shows that his truck arrived at the Geelong mill that night with a load of logs which originated from the Riley's Ridge coupe.

742 Evidence that Bernard Wheeler took a load of logs to Geelong on the evening of 24 January, when his truck had been seen with an unladen jinker earlier that day, strongly suggests that his evidence of what he did when he left SSP coupe, evidence corroborated by the evidence of his wife and his father, was truthful. In that event one would accept the more readily his evidence of why he stopped at the gate of SSP coupe, and of the decision to keep the protesters at bay.

743 The plaintiffs contended, however, that the log docket, both viewed separately and in a sequence of log dockets, showed that the logs taken to Geelong had been loaded on Saturday, 23 January.

744 Log dockets, of which multiple copies were made, were extracted from a book in which they were numbered in sequence. There was a book at each coupe. Drivers were certainly under an obligation to complete dockets accurately and to do so in sequence.

745 There is no doubt that the docket referring to the load which arrived at Geelong on 24 January shows that the load was taken on at 6 pm on either 23 or 24 January - the figure was over-written [308]. There is also no doubt that the next docket in sequence shows a load taken on by another carrier on "23/1/98" (sic) at 6 pm. It was not suggested in evidence that a second load was taken from Riley's Ridge on 24 January. If the entries were accurate then Bernard Wheeler's evidence, relevantly, would be compromised.

746 I consider it very probable however, that the entries were not accurate. One may speak of there being an obligation of accuracy, and of the need to complete dockets in sequence; but a review of even the few dockets which went into evidence shows that errors were routinely made; and as well that entries were at times left incomplete. Bear in mind also the impossibility that two loads could have left Riley's Ridge on 23 January at the same time. The likelihood is, I think, that the carrier who took on the load which is described in the next docket skipped a docket in doing so, and entered a date and time which was incorrect in a number of respects; and that Bernard Wheeler filled out the intervening docket and carelessly reproduced the date (but for the year error) and time shown in the book copy of the next docket.

747 Several other considerations tell in favour of Bernard Wheeler's evidence being accurate. Why, as I asked rhetorically a little earlier, would he be driving around the Otways on a Sunday with an unladen jinker on his truck if he was coming to lend his father a hand in blockading protesters? Further, on any view he was pulling a laden jinker that evening. The log dockets tend to confirm, as he said in his evidence, that he had one prime mover. [309] True, the jinker pulled up on the prime mover on 24 January had its own registration number; so it would theoretically be possible that he had two jinkers, one of which he had loaded on 23 January and took to Geelong, and one of which he had hauled up onto his prime mover on 24 January. But it was his evidence that he had a single jinker; [310] and I see no reason to reject that evidence. Indeed, to assist the plaintiffs it would not only be necessary to reject such evidence, but to impermissibly speculate that in fact he had two jinkers.

748 To what I have so far said, I should add this: Chris Wheeler was cross-examined about the log dockets. So was Wilson. But Bernard Wheeler was not shown the dockets on which the plaintiffs relied. What was put to him, in essence, was that no delivery docket for the Sunday was in the plaintiffs' hands [311]. That was true so far as it went; but it did not take the matter very far.

749 Bernard Wheeler, then, did not go to SSP coupe on 24 January to assist his father in blockading the protesters in. Further, he went to Riley's Ridge to pick up a load, did so, and took it to Geelong that night.

750 Wilson and Light arrived at SSP Track before Bernard Wheeler left that location. It was the plaintiffs' case, in substance, that they came to assist in blockading the protesters. Several witnesses gave evidence to the effect that Bernard Wheeler went away and collected them. Wilson, however, said that he was passing by SSP Track on his way to Riley's Ridge along SRR with Light - who was to start work the next day - when he saw vehicles on SSP Track. He parked at the intersection and walked to the area where the vehicles were parked. Then followed conversations with Bernard, then Chris Wheeler - the precursor to Bernard Wheeler moving his truck forward and the boom of the gate being swung across SSP Track.

751 It is conceivable that Chris Wheeler hatched a plan, when he was at the top landing, to call for assistance from Wilson and Light in dealing with the protesters. It is just possible that there was sufficient time from when he made a call [312] for Wilson and Light to travel from Colac, arriving when they did. But, denials aside, that does not seem probable, particularly when what in fact transpired at the gate - because I accept Bernard Wheeler's evidence on the matter, and because it fits what Bernard Wheeler in fact did that day - was directed to protecting Bernard Wheeler in his work, not dealing with protesters. Moreover, why would Chris Wheeler bring Wilson and Light from Colac to deal with protesters when Nocera and Nemet lived in Kawarren?

752 It is also conceivable that, stalemate having been reached at the gate of SSP coupe, Bernard Wheeler went off with his wife and children, found Wilson and Light, and returned with them to assist in the confrontation with the protesters. But that assumes, and there was no evidence of this, that either Chris or Bernard Wheeler knew that Wilson would be working that day. It would also involve rejecting the evidence of Bernard and Michelle Wheeler, not to say Wilson. I see no reason to do so.

753 In the event, I consider that Wilson and Light did arrive at SSP as a matter of chance; and that what they did, together with Chris and Bernard Wheeler, had as its purpose freeing Bernard Wheeler to go to Riley's Ridge coupe and take on a load.

754 Before dealing with the confused evidence about what happened at the gate, I should deal with what happened in the first encounter between the protesters and Chris Wheeler, and in the encounter at the top landing.

755 The protesters arrived at SSP coupe, I conclude, not by accident as Ms Jackson's evidence suggested was the case. I earlier referred to evidence which shows a definite intention to go to SSP coupe that day [313]. Getting to SSP Track should not have proved difficult. McDonald had been there within recent months, SSP coupe had been blockaded at an earlier time, and Ms Colson gave evidence of having seen maps which showed where logging was occurring, and having seen people using such maps when scouting [314].

756 Several of the protesters, at least, set out for SSP coupe believing - as they claimed - that there was illegal logging on coupes. It was only a question of the extent thereof. [315]

757 Some at least of the protesters were aware that loggers sometimes worked on Sundays. It is probable, however, that they did not expect to find work going on at SSP coupe on 24 January. When still a considerable distance from the lower log landing, however, it must have been apparent that work was being done. Some plaintiffs conceded that fact.

758 The protesters nonetheless proceeded to the lower log landing. I have no doubt that their purpose was to confront the machine operator, and to cause him to cease work. At least the plaintiffs amongst them believed that work must cease when they entered a coupe. I dismiss the suggestion that, at least from the time when they realised that someone was working, the interest of any of them was confined to having a look at the coupe.

759 The main physical confrontation at the lower landing, as I said earlier, involved Chris Wheeler, Donato and Fowkes.

760 On any view Donato climbed onto the roof of the excavator which Chris Wheeler was then using to debark logs [316].

761 It was a question of some controversy how the engine of the machine came to be turned off. That bears upon Fowkes' involvement.

762 Ms Jackson recalled that someone in the protesters' group had tried to turn it off. She did not identify anyone by name.

763 Ms Dawson gave evidence that Donato reached down from the roof, turned the machine off and took the key. She yelled at him to give it back and he did so [317]. What she claimed Donato had done was shown to be a physical impossibility. Later in her evidence she said she thought that Donato got off the roof and reached into the cab. That does not seem to fit with the photograph, Exhibit 72.

764 According to Fowkes, Chris Wheeler turned off his machine, Donato grabbed the keys, they all yelled at him to give the keys back, and he did [318]. He reached down a metre and a half to the door of the machine, holding himself up by the steering wheel, took the keys and hopped back onto the roof. The latter account, given in cross-examination, seemed to me to have been an attempted reconciliation of the photograph of the scene, the dimensions of the machine, and the assertion that Donato took the keys. Fowkes then gave another account. It involved Donato jumping down, grabbing the keys, and getting back onto the roof.

765 In all, Fowkes' evidence about this matter was a sorry affair. It showed his ability to embellish accounts of events. It was evidence given in the context of a suggestion, which he denied, that he had attempted to stop the machine by reaching in through its window.

766 Ms Colson gave a different account again. Chris Wheeler stopped the machine when Fowkes stood on the logs. After he stopped it, Donato got onto the cabin. When Wheeler got out of the cabin, Donato jumped into it and took the keys. Fowkes and Ms Dawson screamed at him to give the keys back, and he did.

767 Chris Wheeler's account was that he first became aware of protesters when he saw Fowkes, whom he knew, standing on a pile of logs that were still to be debarked. He swung the machine around and saw a group of protesters. They were yelling and screaming at him.

768 The next thing Donato climbed onto the roof; and Fowkes stood on the track at the driver's door and tried to reach in and turn the machine off. He tried to push Fowkes away and to turn it off himself. Whilst he was doing this, the latter was saying:

[169]

775 In cross-examination he identified Ms Dawson as one of those who said they were not going to let him work the coupe. Fowkes said also they were not going to let him work, he was destroying the coupe. They were saying that the coupe was too steep. They said that they were not going to let him operate the coupe, for the next week at least, probably longer [321].

776 Various of the plaintiffs, on their accounts, had plenty to talk about. Ms Jackson gave evidence that she was informed by someone that logging on a gradient in excess of 30 degrees was illegal, and was concerned that illegal logging was going on in the coupe. She talked to Wheeler about it. She probably said to Wheeler that "we don't want you logging this coupe"; but there had been no group discussion about preventing logging that week.

777 Fowkes said he asked Wheeler what he was doing there on a Sunday, how far he was going with the logging, how much of the coupe was allocated for logging. He also gave evidence that he probably said to Wheeler that he was just there to have a look. No doubt, he said, he would have shouted obscenities. Wheeler was breaking a law, not stopping the machine. He denied saying to Wheeler that they would not let him work that week.

778 Ms Colson said when she approached Wheeler she was concerned about the steepness of the slope. She also wanted to know why he was working on a Sunday. She had been told that he was not meant to be doing so. [322]

779 Although it is apparent that the whole confrontation at the lower landing was not long-lived, I think it is highly likely that Fowkes and Ms Jackson, at least, got into argument with Wheeler. Considering Fowkes' attitude generally, what he had already done and said that morning, and the fact that he and Wheeler had been involved in the recent Webster Hill protest action, I think it is very likely that he told Wheeler, in substance, that they would not let him work for the ensuing week or thereafter. I am not influenced against that conclusion because the protesters had not then made, let it be assumed, a group decision. Fowkes was likely to say such a thing regardless. Whether it turned out to be the fact, the future would tell.

780 It may well be the case that, there being nine protesters and one logger, other protesters were emboldened to assent to what Fowkes said; that is, aside from the remark which Ms Jackson said that she probably made. But I make no positive finding in that connection.

781 So much for that initial confrontation. A further confrontation, on the account of Bernard and Michelle Wheeler, occurred at the top landing.

782 Bernard Wheeler gave evidence that he drove to the top landing. He met his father, who had just pulled up in his ute. He could see people wandering up over the top of the hill onto the landing. None of them were on the landing when he arrived.

783 His father, he said, told him that there were protesters in the coupe, that they were not going anywhere, that they would not let him load. His father suggested that they try and casually turn around, drive back out, go to Riley's Ridge, and load there.

784 His father, he said, got into his ute and drove off. By then the protesters had approached the front of his truck. As he went to get back into his truck he saw Ms Dawson standing on the bull bar, smashing the bonnet. Another girl was also on the bull-bar. He said:

[171]

They did get off. He turned around and slowly drove out. The protesters cheered and clapped.

785 Bernard Wheeler's evidence concerning Ms Dawson's conduct was corroborated by the evidence of his wife [324]. She put a name to Ms Dawson having seen the latter in court. Earlier she had been shown photographs. Ms Dawson, because of her blonde dreadlocks, must have been very recognisable in January 1999.

786 Ms Dawson denied that she had behaved in such a way [325]. Fowkes gave evidence that it was a lie [326]. Ms Colson said she did not see any protesters approach the truck. She said she was a couple of hundred metres away [327]. But she agreed that she was "not really" good at judging distances; and her later evidence suggested that she was then much closer to it than she had estimated.

787 I do not believe the evidence of the plaintiffs upon this matter. I consider it very likely that Ms Dawson, emboldened by the relative numbers, did what was said of her. At that stage the protesters had the Wheelers on the run. I am not influenced against that conclusion by the fact that Bernard Wheeler did not report the incident to the authorities.

788 It is next clear, as I said earlier, that the different vehicles all proceeded up SSP Track to the vicinity of the coupe gate. But before going on, I should make this clear. Even up to the present point in the chronology there were considerable differences in the evidence of the various plaintiffs - that is, differences other than those which I have particularly identified. They were differences upon matters such as the identity of those who travelled to SSP coupe, precisely where the protesters parked their vehicles, how long after Chris Wheeler returned to the top landing they made their way to that point, where the truck was when it was first sighted. Such differences, to my mind, were of no particular consequence. They illustrate the imperfection of recollection, particularly after an elapse of some years.

789 I go next to the events at the gate to SSP coupe. In my view the evidence generally adduced for the plaintiffs and the defendants was quite confused in that connection.

790 A starting point, I am satisfied, is that Chris Wheeler drove his ute to the SSP intersection. That is what he said he did. It is compatible with him heading the way to Riley's Ridge coupe.

791 I am next satisfied that he stopped when he realised that his son's truck was not close behind, that he saw the truck had stopped at the coupe gate, and that he then reversed his ute.

792 There is no doubt, further, that Bernard Wheeler stopped his truck in a position such that the gate could not be closed. On his account it was through the gate, but the boom could not be closed. [328] He stopped it there because he had noticed a number of vehicles coming up behind his truck, apparently quickly; and in light of past experiences he feared they intended to follow him to the other coupe and disrupt loading there.

793 There was evidence that at some place, and at some time, one of the protester's vehicles became bogged. Compare the evidence of Fowkes [329] and Ms Colson [330]. I could not conclude, however, on the basis of that contradictory evidence, which I treat as simply an instance of imperfect recollection, that Bernard Wheeler's evidence that he saw the protesters' vehicles coming up behind his truck, apparently quickly, should be rejected.

794 Bernard Wheeler next gave evidence, which I accept, that he told his father of his fears. Not long afterwards, a matter of 10 to 15 minutes, Wilson and Light arrived.

795 Ms Dawson gave evidence of the arrival of those men, preceded by the departure of a woman and child from the truck [331]. Fowkes gave evidence to somewhat similar effect [332]. On the latter's account, the period of time between departure of a ute and its return - he said, containing three men, one of whom was Nocera - was possibly an hour.

796 I do not accept the accuracy of either account, as I said earlier. Not only did Bernard Wheeler, his wife and children not leave in a utility, Bernard Wheeler returning with Wilson and Light, Nocera was not at SSP that afternoon, and it was not an hour between the time when the truck and other vehicles arrived in the vicinity of the gateway and the time when Wilson and Light arrived.

797 In the period before Wilson and Light arrived the protesters took a number of photographs of the truck in situ [333]. None of them, so far as I can see, show the relationship between the truck and the gateposts [334]. One photograph [335] tends to confirm the evidence of Ms Dawson that the protesters attempted to find out what was going on.

798 I should further refer to the photographs. The defendants adduced evidence to the effect that, before the truck moved forward, the front of the van was some 2 to 3 metres from the rear of the truck [336]. The plaintiffs' case was that the front of the van was at that time close to the rear of the truck. In cross-examination generally, plaintiffs' counsel relied particularly on the photograph at CB 696.2 as supporting the plaintiffs' version. It was said that the photograph was evidently taken from the front of the van.

799 Let that be accepted. I cannot accept that the photograph shows what the plaintiffs contended for. Bear in mind the angle on which it was taken; and the front profile of the van. Consider also the photograph at CB 668.2. There, the people are depicted at varying distances from the back of the truck. The photographer was evidently at ground level, and somewhat further away still from the back of the truck. The front of the van cannot be seen [337].

800 Returning to the sequence of events, a decision was made to shut the gate. The plan was to give Bernard Wheeler an opportunity to leave, go to Riley's Ridge and load up. He would need three quarters of an hour or so. Bernard Wheeler then drove his truck sufficiently far forward to enable the boom of the gate to be swung across. The intention was to close it.

801 That process was begun. Very likely the two Wheelers, Wilson and Light took hold of the bar - not because it needed four men to swing it across, but to assert that they had the ability to close it.

802 Those circumstances were the necessary precursors to what followed. I consider it extremely likely that what then happened occurred very quickly, albeit that some of the participants perceived it to be a protracted process.

803 Protesters saw what was happening. At least some of them apprehended that it was an attempt to lock them into the coupe; for the protesters did not know what Bernard Wheeler planned to do.

804 There was evidence that, before Ms Dawson was caught between the front of the van and the gate, members of the opposing groups had been struggling on the one hand to close the gate; and on the other hand to push it open. I can accept that there was some such activity, but I think that it was very short-lived.

805 There is no doubt that the van moved forward. The rear of the truck before it moved forward was either, as the defendants asserted, just through the gateway; or else still within the gateway, as Mr Dawson's evidence suggested might be the case [338]. The front of the van then being several metres at least from the back of the truck, the photographs which are Exhibit I [339] are only compatible with the van having moved forward. Those photographs depict Chris Wheeler, Wilson and Light with their hands on the boom, the front of the van evidently being in close proximity. Those considerations apart, there is direct evidence that the van did move forward [340].

806 Ms Dawson gave evidence that the truck began to move, someone drove Chris Wheeler's ute back towards the gate, the van started edging forward, then three people started walking to the gate and beginning to close it. She ran up and tried to push it open. She was pushed by the gate into the van [341]. She called on the men to stop. They smiled and kept pushing for a little while. They were pushing hard. The incident lasted

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827 What is to be made of all this evidence?

828 It being certain that the van advanced and that Ms Dawson was caught between the van and the boom of the gate, I think it is unlikely that either of the photographs which form Exhibit I show the time when she was caught. It seems to me that Wilson's evidence in that connection was sound. Moreover, no protesters other than Ms Jackson are depicted in the photographs, and on evidence given by plaintiffs and defendants alike, protesters were certainly in close proximity to the boom when Ms Dawson was caught.

829 All in all, it seems likely to me that when Chris Wheeler and the men moved to close the boom, there was pushing and shoving. The van may then have been edging up, but it was still a distance back from the gateway. The protesters were not prevailing. Ms Dawson hit on the idea of using the van to force the gate open. She said what was attributed to her. The van advanced slowly, partly because the ground was wet, partly because the driver would not want to damage the vehicle. As it approached, Chris Wheeler, Wilson and Light continued to hold the boom - as depicted in the photographs which are Exhibit I. [353] When the van was very close, Ms Dawson was either already positioned between the van and the boom, pushing on the latter, or else then placed herself between the van and the boom. Other protesters were then in close proximity to the boom, at least ready to assist in opening it. Ms Dawson did not intend to be caught between the van and the boom. She intended by her presence, with the van positioned to further advance, to cause the men to relent and open the bar. But they did not do so when it did further edge forward. They pushed the bar, and she was jammed for a short period. It was the outcome of a battle of wills, an outcome which none of the participants anticipated until very shortly before Ms Dawson was caught.

830 I do not consider that the incident would be accurately described by saying that the van pushed Ms Dawson into the boom; or by saying that the men pushed the boom onto Ms Dawson. The incident was, in my opinion, an amalgam of the two.

831 I should mention that there is apparently no photograph of Ms Dawson at the time when she was caught; and, indeed, that there is apparently no photograph at all of her in the near vicinity of the van and the boom. The photographs which are Exhibit I were evidently taken from within the van, and apparently from the driver's side, which suggests to me that the driver was the photographer. The fact that there are no photographs of Ms Dawson when she was caught, or immediately prior thereto, suggests that the driver was then occupied - most obviously, in edging his vehicle forward from the position in which it then was.

832 This also should be said. The position from which the van finally edged forward was, I consider, close to the boom of the gate. The photographs which are Exhibit I are pertinent. It was not a case of Ms Dawson interposing herself between a rapidly moving vehicle and the boom. That bears upon what the plaintiffs asserted was the essential improbability of the defendants' case; as does the belief, which I am confident Ms Dawson held, that the men holding the boom would relent.

833 It seems to me, notwithstanding the very strange circumstances, that an assault and battery was inflicted on Ms Dawson. That is at least so in respect of the very short period when the men did not relent despite it being evident that she was caught.

834 It is convenient, in light of that conclusion, to say something as to the effect of the battery. I am satisfied that it was very slight indeed. Ms Dawson cried out at the time. She gave evidence that the boom wedged under her ribcage, and that she was being winded. She said that afterwards she had some redness and a small bruise, and was shocked [354].

835 Despite some corroborative evidence being given by other plaintiffs, the burden of the evidence, together with Ms Dawson's conduct for the balance of 24 January and throughout the week, does not bespeak significant physical or mental injury. On 24 January she drove back with Ure to the base camp, busied herself, and returned to SSP intersection. On the Monday morning, on her own account, she played cricket. So far as medical problems during SSP week were concerned, in her evidence she highlighted a foot ulcer. She sought no medical attention on 24 January. Her evidence as to why she did not seek medical attention on 24 January [355] must be considered along with her evidence as to why she attended the Clinic on 29 January [356]. When she attended the Clinic, she made no pertinent complaint, and no pertinent observation was made [357]. Further, so far as I can see she did not mention the incident, or any injury arising therefrom, when interviewed by Dr Epstein in October 2003 [358].

836 In all, I consider that an award of $2,500 damages ought be made in Ms Dawson's favour for such injury as she sustained. The award should be made only against Chris Wheeler and Wilson, for I cannot conclude, in the circumstances which I have described, that what occurred represented conduct in concert by the defendants. It should be made against Wilson despite the form of paragraph 28C of the statement of claim. The evidence showed that Wilson was one of the men pushing the boom during the short but critical period. I add that the damages amount includes nothing by way of aggravated compensatory damages nor exemplary damages. Upon the conclusions which I have reached it would be wrong to make any such allowance.

837 Resuming my consideration of disputed circumstances concerning the events of 24 January, Bernard Wheeler with his family, Wilson and Light all left SSP Track shortly after Chris Wheeler's ute was positioned in the manner which I have described. Contrary to the effect of evidence given by, for example, Fowkes and Ms Colson, I conclude that it was then no later than about 1.30 pm.

838 The period of time which elapsed thereafter until some, then all, of the protesters passed west of the gateway was in dispute - not that the particular plaintiffs allege imprisonment that day. Some of the plaintiffs said that they were contained at the gateway by Chris Wheeler for hours. [359] Wheeler, on the other hand, gave evidence that it was for no longer than about three quarters of an hour.

839 Once it is concluded that Chris Wheeler's purpose was to enable his son to take on a load at Riley's Ridge, and accepting a deal of evidence that the amount of time likely to be, and in fact, occupied in travelling to Riley's Ridge and loading up was about 45 minutes [360], there was no purpose in Chris Wheeler keeping the protesters at SSP Track for longer than that, even if he could have done so.

840 Purpose apart, evidence given by Chris Wheeler and his son, which evidence I accept, shows that Chris Wheeler must have departed from SSP Track not more than an hour after Bernard Wheeler, Wilson and Light had left.

841 As Chris Wheeler explained it, one protester's vehicle had departed, and the other protesters had passed him by. He did not want his son's vehicle coming back up SRR past SSP Track, protesters still being present. So he left the area, and intercepted his son's vehicle on its journey up SRR.

842 Bernard Wheeler's evidence was, pertinently, that after meeting his father he had to reverse his vehicle, turn and go home by another route. Given his evidence as to the approximate time when he arrived home, it seems likely to me that he must have met up with his father at around 2.30 pm.

843 The sequence of events which occurred near the gate in the period after Bernard Wheeler left was the subject of a deal of confused evidence. In that period, certainly, Fowkes and other broke the boom off the gatepost, Chris Wheeler moved his ute in an attempt to block the egress of the van, and sat or squatted down in front of the van to prevent its egress, [361] Donato perched on the front of Wheeler's ute, [362] one of the protester's vehicles - driven by Ure, and in which Ms Dawson was a passenger - got past the gate and departed for the base camp, and other protesters passed Wheeler by.

844 One thing, I am satisfied, did not happen in that period. Chris Wheeler had a caravan - he called it a smoko hut - positioned on the south verge of SSP Track close to its intersection with SRR. It was, then, in the area where the plaintiffs set up their camp. Fowkes gave evidence that, in an attempt to draw Chris Wheeler away from the gateway, he and a few mates pushed the van away from its then position and onto SRR [363]. But Chris Wheeler gave evidence that the van was moved whilst he was away from the area meeting up with his son; and it is that evidence which I accept.

845 Chris Wheeler gave evidence that when he returned to the intersection after meeting his son he saw the caravan on SRR. He asked the protesters what the bloody hell they were doing, and was told by Fowkes that it was their camp site now. The van had been damaged. He jacked it up, attached it to his ute and towed it down SSP Track to the top landing. This was at about 3 to 3.30 pm [364].

846 Other evidence about the circumstances in which the caravan was moved onto SRR was given by Ms Colson. The burden of her evidence was that the caravan was moved after all the protesters' vehicles were "out". It was then that she observed the caravan being moved [365]. That evidence was inconsistent with the evidence of Fowkes. It was also inconsistent with the evidence of Chris Wheeler, for he said that he hitched the caravan onto his vehicle when returning from meeting his son; whilst Ms Colson said that he came up from the coupe and collected it.

847 Before the caravan was moved off the road, several witnesses said, a man drove down SRR and apparently became angry because the caravan was there; abusing the protesters.

848 The man was misidentified, as my Reasons later conclude. That aside, the incident may be taken to have occurred. It suggests a reason why Chris Wheeler was unlikely to have left the caravan sitting on SRR that afternoon for any longer than was necessary: that is, although the road did not carry much traffic, it was undesirable to have a largish structure sitting on it, creating an element of obstruction, though not total obstruction. Yet on the account of both Fowkes and Ms Colson, the caravan was left sitting on SRR for a period of time though Chris Wheeler knew of its presence there.

849 Quite apart from the fact that my conclusions as to the time at which and circumstances in which Chris Wheeler left the vicinity of the gate make his account of when the caravan was moved the more probable, the improbability that he would have left the caravan sitting on SRR for a period of time, though knowing that it was there, tends in favour of acceptance of his account.

850 I consider also that the reason why the camp was set up where it was - or at least one of the reasons - is pertinent. Fowkes gave evidence about this. Initially he said that the camp was sited there because Chris Wheeler had bulldozed himself a nice little flat clearing. He denied that there was an extensive bulldozed area on the western side of SRR near its intersection with SSP Track. Then he was shown a photograph and had to admit that there was such an extensive cleared area. That led him to give another reason for the camp being sited where it was:

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851 It seems to me that such reasoning was likely to have operated once the protesters were clear of the gate area and were not about to leave the intersection.

Sunday 24 January: Establishing the camp

852 Some of the plaintiffs, and others, established a camp at SSP intersection on the afternoon and into the evening of 24 January. There are the facts of what happened; and explanations as to why the camp was established.

853 The facts, broadly, are as follows: Ure and Ms Dawson returned to the base camp. Later they returned to SSP intersection.

854 In the interim, [367] the other protesters had begun to set up camp at the intersection in the area which I have previously described. They had not been intimidated from doing so by any of the events which occurred that day, or by fears that any of them allegedly had of violence by loggers.

855 Ure and Ms Dawson were not the only protesters to join the camp that night. Others who did so were McFadzean, Ms Lees, Bowles, Ms Epstein, Greig, "Garry" and Ms Garrett. In all, by the Sunday evening, there were some 16 campers at the intersection; and there were some 6 vehicles. [368] None of the additional protesters who camped at SSP intersection that night was dissuaded from doing so by the events of the day, so far as the same had been recounted to them; or by any concern they might have had individually about logger violence.

856 It is next clear that by the Sunday evening a certain amount of camping gear, food and water had been brought from the base camp to the camp at SSP intersection. Nonetheless, it is not the case that every camper had all his or her camping gear, food and water; whilst Ms Epstein had left her vehicle at the base camp.

857 Another fact clearly established is that before Ms Lees left for SSP intersection she telephoned the Oren office, spoke to Whitehead, and apprised him of what had allegedly occurred that day. She did not telephone the police in connection with the matter. Nor, it appears, did she ask Whitehead to do so.

858 Why did the protesters who were initially at SSP remain? Why did those who left return? Why did the others join them? I will briefly refer to the evidence of the plaintiffs, without comment, and then state my conclusions - conclusions which in my opinion bear on things said and done by the plaintiffs on the following day and thereafter during SSP week.

859 Ms Jackson, in examination in chief, said simply that a group went back to the base camp to get, and they returned with, she thought, a tarpaulin, and a little bit of food. [369]

860 Greig said that he arrived on the late Sunday afternoon. He planned to get "acquainted with the issue", [370] and to leave at about lunch time the next day. In cross-examination he said that he went to the base camp on the Sunday. Only one person was there. He was told that if he was interested there was a bigger group camping at SSP Track. Their purpose in camping there was not explained. He did not assume that they were interested in protesting about logging. At SSP camp Ms Lees told him that a group had been looking for illegal logging and that Ms Dawson had been jammed into a gate. Asked in cross-examination why the group was still there, he said "You will have to ask them". [371] That night, he said, there was discussion, but no discussion as to what was expected to happen the next day.

861 Ms Lees gave evidence of Ms Dawson's arrival at the base camp, and of being told of an altercation and of Ms Dawson being injured. She rang the Oren office and spoke to Whitehead. She felt that it was important that the injury to Ms Dawson be relayed [372]. She told Whitehead that she and others were heading to HP Track - as she then understood it was.

862 She took her own camping gear and some food. She wanted to go and find out what had happened. After her arrival, and conversation, she stayed. She said

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865 The camp they were able to establish, he said, was no more comfortable or different to the base camp.

866 In cross-examination, McFadzean said that purpose of people going to SSP was to assess the situation about the vehicle which he understood was still being prevented from leaving SSP Track, and to lend support. They had not made any decision to establish a camp. He did not recall being told that those at SSP were looking for reinforcements; but the persons who had arrived from SSP had come to get support. He had taken food, water and a tarpaulin. Once they arrived, they decided to camp there. Some people had already started setting up a camp. He did not tell anyone that night that they should leave the area because it was unsafe. [377] After his arrival, informed about the earlier altercation, he was told that Chris Wheeler had been involved. He was there to provide support, not protection; but compare his answers to defendants' interrogatory 5(a) [378].

867 Ms Dawson gave evidence that she returned to the base camp to tell others what had happened. She was worried about the others. Her purpose in returning was to go to see if the others were all right. She did not take anything personal. She was involved in getting a tarp and some food. When she got back to SSP, which she said was in the late afternoon, nothing had been done about setting up a camp.

868 In cross-examination she gave evidence that at the base camp she had told others that there was something going on at SSP, there had been an attempt to block them in, people were still there, they could be in danger, people were needed for safety. She said she decided to stay because maybe other people were coming in consequence of a phone call that she had seen Ms Lees making [379]. She did not do so in order to be there and to prevent logging work the next day. Indeed, at one point she said that she was not expecting loggers to return the next day - a Monday [380]. She was planning to stay, she said, only overnight.

869 Bowles gave evidence that Ms Dawson and Mills [381] returned between 3 and 4 pm. Ms Dawson was very stressed out. She said people were blocked in at SSP and needed help. He gathered some camping equipment and a box full of food, and put them in the car. He took a basic tarp, a larger canvas tarp, some ropes, a hammer, camping pegs, a spade and, he thought, a small sledge hammer. On arriving at SSP no one was blocked in and cricket was being played. They decided to stay and tarpaulins were set up. He recalled no conversation that night about what they might do the next day.

870 In cross-examination the witness accepted, in substance, the accuracy of an answer to interrogatory [382] in which he said that Ms Dawson had told him that Wheeler was present, there had been a confrontation, and that the group was going to set up camp overnight [383].

871 Further in cross-examination, Bowles said that they "just decided to stay there a while" [384]. It was not obligatory to jump or rush around.

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875 After others came to SSP, they decided to stay. It made no difference to her where she stayed - at least in circumstances where others were with her. [391]

876 That day, those who came later brought her swag and sleeping bag, and, she guessed, various swags, sleeping bags and bed-rolls. There was a box of food. She remembered a saw being there during the week. Tarps and cutlery were brought. They had mugs and plates during the week.

877 Ms Colson recalled no conversation as to where the camp should be set up. She did not remember that there was a cleared area on the opposite side of SRR.

878 Ms Epstein gave evidence of Ms Dawson telling her that some people had their cars blocked in and needed help. She gathered some things of those people, also cutlery, plates and some of her gear. She saw others doing much the same. She went to SSP with McFadzean, leaving her vehicle. She took her swag, a shawl, dog food, a small backpack, her toothbrush and her dog. She decided to stay at SSP after she arrived and viewed a partially set up camp.

879 In cross-examination she said, inter alia, that she was told by Ms Dawson that some people were going to stay at SSP overnight; but not why they were going to do so [392]. She was also told that there had been an incident involving Chris Wheeler. She travelled to SSP with McFadzean, but she did not recall him saying anything about what was happening in the Otways at the time, or of his expectation as to what might happen in the next few days, or that she should go home. She intended to return to Melbourne the next day, but left her vehicle at Mt Sabine because it was low on petrol. She did not make any arrangements about getting back to Mt Sabine.

880 Ms Garrett, who had recently formed a friendship with Donato, was driven by Ms Gross, whom she had known pretty much all her life, to the base camp. As a result of something they were told, Ms Gross drove her to SSP Track. They arrived, she thought, about 6 pm. There were a few cars there, and a tent had been set up. She took a change of clothes and a small box of food. She was going there to meet Donato. After she arrived, she was told about the incident involving Ms Dawson, and of threats. She thought that the threats were idle. There was no discussion concerning the group's plans. In cross-examination, she agreed, in substance, that apparently they were all keen to stay [393].

881 I go to my conclusions: A number of protesters had been involved in a confrontation with loggers, prominent amongst them Chris Wheeler, that day. Some of the protesters believed, as they asserted, that there had been illegal logging on the coupe - not simply that Wheeler had been working on a Sunday. Fowkes and others had said to him that they were not going to let him operate the coupe. Wheeler was a man two of whose coupes had recently been the subject of protest action involving active participation by some of those present at the confrontation; and the attendance of others.

882 For a reason that the protesters did not, in truth, understand, they had been held at the gate of SSP coupe. The boom of the gate had been broken off by some of the protesters. Then Wheeler's caravan had been pushed out onto SRR. In the course of the confrontation, Ms Dawson had been jammed between Donato's van and the boom of the gate. Further in the course of the confrontation, one of the protesters had said - I specifically accept Michelle Wheeler's evidence about this - words to the effect "You can't do this to us".

883 On the evidence of several witnesses, Ms Dawson had said, when she returned to the base camp, that some people were intending to camp at SSP that night. In fact, a good deal of camping equipment was taken there. Nonetheless, the facilities were not as extensive as those at the base camp.

884 The camp was set up right at the entry point to SSP coupe. Having regard to the width of SSP Track, obstructing the track was readily achievable. It is not credible, Wheeler having been working on the Sunday, that the protesters would not have believed that it was at least very likely that there would be work on the Monday.

885 So far as the evidence went, anyone returning from SSP to the base camp would have met protesters travelling from the base camp to SSP. The route was along Turton Track and SRR. There was no disclosed reason why protesters travelling from one point to the other would have missed seeing each other.

886 Given the circumstances which I have described, and taking into account the circumstances of each of the plaintiffs as I have earlier described them, I consider it overwhelmingly likely that those who camped at SSP intersection that night - I put Ms Garrett to one side, for her circumstances were different - did so in order to show that they had control of the forest, that they would intimidate rather than be intimidated, and that, to drive the point home, and as a minimum, there would be no work in SSP coupe the following day.

Sunday 24 January and early 25 January: Discussions between defendants

887 The events at SSP coupe on 24 January immediately followed upon the Skillshare meeting. Wheeler acted in accordance with what had been agreed. He contacted Ms Calvert, and told her what had transpired. He did so after arriving back at SSP coupe and seeing that the protesters had begun to set up camp at the mouth of SSP Track. From his perspective both he and his son had been stopped from working at SSP coupe that day.

888 Wheeler rang Ms Calvert, according to his evidence, on an analogue mobile phone from the top landing, where there was phone reception. One of the plaintiffs' complaints about SSP week, it is convenient to mention, was that they had no ability to make telephone contact with those outside SSP. It is plain that one or more of them had a mobile phone, and that a number of them, at different times, walked east along SSP Track. I accept, however, the import of their evidence - that is, that they did not know that a phone connection could be made from the top landing.

889 There are issues whether Wheeler rang Ms Calvert once or more than once that day; as to what arrangements were made about contacting others; and as to how they were carried into effect. What did happen, it is clear, is that some loggers were contacted that evening, were told about what had happened, and were told about the meeting which was to be held at Beech Forest the next morning.

890 So much for the overview. I should refer to a little of the evidence.

891 Ms Calvert gave evidence that Chris Wheeler rang her at possibly 4 pm advising what had occurred. [394] She told him that she would come down and meet with the men at 11 am the next day at Beech Forest. They were to share the job of contacting the men. The next time she spoke to Wheeler was when she called him whilst travelling to Beech Forest. He said nothing had changed.

892 In cross-examination Ms Calvert said that on the Sunday night she told people in general terms that Wheeler had been blockaded into his coupe, that he had had interference activity, that they would meet at 11 o'clock to discuss options. To my question, she accepted that when she agreed to go down to Beech Forest there was a real potential that this might be the site for a picket [395].

893 Ms Calvert said she had no recollection of speaking to Robinson in the period between the Skillshare meeting and him ringing her whilst she was travelling to Beech Forest, on which occasion he told her about damage to vehicles on the Sunday night. Robinson's diary contains no relevant entry, but that is not conclusive, for reasons which he explained. Robinson also gave evidence, I add, that he did not think he knew Ms Calvert was on her way to Beech Forest when he rang her. The fact that he did ring her is inconclusive in that connection. After all, he had spoken with her about the Otways' situation within the last week, and had attended the Colac meeting. All in all, Ms Calvert's recollection and Robinson's less certain recollection seem likely to be correct.

894 Chris Wheeler gave evidence of ringing Ms Calvert twice on 24 January, first at around 3 to 3.30 pm, and then that evening. On the first occasion she said that he should keep her informed. On the second occasion he told her that more people had come in, that there were extra vehicles. He had been back to the intersection. A tarpaulin had been put up and a fire was going. Two vehicles were parked in the middle of SSP Track. On that occasion Ms Calvert said she would be down the next morning. She said she would be coming at around 10 o'clock.

895 Chris Wheeler gave evidence that he rang his wife, Nocera and Nemet. He said to Nocera that he had problems.

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He said the same thing to Nemet.

896 That night he stayed in the coupe. He attempted to sleep in his ute. He was twice disturbed by someone who came down and shone a light into his vehicle.

897 The next day he spoke to Ms Calvert in the morning, he thought twice. On the first occasion he told her that the camp was still set up, they were all camped there and the road was blocked. He could not recall if a meeting at Beech Forest was mentioned.

898 In the second conversation Ms Calvert said she had rung the other contractors and that they were going to come up as a united front and she would organise it. He was told roughly what time. He could not recall mention of the Beech Forest meeting on that occasion.

899 Nocera gave evidence that Chris Wheeler rang him on the Sunday evening and told him that there were greenies in the coupe, that he would ring Ms Calvert, and that there would be a meeting at 11 am in front of Nemet's house. Wheeler also told him not to come early [397].

900 In cross examination, Nocera said he did not know whether Wheeler had told him that he had rung, or was going to ring, Ms Calvert. He agreed that Wheeler had said he expected there would be no work the next day. He had said there would be no work there all week, because that was what the protesters had told him.

901 Nemet gave evidence that he did not hear about the Beech Forest meeting until the Monday morning. His wife told him that there was no work on that day, she had heard that from Chris Wheeler. He learned about the meeting when he spoke briefly with Ms Calvert on the Monday morning [398].

902 Molloy attended the Beech Forest meeting because someone had rung him on the Sunday evening, saying that something was going on at Chris Wheeler's coupe. Inferentially, he must have been told about the meeting.

903 Wilson gave evidence that Chris Wheeler told him about the Beech Forest meeting in a conversation which they had on SRR when he was travelling home from Riley's Ridge at about 5 pm on the Sunday. Wheeler was on the road, up from SSP Track.

904 Dent was told about the Beech Forest meeting when rung by Ms Calvert on the Sunday evening.

905 Pearce gave evidence of learning about the meeting from his boss, via a truck driver, on the Monday morning. He was re-directed to the site of the meeting by a message on the UHF channel that everyone used.

906 Sheppard said that he went to the Beech Forest meeting because, on the Monday morning, Dent told him that it was being held [399].

907 There are, as I said earlier, a few areas of uncertainty. One question is whether Ms Calvert said to Chris Wheeler on the Sunday that a meeting would be held next day at Beech Forest. I think it is likely that she did say that to him, probably in what she said was their only conversation, and in what he said was their first conversation. So to conclude is consistent with the evidence of Wilson and Nocera. Wheeler's evidence about the matter was uncertain.

908 Another question is how often Chris Wheeler spoke with Ms Calvert on 24 January and on Monday morning. As to the Sunday, I prefer Wheeler's evidence. It seems very likely to me that he would have reported the evolving situation to Ms Calvert. There was certainly a change in the circumstances of the protesters' camp as the day developed. As to the Monday, I am less certain - although it makes sense that Wheeler, likely to have been up and about early, would have given a situation report to Ms Calvert.

909 A third question that arises is whether Chris Wheeler spoke to Nemet. He said he did; but Nemet said that his wife gave him a message. It seems to me more likely that Nemet, as he claimed, was given a message. That was something he was likely to remember. All Wheeler had been doing was making contact with people. It is odd that Nemet's wife did not pass on the message on the Sunday night. But, as against that, Nemet had no reason to tell an untruth about the matter; for he acknowledged getting the message before setting out - as he said he did - for SPP that morning.

910 A fourth question is just what Chris Wheeler said to Nocera in his Sunday call; and just what message he left with Nemet's wife. I can be confident that he said he had a problem, that greenies were blockading him in. It is likely that he said, because I am satisfied this is what he had been told, that there would be no work at SPP coupe that week.

911 It is nonetheless probable, I consider, that he said to Nocera that the latter should come up the next morning, though he did not think they were going to be able to do any good; and that he left such a message for Nemet. The two men did not live far from SPP coupe. The precise course of events could not be predicted. The fact that the meeting was to be held did not mean that, if work could be done, work should not be done. After all, work meant money; whereas, at least in the short term, a meeting implied no work and no earnings.

912 It is, on balance, understandable that Chris Wheeler would have said to Nocera not to come early. It was one thing to tell a worker to come to work on the off-chance that something might be done. It was another thing to say to a man to come at his normal, very early time when the prospect of work, as Wheeler was entitled to perceive it, was poor.

913 Had Wheeler seen, early on the Monday morning, that the protesters had left, he might well have communicated that fact to Nocera and Nemet. But it does not follow, because he saw they were still there, that he would have telephoned either Nocera or Nemet and told them not to come. For it must always have been a question just what the protesters would do when faced by loggers wanting to work, particularly when the face-off was at a place outside a coupe.

914 Finally I should refer to Nemet's evidence as to how he learned that a meeting was to take place. I am not persuaded that he spoke with Ms Calvert on the Monday morning, although I acknowledge it is something he would have reason to particularly remember. It is more likely, I think, that the message left with his wife mentioned the meeting.

Trespass to goods and assault on Greig

915 Each of particular (b) to paragraph 5 and paragraphs 36-39 of the statement of claim is founded upon a plea that, whilst Greig was in his vehicle on the night of 24 to 25 January, rocks were thrown through several of its windows, this both causing damage and putting Greig in fear. The incident is alleged by particular (b) to paragraph 5 to have occurred at about 10 pm on 24 January, and to have involved a utility vehicle containing some of the defendants and/or other loggers. By paragraphs 36 and 39, the trespass to goods and assault is alleged to have occurred on 25 January, and to have been committed by the defendants and each of them, acting in concert with each other and with the other loggers.

916 Neither in the statement of claim nor in further particulars is any defendant or other person identified.

917 Evidence of the incident was given by each of Ms Jackson, Greig, McFadzean, Ms Dawson, Ms Lees, Bowles, Ms Epstein and Ms Garrett - the last-named specifically in connection with damage to Donato's van, which damage is not the subject of any claim. Fowkes and Ms Colson gave evidence of seeing its aftermath - that is, the damaged windows of Greig's vehicle.

918 Two of the witnesses who gave evidence about the incident itself, Ms Jackson and Bowles, said only that they had heard a vehicle - in Bowles' case, several cars - passing by in the course of the night; and of hearing breaking glass. Each of Greig, McFadzean, Ms Dawson, Ms Lees, Ms Epstein and Ms Garrett gave evidence also of seeing a vehicle - described variously as a "light coloured early model ute", "a ute," "a white four wheel drive" and a "utility vehicle". Save in the case of Ms Garrett, the vehicle identification evidence was challenged to greater or lesser extent; but I conclude, on balance of probabilities, that a vehicle generally as described did drive by, and that an occupant did throw rocks which caused damage to Greig's vehicle - and also to Donato's van.

919 I further conclude, it is really inevitable in light of my conclusion that the incident did occur, that the damage was inflicted by someone opposed to forest protesters, either a timber industry worker or a supporter.

920 That, however, is an end to the findings which I am able to make. Greig has not satisfied me that any particular individual carried out the conduct complained of; and I consider that it is simply impossible to conclude that the act was the act of the defendants in concert and in concert with other loggers.

921 Ms Jackson, Fowkes and Ms Colson gave evidence that, in the course of the Sunday afternoon, after the incident at the gate to SSP coupe, a man drove to the intersection, stopped and uttered a threat of doing damage. According to Ms Jackson, it was "Mick", by whom she meant, no doubt Nocera. According to her evidence he stopped his vehicle and yelled something to the effect "We are going to come back and get you guys", or "sort you out". [400] According to Fowkes, someone whom he was able to identify as Bernard Wheeler drove up in a Holden ute, stopped and said "What the fuck is this? I want to get through;" and "I'll be back with my fucking mates tonight. You'll be sorry." [401] At the time when this vehicle stopped, Chris Wheeler's smoko hut was sitting on SRR, where Fowkes and others had pushed it, causing some degree of obstruction. Ms Colson described an incident similarly; but she did not identify the driver as Bernard Wheeler, or at all. [402]

922 It seems clear, despite the variations in the accounts, that the witnesses were all talking about the same incident. I conclude that it did occur, and that it was provoked by the smoko hut being on SRR. But I am satisfied that neither Nocera nor Bernard Wheeler was involved.

923 Nocera denied any such involvement. Further, I accept his evidence that he did not learn of the problem at SSP coupe until Chris Wheeler rang him on the Sunday evening. [403] Further again, Ms Jackson's identification was not supported by either of Fowkes or Ms Colson. It is, I should add, very clear that Nocera was not involved in the incident at the gate to SSP coupe, despite Fowkes' doubtful evidence to the contrary. [404]

924 Before passing from Nocera, I should refer to evidence given by Greig of remarks allegedly made to him on the Monday - whether he said that it was by Nocera or Pearce is far from clear. According to that evidence, one or perhaps both of them said:

[201]

Each of Nocera and Pearce denied saying such a thing, and their evidence accords with the probabilities of the situation. It is unlikely that any such admission would have been made, particularly as police were on hand throughout the week. Further, as a matter of fact I have concluded that Nocera did not make the threat attributed to him by Ms Jackson; and Pearce's evidence, which I accept, was that he only learned of Chris Wheeler being "locked up" from his boss on the Monday morning.

925 I dismiss the suggestion by Fowkes that it was Bernard Wheeler who drove to the intersection and made a threat on the Sunday afternoon. Bernard Wheeler was involved in the incident at SSP coupe. I accept his evidence, as I indicate elsewhere in these Reasons, that he thereafter loaded his truck at Riley's Ridge coupe before returning to his home; and later that day drove his loaded vehicle to Geelong. That time-frame aside, there is no disclosed reason why Bernard Wheeler would be driving down SRR that afternoon in a utility, when on any view he had earlier been in his truck, with his wife and children, at SSP coupe. Finally, for what it is worth, neither Ms Jackson nor Ms Colson identified Bernard Wheeler, who had been the driver of the truck involved in the incident at SSP coupe.

926 As to action in concert, Greig's claims in the present connection are really hopeless. Though there had been meetings attended by some defendants before 24 January, and though some response to action by forest protesters had there been mooted, nothing entitles a conclusion that by 24 January all the defendants and the so-called "other loggers" had formed a common design; still less than the common design embraced causing damage to property, or assault. In the event, the conduct by one, or perhaps more than one individual on the Sunday night could not be characterised as conduct in furtherance of a common design.

927 The claims now under consideration fail.

The protesters' intentions on the morning of 25 January

928 Most of the plaintiffs and other protesters who gave evidence asserted that they did not intend to stay at SSP beyond 25 January, and advanced a reason for intending to leave. This was the gist of their evidence:

s Ms Jackson 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. [406]

s Greig had been offered a job in a café at Apollo Bay. He was to have a work trial at 3 pm that day. [407]

s Dwan planned to return home that day to water his garden and sheep, and then visit his sick girlfriend in Apollo Bay. He agreed to give Kennerson a lift to SSP Track. [408]

s Ms Lees intended to head down to Apollo Bay and to visit friends at Glen Aire that afternoon. [409]

s McFadzean planned to return to Melbourne late that day or early on the Tuesday in order to go to work, although the Tuesday was a public holiday. [410]

s Ms Dawson had planned to stay in the Otways for a few days after travelling down from Melbourne with Ms Epstein, being on her way to visit friends in Tasmania. [411]

s Fowkes intended to pack up and go back to the base camp. He had no intention of remaining at SPP Track. [412]

s Ms Epstein was planning, when she arrived in the Otways, to stay just a couple of days. She had told her parents that she would be back on the Monday. McDonald was aiming to return with her on the Monday. [413]

s Kennerson went to SSP to say goodbyes. He was only going to be there briefly. Then Dwan was going to drive him to Apollo Bay. [414]

s Ms Garrett was rostered to work on 26 January at a café in Apollo Bay. [415] On 25 January she arranged with Greig that he drive her to Apollo Bay. [416]

929 Bowles, so far as I can see, gave no evidence of his plans; nor did Ms Colson.

930 Ms Jackson's account was to an extent supported by the evidence of her mother. [417] Mother and daughter had not seen each other for months, both having been overseas for a period. Mrs Jackson expected to see her daughter after she - that is, Mrs Jackson - returned to Australia, that being on 23 January.

931 McFadzean's diary shows that he had work appointments that week. That offers some support for his stated intention.

932 Ms Epstein's father did not give evidence of having been told by his daughter that she would be back on the Monday.

933 I have outlined the pertinent evidence. I go to my conclusions. Excepting Ms Garrett, who had no vehicle of her own, and regardless whether any of the plaintiffs and other protesters ever had a plan or intention as stated, I think it is highly likely that each of the protesters who was at the camp on the morning of 25 January had decided to stay; and that their intention, individually, was to preclude work at SSP coupe - certainly that day, and for an indefinite period. A number of matters, all operative before the arrival of the loggers' party, point in that direction. I have already addressed some of them in explaining why it was that the protesters set up camp at the mouth of SSP Track on 24 January.

934 Beyond those matters there are the following considerations:

• First, it is the fact that not one protester who gave evidence left the vicinity of SSP Track [418] in the period until about midday on 25 January.

• Second, that fact must be understood against the background that, in the course of the Sunday night, the vehicles of Greig and Donato had been damaged. If, as the protesters claimed, they feared logger violence, would not that incident, compounding the events of the Sunday, have caused them to leave unless they had a stronger reason to stay? Is not the likely reason that they could close down Chris Wheeler's coupe, at the one time both striking a blow against "illegal logging" and demonstrating that they would not be intimidated?

• Third, McFadzean gave an account of why he went to the Otways on 24 January. He gave no satisfactory explanation why it was, in the face of what had happened, that he did not counsel the other protesters to leave.

• Fourth, I am satisfied, as will appear later in these Reasons, that on a series of occasions on the morning of 25 January, and again after the arrival of the loggers' party, McFadzean told different people, in effect, that there would be no work at the coupe at least on that day.

• Fifth, after the loggers' party arrived, neither before nor after the initial conversations between Ms Calvert and protesters did any of the identified protester vehicles leave or attempt to leave the intersection; nor did any identified protester, excepting on their accounts Ms Jackson and Greig, and McFadzean on 26 January, attempt to leave on foot via SRR.

The morning of 25 January: Nemet, Nocera and Wilson

935 Nemet and Nocera gave evidence that they went separately to SSP intersection on the morning of 25 January. It was their intention to work if they could, notwithstanding the bleak assessment made by Chris Wheeler and communicated, directly or indirectly, to each of them. Each of them gave evidence of being told, in effect, when at the intersection that there would be no work.

936 According to those of the plaintiffs who could give evidence about the matter, neither of Nemet nor Nocera came to the intersection early that morning. In that connection a number of the plaintiffs gave evidence of getting up at a time which would not have permitted them to witness the alleged visits.

937 Before going to the competing evidence given with respect to Nocera and Nemet, I should refer to evidence given by Wilson. He said that he went by the intersection that morning on his way to work at Riley's Ridge coupe. It was at about 6.30 to 6.45 am. He saw vehicles parked on SSP Track. Other vehicles would have been unable to drive down the Track.

938 So far as I can see, Wilson was not cross-examined to suggest that he did not drive down SRR at that time on that morning. Other evidence suggests that some work was done at Riley's Ridge on the morning of 25 January. His evidence of what he did, and his observations, should be accepted.

939 I turn to the areas of dispute. I begin with Nocera, because on his account he went to SSP earlier than did Nemet.

940 Nocera said that he got out to SSP Track at about 7.30 am:

[209]

947 He told Ms Calvert about the episode when at the Beech Forest meeting.

948 Greig gave evidence that he got up at sunrise. That morning lots of people came to the intersection. He was talking about the arrival of the loggers' party. Cross-examined, he said he did not think he was aware that three loggers had visited the camp early on the Monday morning and that Wilson had been told there would be no work happening that day. [425]

949 Dwan gave evidence that he drove from the base camp to SSP on the Monday morning with Kennerson as his passenger. He said that travel along SRR was one element of the quickest journey to his home. But he also gave evidence that Kennerson had said he wanted to say goodbye to people who had earlier left for SSP.

950 His further evidence was that on his arrival he parked his vehicle on the western verge of SRR [426] and that not long afterwards, from memory in mid-morning, loggers' vehicles arrived from both directions along SRR. But he also said that before the loggers' vehicles arrived he had driven Ms Dawson to a point where she could make a phone call, and that after their return Fisher had arrived.

951 Cross-examined, Dwan said that he arrived at SPP Track at about 10 am. He recalled being told by McFadzean and Ms Lees that at least two loggers had come by that morning. Dwan was not cross-examined to suggest that he had said anything to a logger that morning along the lines suggested by Nemet in his evidence. Indeed, it was suggested that Nocera and Nemet had been told "no work today" by McFadzean and Ms Lees. [427]

952 Ms Lees gave evidence that she got up, she believed, at about 9 am. They were a little unsure why no logging trucks had gone through that morning. She put Fisher's arrival at about 9.30 am. She denied that at least two loggers came by in their utes that morning, and denied that she or McFadzean had told at least two workers that there would be no work at the coupe that week. [428]

953 McFadzean gave evidence of rising after dawn. A vehicle arrived, containing Dwan and Kennerson. Another vehicle left. Then, later, Fisher arrived.

954 Cross-examined, McFadzean denied that loggers had arrived at the intersection on two occasions that morning and had spoken to him. He denied saying to Nemet, in response to a question whether there was any chance of getting through to work, "Not today you won't". The cross-examiner had put to him that Nemet would say that he had spoken with McFadzean, Ms Lees and possibly others. [429] He denied telling Dwan that at least two logging workers had come by that morning.

955 McFadzean said that he would have remembered telling a worker that he could not go to work because it would have been a significant thing. It would involve a decision to stop forests being logged and to prevent people working. [430] It had not been his intention that morning not to allow trucks to go into and out of SSP coupe. He did not recall being party to any relevant discussion; though his understanding was that the other protesters were going to stay put at that stage. [431]

956 Ms Dawson, not aided by wearing a watch, gave evidence that she got up at roughly 8 o'clock. Dwan arrived early on the Monday morning. She did not remember seeing one of the loggers, nor one of her group speaking to a logger who was asking to be able to go to work. She was not told that other loggers had come to SSP Track earlier that morning.

957 Bowles said that he woke at about 8 or 9 o'clock. On his account a couple of cars drove past, pulled up, and went away. Then he said that they sort of slowed down and had a look and kept going. He thought they might have done a "U" turn and then came back. [432] He did not remember exactly what time this was. He had not seen a worker stopping his vehicle at the intersection at about 8 o'clock. McFadzean had not said anything pertinent to him.

958 Fowkes gave evidence of waking up at about 8 o'clock. That morning Ure, Mills and Nick departed and Dwan arrived at some time. So did Jaskierniak, and Ms Douglas.

959 In cross-examination, Fowkes gave evidence that the loggers' party arrived about 10 am; and before that he had seen no loggers' vehicles. He noticed Jaskierniak and Ms Douglas in the camp at about 9.30 am. When an answer to interrogatory [433] was put to him, in which he swore they arrived early Monday afternoon, he said he was unsure which was correct. [434]

960 Ms Colson gave evidence, in cross-examination, that she had neither seen nor heard anything relevant. Neither, to flesh out her evidence about the Monday morning's events, did she remember that Fisher had attended.

961 Ms Epstein gave evidence that she saw Dwan arrive, and Mills and Ure leave. She could not say at what time she awoke, not having a watch. After walking the dogs she saw three vehicles drive past, and 10 to 30 minutes later the loggers' party arrived. In cross-examination she said that she heard about Fisher's attendance.

962 Kennerson's evidence was that Dwan arrived at the base camp on the Monday morning, and that Dwan later drove him to SSP. They got there between 9 and 10 o'clock. Dwan's evidence was that he arrived at the base camp on the Sunday.

963 Ms Garrett believed that she had got up late on the Monday, probably after noon. She gave no pertinent evidence.

964 I go to my conclusions. I consider it likely that Nocera did go to SSP intersection early on the Monday morning. His explanation why he went there was credible. It was compatible with what I have concluded Chris Wheeler said to him on the Sunday evening.

965 I further consider it likely that McFadzean made a remark to Nocera consistent with the latter's evidence. It was, as will be seen, a remark the general substance of which, I later conclude, he replicated twice that morning; a conclusion reached in the face of McFadzean's denial that he made such a remark on any occasion that morning.

966 I set little store by the accuracy of Dwan's evidence; but his account of what he was told by McFadzean and Ms Lees was some evidence to support a conclusion that Nocera did drive to SSP Track early that morning.

967 Dwan's evidence could also provide some support for a conclusion that Nemet drove out to SSP intersection on the morning of 25 January; but not, of course, for Nemet's evidence of an alleged conversation with Dwan. I do not accept that any such conversation took place. Whilst I was impressed by Nemet's explanation why he went to the intersection, and whilst I allow for timing uncertainties within his evidence as well as within the evidence of the plaintiffs, I think it is unlikely that Dwan had arrived at SSP intersection by 8 or 8.30 am on 25 January. Moreover, defendants' counsel when cross-examining did not suggest that Nemet had spoken to Dwan; but rather to McFadzean, or to McFadzean and Ms Lees. Further again, by 8 or 8.30 Nocera had already been to SSP intersection; and on his account had returned to Nemet's home. Nemet put Nocera's arrival at a time after he had been to SSP intersection; but that does not fit.

968 As I said a moment ago, I was impressed by Nemet's explanation why he drove to SSP intersection that morning. It may be that his vehicle was one of the vehicles of which Bowles gave evidence. Just perhaps, despite Nocera's arrival, he decided to drive out to SSP and look at the situation for himself. It was not far to travel. That could explain his seeing Dwan's vehicle. But it would not fit his having any conversation with Dwan; and he gave no evidence of conversation with either McFadzean or Ms Lees.

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

969 Chris Wheeler gave evidence that a little bit before mid-morning he drove his ute up SSP Track from the coupe. He spoke to McFadzean and asked what was going on. McFadzean replied:

[211]

970 After that he rang Ms Calvert and told her how the camp was set up, roughly how many people. His understanding was that she was then on her way between Melbourne and Colac.

971 In earlier evidence Wheeler had said that this call was made at about 9 to 9.30, which would probably qualify for a "little bit before mid-morning" in the case of a man whose ordinary working day would already be hours under way by that time.

972 Wheeler affirmed the substance of the pertinent evidence in cross-examination. [436]

973 McFadzean gave short evidence about the alleged conversation in the course of cross-examination. Possibly, he did not remember, he spoke to Chris Wheeler that morning. He had not said what was attributed to him. In any event, no decision had been made to stop work at SSP. [437] This evidence was given in the context of it being put to him that he had said the same thing, in substance, to each of Chris Wheeler and Fisher that morning; and as well to a logger.

974 In my view it is likely that McFadzean did say to Wheeler words to the effect that the protesters were shutting him down. Whether he put a duration to it is uncertain. I conclude a little later in these Reasons that he told Fisher something along the same lines that morning. Further, such a position fitted in with what Fowkes had said to Wheeler on 24 January, with what seems to me to have been a likely response by the protesters to what they probably believed had been an attempt by Chris Wheeler and others to lock them in, with the fact that the protesters camped in augmented numbers at the mouth of SSP Track on the Sunday evening, with the fact that they remained at SSP Track, at least at times with vehicles parked across the Track, on the Monday morning, and with what I have concluded McFadzean said to Nocera that morning. There is also the fact that the altercation on the Sunday had involved Chris Wheeler and a Wheeler coupe; his coupes having been the subject of recent protester action.

975 I consider that McFadzean's denials of pertinent conversations with Nocera, Chris Wheeler and Fisher on the morning of 25 January were no mere faults in his recollection. By his own account, it would have been significant for him to have said the things attributed to him. It would involve a decision to stop forests being logged and to prevent men working; a decision which he and other plaintiffs denied had been made. Further than that, it would bear on the question whether the plaintiffs, as a matter of probability, made individual decisions or a collective decision to stay at SSP Track after the arrival of the loggers' party.

The Morning of 25 January: Fisher goes to SSP

976 It was common ground that the DNRE officer, Fisher, went to SSP on Monday 25 January. He did so in the morning. He spoke with McFadzean and Chris Wheeler. There was dispute in the evidence as to how it was that he came to visit the area; as to the time of his arrival and its temporal relationship with the arrival of the loggers' party; as to what passed between he and McFadzean; and as to what conversation, if any, he had with other protesters.

977 Fisher's evidence relating to 25 January was that he arrived at about 11.30 am for a routine coupe inspection. He saw 3 or 4 vehicles and up to about a dozen protesters at SSP intersection. He believed that a couple of vehicles were actually on SSP Track itself. There was also a small camp in the south eastern corner of the intersection.

978 He spoke to three people whom he knew - McFadzean, Dwan and Ms Lees. Towards the end of the conversation he asked McFadzean what blockading or protest activities they had planned for the particular day. McFadzean responded that he was unsure what they had planned but what he was certain of was that they would not be allowing any trucks to enter or exit the logging coupe. He gave no indication of the period for which that would be the position. [438]

979 Other than that, Ms Lees raised with him a concern that the coupe was not on the current WUP. He told her that it was. Also, a complaint was made about damage to vehicles.

980 The conversation, he said, lasted not more than 10 to 15 minutes. Then he went down SSP Track. He assumed that he had driven. [439] Chris Wheeler, I interpolate, said that he had done so. [440] He encountered Wheeler, whom he had to wake up, for Wheeler was sleeping in his ute. Wheeler told him, inter alia, that he believed there may have been a counter protest formed that day by CFMEU.

981 Fisher spoke to Wheeler for no longer than 10 to 15 minutes. He then left the area, he believed it was about noon. He drove north to the Turton Track intersection, and in the vicinity of the intersection encountered, inter alia, loggers with their vehicles.

982 Cross-examined, Fisher said he did not recall receiving a call from campers at SSP before he went there on 25 January. Certainly, he said, the first time he had any confirmation that action by loggers might actually occur was when he spoke to Chris Wheeler in the coupe. [441] The effect of his answers was to re-affirm his evidence in chief that he went to SSP for a routine inspection, not in response to a protesters' request, not in anticipation of a loggers' response.

983 Fisher made a diary entry concerning the events of the day. It was not made immediately. It was admittedly not quite complete, and it did not purport to be word for word. The witness was cross-examined about the entry. In my view the cross-examination really got nowhere on a relevant matter. In particular, no point was available that the diary entry did not attribute to McFadzean the remark of which Fisher gave direct evidence. I should add that a collateral challenge to Fisher's account, focusing upon there being no situation report, was in my opinion adequately answered by the witness. [442]

984 Dwan gave evidence that on the Monday morning he drove Ms Dawson to a place where there was mobile phone reception. She made a call. About 30 minutes after they returned to SSP, Fisher arrived. He, the witness, had a conversation with Fisher, who left shortly afterwards.

985 In cross-examination Dwan said that he suggested that Ms Dawson should call the Department, and ask for Fisher. The protesters' concerns were about damage to vehicles and being abused. They were fearful.

986 Further in cross-examination Dwan said he did not hear McFadzean saying to Fisher that there would be no access through to the coupe as far as the protesters were concerned, that no trucks would be allowed in that week. [443] He was not privy to such a conversation.

987 Ms Lees gave evidence that Fisher arrived at about 9.30, she believed. She spoke to him about damage to the cars. He said that was a matter for the police. He pointed out where she was on the map. He asked if they were blockading. She replied that that she did not know, they had not made a decision. She saw McFadzean speak to Fisher. She did not hear anyone say that it was proposed to blockade SPP coupe. [444]

988 McFadzean gave evidence that he only had a brief discussion with Fisher. He told Fisher that they intended to stay at least for the moment. [445] He was not present when anyone else spoke with Fisher. At no time whilst at SSP intersection did he hear anyone say that they were going to prevent logging at SSP coupe,

989 Fisher, he said, left immediately after their conversation. The loggers arrived "not for several hours but much later in the day." [446]

990 Ms Dawson gave evidence she could not remember going anywhere with Dwan on the Monday morning. She said also, in substance, that she had no recollection of speaking to Fisher in a phone call. [447]

991 Bowles gave evidence of seeing 3-4 DNRE officers on the Monday. He could not recall the time. He identified Fisher as one of the men. His evidence in cross-examination [448] took the matter no further.

992 Fowkes gave evidence of having no pertinent recollection; [449] likewise Ms Colson. [450] Ms Epstein said that she heard about Fisher's visit. [451] Kennerson said only that he saw a DNRE officer at the intersection.

993 Chris Wheeler gave evidence that Fisher wanted to know, when they spoke, why he had not notified Fisher that he was blocked in. He told Fisher that they were going to try something a bit different; although at the time he did not know what was going to happen. Fisher said he would prefer the department to handle it. He told Fisher that they had not been doing very well and that the protesters were basically laughing at them. [452]

994 In my opinion Fisher was a truthful witness with a good but not perfect recollection of events - events that day, events prior thereto and events which occurred on 29 January. Certainly he had been caught up in incidents involving protesters before 25 January; but there is no basis, in my opinion, for treating him other than as a witness who did his best to assist the Court.

995 So far as the events of 25 January at SSP are concerned, I readily conclude that he arrived for the purpose which he stated. It is extremely doubtful whether any call was made by a protester to DNRE that morning. But if a call was made, then it was not to Fisher, and his visit was coincidental.

996 Probably, as I said a little earlier, his arrival was a little earlier than he recalled being the case.

997 I further conclude that Fisher's account of his conversation with McFadzean was reliable. Just as I consider, to the contrary, that McFadzean's account of what he said was sanitised, and, in addition was wrongly set in time and was wrong in sequence.

998 Apart from my assessment of Fisher's reliability as a witness, it seems to me, having regard to the context in which this particular conversation occurred, a context which I have described at length, that it was much more likely that McFadzean would say what Fisher attributed to him than he would say what he himself deposed.

999 It may be that neither Dwan nor Ms Lees heard what McFadzean said. Nothing turns on that so far as my acceptance of Fisher's account and rejection of McFadzean's account is concerned.

1000 I doubt that Ms Lees said to Fisher that she did not know if they were blockading, that they had not made a decision. It is more likely that she confined herself to the matters which he specifically recalled. Ms Lees, I should add, was evidently a fair way out in her estimate that Fisher arrived at about 9.30.

1001 It is, I think, of some significance that McFadzean told Fisher what the protesters, collectively, were going to do. Given all the evidence of the plaintiffs about individual decision-making, and about group decisions, I think it is clear that McFadzean assumed, by common concurrence, if not by assertion - whether express or implicit - a role as spokesman and negotiator for the protesters during SSP week. Others were somewhat involved in that connection - specifically Ms Lees and Dwan. Even so, the evidence strongly favours a conclusion that McFadzean's role in dealing with logger representatives, police and DNRE was unique.

1002 What McFadzean said to Fisher - and as well to Nocera and Chris Wheeler - on the morning of 25 January shows, in the event, that the protesters then present at SSP intersection intended to interrupt logging operations at SSP coupe for an indefinite period. That could be done, as events in the vicinity of others coupes showed, without protesters entering a coupe. So, for example, access to a coupe could be denied - as by parking cars abreast across a track. Indeed, the mere presence of protesters with their vehicles close by a coupe itself conveyed a significant threat. Even if a logging vehicle was apparently free to enter a coupe, who could say that its egress would not be barred? That was necessarily a disincentive to vehicles travelling into coupes.

The Beech Forest Meeting

1003 I have described already the circumstances in which the Beech Forest meeting was convened; and how it was that loggers learned of it. There was no single method of notification.

1004 Whatever precisely had been said at the Colac and Skillshare meetings about possible action by loggers, the taking of action had been discussed in the framework of it being a response to action by forest protesters. I consider that there is no doubt that those who attended the Beech Forest meeting understood that Chris Wheeler was being blockaded in his coupe by protesters. That was the type of situation which, depending on the circumstances, had previously been contemplated as apt for response by the loggers.

1005 Ms Calvert gave evidence that when she arrived at Beech Forest there were 20 vehicles and 30 men, the latter being predominantly loggers. Estimates made by other witnesses varied. Ms Calvert's estimate was probably close to the mark.

1006 Ms Calvert said that she ran through Wheeler's situation. The circumstances were such that she would consider a picket line. She went through the protocol. She described it, and fleshed out its four aspects. No decision was made to establish a picket. She wished to look at the physical situation. If there was to be a picket, she would inform the police. She made it clear that she was to have first contact with the protesters. The meeting lasted 15 to 20 minutes, following which she rang and left a message for Robinson, and then set off for SSP intersection in convoy with other vehicles.

1007 In the course of the meeting she reported - this was her recollection - the window-breaking incident, having told her about it in a phone call that morning. No person admitted involvement, nor did anyone admit knowing who had been involved.

1008 I consider that Ms Calvert's account of the meeting was generally accurate. It fits the circumstances as she and the loggers understood them. It is very likely that she mentioned the protocol and fleshed out its four aspects in the context of talking about possible action by the loggers. For this was a meeting attended by many more people than had attended the Skillshare meeting; and possible action was imminent.

1009 Ms Calvert described in her evidence, in the context of the Skillshare meeting, the way in which she expanded upon the four aspects of the protocol. She said that she gave a similar description at the Beech Forest meeting.

1010 As to the "no violence" aspect, she and the union would not condone violence. There must be a perception of no likelihood of violence. There must be no hands on, no touching, no harassment. The men must be careful not to be seen as provocative.

1011 The "no alcohol" aspect was an absolute rule.

1012 "Clear chain of command" meant that she was the decision-maker. Further, there needed to be communications downward, and also with the police. The police were to be informed before any picket was established. That would give the police a chance to instruct them about any police concerns.

1013 Obedience to police directions was her position, and the union's position.

1014 By "communication downward", Ms Calvert was referring to a system whereby she contemplated using some of the loggers' leaders as conduits for passing information to the body of loggers, and to stand in for her if and when she was not on site.

1015 There is a question whether, in the context of "no violence", Ms Calvert referred at the Beech Forest meeting to harassment, and particularly to sexual harassment. She said that she did. [453] A number of the defendants who attended the meeting said that harassment had not been mentioned. It is clear, I think, that they were focussing on the word "harassment". It does not follow that the substance of what she asserted she said was not said.

1016 I should briefly refer to other evidence given about the Beech Forest meeting. Molloy gave evidence of being rung on the Sunday night and being told that something was going on at Chris Wheeler's coupe. He was evidently told about the meeting. On the Monday, he worked for hours, then went to the meeting. Ms Calvert spoke along the lines which I have already outlined. He estimated that about 15 loggers attended the meeting, and that the meeting lasted about half an hour. Harassment - apparently as a word - was not mentioned [454].

1017 Nocera estimated that there were 20 or 30 people at the meeting. His evidence showed that he was uncertain whether Chris Wheeler attended.

1018 He said:

[219]

Preface to the evidence about SSP week

1028 Putting to one side evidence given with respect to matters which occurred or were said to have occurred before the arrival of the loggers' party at SSP - that is, matters which I have already addressed - evidence about SSP week was given by each of the plaintiffs and by Ms Garrett, Kennerson, three members of what I shall call "the Gross party", Ms Nelson and Mullaly. Evidence was also given by each of the individual defendants save Arbuthnot and Benson, and by Bernard Wheeler, Robinson, Senior Constable Johnson ("Johnson") and Fisher.

1029 A number of potential witnesses were not called. Some were identifiable by name.

1030 Ure, Mills and "Nick" spent the Sunday night at the plaintiffs' camp and left on the Monday morning. Jaskierniak and Lucinda Douglas ("Ms Douglas") arrived at the camp at some stage on 25 January, and left through the bush with Greig and Fowkes on 26 January. Donato was present at the camp throughout SSP week. So were McDonald and "Garry". A "Dutch tourist" accompanied the Gross party on its journey through the bush to SSP on the afternoon of 28 January. Ms Miller, reporter from "The Age", was at the camp on 26 January. Excepting possibly Ms Miller, and certainly the Dutch tourist, the people whom I have just identified might be said to have been in the plaintiffs' camp.

1031 Counsel for the plaintiffs submitted that there were many persons whom the defendants' side could have been expected to call. No explanation had been offered for failure to call any of them. Counsel referred to the defendant, Wayne Benson, to Dent's father, Light, Dr Serry (who had examined McFadzean, Dwan, Ms Jackson, Ms Lees and Greig for medico-legal purposes on behalf of the defendants), a man named Lynch, and a man named Nowell - otherwise referred to in the evidence as "Kermit". Counsel mentioned also the failure of the defendants to call any logger who was a member of CFMEU and who was at SSP during the week, and their failure to call any logger (apart from the defendants and Bernard Wheeler) who was at SSP during that period. Further, plaintiffs' counsel submitted, the defendants should have been expected to call - in addition to Robinson and Johnson - each police officer who had been shown to have a connection with the week's events: Inspector Sorlie, Sergeant Merry, Senior Constables Orchard and Gurrie, Constable [460] Tregellas and Constable Van Kempen. Further again, the defendants should have called the senior departmental officer, Rofe. I will later refer to some of the submissions made by counsel with respect to each of the persons named. I have, of course, already mentioned Light in connection with the events of 24 January, and have briefly adverted to the issue of police witnesses; whilst the significance sought to be attached by the particular plaintiff to the defendants' failure to call Dr Serry requires no elaboration.

1032 There is, I consider, some importance in the failure of one or other side to call particular potential witness. I will highlight later in these Reasons the instances in which I have concluded that the failure was significant. I should add that in concluding that failure to call a particular witness was significant I have in every case taken into account the fact that this was a long trial; and that there must at some time be an end to calling evidence.

1033 Having noted a little earlier that a great deal of evidence was given about SSP week, I should immediately say that a lot of it was simply wrong. I am not speaking here of things about which there was an intractable conflict in the evidence, but rather of matters in respect of which the true position could be ascertained with reasonable certainty. An instance of the former is the allegation by Dwan that, in a one on one situation, he was threatened by Nocera, then Flannigan. An instance of the latter is the approximate time at which the loggers' convoy arrived at SSP Track after travelling south along SRR on 25 January. The approximate time at which its first elements did so is ascertainable by reference to the evidence of Fisher and Johnson - which is not to say that their evidence precisely coincided, and which is not to say that in any event I did not prefer the reliability of estimates of time made by a number of the defendants to estimates made by a number of the plaintiffs. [461]

1034 It does not follow, because a plaintiff or defendant gave wrong evidence about SSP week with respect to a particular matter, that the evidence was given untruthfully. I have made allowance for the circumstance that the witnesses gave their evidence years after the relevant events; and that witnesses on both sides had strong feelings, which might have operated to cloud the reliability of their recollections.

Things which happened and which did not happen during SSP week

1035 Given the welter of evidence about what did and what did not happen during SSP week, and the conflict in a good deal of that evidence, a number of conclusions may nonetheless be readily reached that particular things did or did not happen. It is desirable that I set them out immediately. In some instances, although it can readily be concluded that something did or did not happen, one or more aspects of the event or non event was in serious contest at trial. I will identify any such aspects; and later resolve them, if I have not already done so. For I have already addressed some areas of dispute with respect to things done and said, and intentions held, on the morning of 25 January. In setting out those things which I can readily conclude either did or did not happen, I will not include very incident addressed by the evidence; but rather matters which set the framework for resolution of the plaintiffs' claims. I will exclude altogether reference to things which were wholly in contest.

1036 Against that background, I conclude (with any necessary qualifications) that:

s On 25 January, in the morning, Dwan drove Kennerson from the base camp to SSP intersection. The time of their arrival was a disputed issue.

s On 25 January, in the morning, Ure, Mills and "Nick" left the plaintiffs' camp. Ure and Mills left in their vehicles. "Nick" travelled with Mills.

s On 25 January Jaskierniak and Ms Douglas arrived at the camp. The time at which they arrived, and the means by which they arrived were in the one case in dispute, and in the other case not disclosed.

s On 25 January, at about 11.00 am, Ms Calvert addressed a meeting of loggers at Beech Forest. The meeting lasted for 15 minutes or so. I have already expressed my conclusions as to what she said.

s Probably at about the time when the Beech Forest meeting was being held, rather than at 11.30 as he recalled, Fisher arrived at SSP Track. He remained in the area for about half an hour. Why he attended there when he did was in dispute. I have already expressed my conclusion about that matter.

s Whilst in the area he spoke to McFadzean. There was dispute as to what was said in that conversation. I have already expressed my conclusions in that connection. He also met with and spoke to Chris Wheeler. He did so at a point some distance east of SRR, having driven his vehicle along SSP Track.

s Fisher was able to drive along SSP Track although it was his recollection that, on his arrival, several protesters' vehicles were on the track itself. Notwithstanding his ability to pass by, protesters' vehicles blocked the track at times that morning, and at other times during the week, to an extent that prevented vehicular passage. That is not to say that any such passage was attempted.

s Fisher was not requested by Chris Wheeler on 25 January to take action to remove the protesters' vehicles from SSP Track. Nor was any such request communicated to him before 29 January.

s At 11.30 a.m. on 25 January Johnson, officer in charge of the police station at Forrest, was informed by Sergeant Merry ("Merry") of the Apollo Bay police station of DNRE concern of a confrontation between approximately 10 protesters and 30 loggers at "Seaview Track". [462] Evidently DNRE had learned of a looming confrontation. It is doubtful that it first did so in the call which Fisher said that he made to a fellow officer after leaving SSP intersection.

s Merry directed Johnson to attend "Seaview Track", and the latter did so. At the Turton Track intersection, at 12.05 p.m., he met and spoke with a departmental officer. A number of other people were then in the vicinity of that intersection. He drove then to SSP intersection, arriving at 12.15. He was able to drive right to the intersection, notwithstanding the presence, as he estimated, of "50-60 CFMEU members, family and supporters," [463] whom he said in viva voce evidence were basically spread from Turton Track intersection down to SSP intersection.

s He spoke to Ms Calvert and McFadzean. The circumstances in which he spoke to McFadzean, and what was said in the conversation was in contest.

s The loggers and supporters seen by Johnson consisted in part of persons who had attended the Beech Forest meeting and had thereafter travelled to the vicinity of SSP intersection in convoy, probably arriving a little before midday. In part also the congregation was made up of women and children who had "tacked on". The loggers had a general ability to communicate between each other - that is, when in their vehicles - by UHF radio set to a particular frequency; and probably they could communicate with their families, if not by telephone, in such a way.

s Not long after the arrival of the loggers' convoy from the north, a number of loggers' vehicles approached SSP intersection from the south. Johnson's evidence [464] suggests, and I conclude, that this did not happen before his arrival. That is not to say that some vehicles which arrived in the convoy from the north did not pass through the intersection and park south thereof.

s The drivers who approached both from the north and the south parked their vehicles on the verges of SRR; and in some instances and at some times during the balance of the day on SRR itself.

s Ms Calvert initiated conversation with the protesters not long after her arrival. At that stage there were, depending upon the time of arrival of Jaskierniak and Ms Douglas, and depending upon the precise whereabouts of a man named "Ricky", 15 or 18 protesters in the vicinity of the intersection; as were vehicles belonging to McFadzean, Ms Lees, Dwan, Greig and Donato.

s Apart from her initial conversation, Ms Calvert participated in a number of conversations with protesters in the course of the afternoon. She mainly spoke with a few protesters, notably McFadzean, Ms Lees and Dwan. Generally speaking she was accompanied by one or more loggers when the conversations took place. At times, other protesters were nearby a particular conversation. Video footage was made of some of the conversations. The cameramen were Nocera and Molloy's son Jacob, a boy then aged 10. What was said in the various conversations, some of which is discernible from the video footage, was a matter of greater or lesser contest at trial.

s From the time when the loggers' convoy arrived from Beech Forest on 25 January until, relevantly, about 10.30 a.m. on 29 January, loggers and their vehicles were present at SRR in the vicinity of SSP intersection. The number of loggers, in which description I include women and children, varied. The greatest numbers were present, I am satisfied, on the Monday and Tuesday. On and from the Wednesday, a number of loggers went back to work; and school resumed that day. [465]

s The loggers, their families and supporters travelled to and from the vicinity by vehicle. During the course of the week, vehicles were parked on the verges of SRR to the north and south of SSP intersection. The width of the verges, as I have previously noted, varied. It is apparent that vehicles which were parked to the south of SSP intersection and on the western side of SRR were able to park, and did park, wholly off the surface of SRR. Other verges were not so wide, and vehicles parked there may still have intruded onto SRR. I have already concluded that on 25 January some vehicles were parked at times on SRR itself. It is probable that vehicles were so parked at times on 26 January; and possibly on occasions later in the week - although then the number of loggers and their supporters in the vicinity of the intersection was reduced.

s Other than on 25 January, any vehicles that were parked, wholly or partly, on SRR, were very likely parked to the north of the intersection.

s It appears that at one stage on 25 January there was a complete physical obstruction of SRR. Otherwise, it can only be said that any obstruction of SRR was at least partial.

s On the occasion when SRR was obstructed totally, it would have been necessary to move a vehicle or vehicles in order that there be passage along the road north and south of SSP Track. On occasions when a vehicle partly obstructed SRR, that may have been necessary.

s There is no evidence of obstruction to the passage of police vehicles during the week. Such police evidence as was given was to the contrary. If there was any obstructing vehicle, it must have been moved. There was a police presence in the vicinity of the intersection, save for very occasional absences, and perhaps at shift changeovers, between the time that Johnson first attended and the time when the protesters left the area on 29 January. The presence consisted of a policeman and police vehicle, the latter being parked at the intersection, often but not always close to a banner which the protesters erected across the mouth of SSP Track on 26 January. [466] There were, in the event, multiple occasions each day when a police vehicle passed along SRR.

s There was evidence of a single complaint by a member of the public during the course of the week with respect to access up and down SRR. The complainant, as Robinson recalled the matter, was a lady who had rung, talking about "protesters starving and requesting Red Cross." [467]

s During the afternoon of 25 January various steps were taken to enable the establishment of a loggers' camp. Nocera and Flannigan went to Kawarren and returned with a caravan. Just why they did so is a matter which I shall later address. [468] By day's end the caravan had been positioned on SRR just north of the north-western corner of SSP intersection, set diagonally. Pearce went to the coupe where he was working and returned with his "work hut" - a caravan. He positioned it to the south of the intersection, on the wide western verge of SRR. Wayne McGee's father brought lights and generators to the vicinity of the intersection. A portable toilet was brought to the area, and was positioned well north of the intersection on the western verge of SRR. McGee's father also brought a 44 gallon drum with him. He cut it in half, welded legs onto the halves, and thereby constructed two wood heaters. He further made legs for a large barbecue which had been brought to the vicinity of the intersection. The barbecue was set up to the north of the caravan near the eastern verge of SRR. One of the wood heaters was located to the north of the intersection, near the caravan and barbecue. The second was located at the camp which some loggers established to the south of the intersection on the wide western verge of SRR.

s Each night that week lights, powered by the generators, operated in the vicinity of SSP intersection. The number of lights, their disposition, their intended and actual effect, likewise the number, disposition and impact upon the protesters of the generators, were matters in dispute.

s Each day, wood was cut by chainsaw to feed the fire at the loggers' north camp.

s On some occasions, on some nights at least, chainsaws with bars and chains removed were run by loggers with an intention of annoying the protesters. So also, at times loggers beat on makeshift drums with such an intention. The number of chainsaws so run, the number of nights on which they were run and the frequency with which they were run, were all matters in dispute; likewise the number of nights on which and the frequency with which the makeshift drums were beaten.

s Apart from the Monday morning departure of Ure and Mills (with "Nick") in their vehicles, no protester who had a vehicle at SSP intersection attempted to leave the intersection in his or her vehicle at any time on 25 January - that is, whether before or after the arrival of the loggers' party. [469] Nor did any protester who had a vehicle make any attempt to leave the intersection in that vehicle at any time between 26 January and the morning of 29 January.

s Excepting Ms Jackson, about the circumstances of whose alleged attempt to leave there was considerable dispute, and possibly Greig, no protester attempted to leave the intersection by walking north or south along SRR at any time on 25 January. No protester accepted Ms Calvert's invitation, which was surely made that afternoon, to "grab" her if the protester wanted to leave, and she would facilitate that person's departure.

s I have said that loggers, their families and supporters were present in the vicinity of the intersection in varying numbers between 25 and 29 January. It is hard to gauge the greatest number of persons that were present at any one time during the week, in part because the group was spread out over a distance north and south of the intersection. I very much doubt that it ever exceeded 60. [470] From the Wednesday onwards it is very likely that often it did not exceed half that number, particularly during working hours.

s In the numbers to which I have just referred I include loggers stationed at Turton Track intersection. That takes me to another matter. From the Monday late afternoon or evening, some loggers, not many at any one time, were stationed at that intersection. They were there, I am satisfied, for two purposes: to stop any more protesters getting in; and to exclude people on the loggers' side who were considered to be potential troublemakers, or who seemed to be affected by alcohol, from getting to SSP intersection. [471] Until 26 January, I add, the protesters at SSP did not know that loggers were stationed at Turton Track intersection.

s It is not the case that each of the individual defendants was present in the vicinity of SSP intersection or at the Turton Track intersection throughout SSP week. Omitting reference to Arbuthnot, Brian Wheeler and Wayne Benson, to whom I refer discretely later in these Reasons, the burden of the evidence was as follows:

[222]

s Ms Calvert described the loggers' presence at SSP intersection as a "picket". She so described it to protesters when indicating an intention of setting it up on 25 January, and she so described it to others during the week, and in evidence. Not all defendants acceded to the proposition that a picket was in place during that week. The physical boundary of the picket, assuming its existence, was a matter about which the understanding of the individual defendants, on their accounts, varied; likewise, if such evidence be accepted, the basis upon which, from time to time, a protester could have passed through it. That said, no defendant assented to the proposition that, assuming a picket was in place, it extended into the bush, at least beyond "sight and sound". Whether the evidence of the defendants generally concerning the picket should be accepted, and the effect of such evidence, were matters in dispute.

s Ms Calvert described the picket as an "act of persuasion". Allied with her instruction that there was to be no violence, the import of her evidence was that, had a protester approached the picket, determined to pass, the protester would not have been hindered. Whether that was the truth of the situation was a matter of dispute.

s Accepting for the moment that a picket was established on 25 January, there were at most four instances during the week when it assumed anything of a physical manifestation on SRR. Those instances occurred on the afternoons of 25 January and 26 January.

s The first instance, I have already said it was a matter in dispute, was when Ms Jackson walked north along SRR. There is no doubt that she did walk north; and that a group of loggers and others stood in front of her. The substantial questions are what she intended to do, whether she attempted to pass by, and if she did, whether the group which faced her did anything to prevent her.

s The second possible instance arises out of Greig's disputed evidence that he attempted to leave but was rebuffed.

s The third instance was when Ms Nelson and Ms Gross came to SRR, north of the loggers' party, with a box of food. I have no doubt that Ms Nelson said that she wanted to pass through the loggers' group to SSP intersection; and that loggers positively refused to let her do so, albeit that the incident did not involve her being touched.

s The fourth instance was when, on his account, McFadzean sought to leave the area on 26 January by a route which partly included SRR.

s There was a second instance when a group of loggers refused to let additional people into the protesters' camp. It occurred on the afternoon of 28 January, on SSP Track east of the protesters' camp. The loggers' group certainly refused to allow members of the Gross party, who had arrived through the bush, to continue westward along SSP Track and so enter the plaintiffs' camp. In the course of that incident, some of the plaintiffs were at some stage in the company of the newcomers. There was a dispute whether those persons were prevented from returning to their camp. I have earlier noted the pleading problem in that connection; and have resolved, despite the problem, that the plaintiffs said to have been affected should be able to rely upon pertinent evidence in support of their pleaded case of false imprisonment.

s Ms Calvert was not nearby at the time of the incidents on 25 January involving Ms Jackson and Ms Nelson. Nor was she nearby, it appears, at the time when Greig, on his account, attempted to leave via SRR. The same situation obtains with respect to McFadzean's alleged attempt to leave on 26 January. Again, she was not nearby when the Gross party was initially prevented from walking westward on 28 January.

s Several protesters left SSP through the bush during the week, and returned. Greig and Fowkes did so on 26 January.

s Several protesters left SSP through the bush during the week and did not return. Thus, Jaskierniak and Ms Douglas on 26 January.

s Greig, Fowkes, Jaskierniak and Ms Douglas were picked up by Tipler and Ms Nelson at Turton Track on 26 January. They were driven, eventually, to Apollo Bay. What Greig and Fowkes did there was in dispute. They were driven back to Turton Track, with Ms Gross, by Ms Nelson.

s Ms Gross returned with Greig and Fowkes through the bush to SSP.

s The Gross party, that is the father and younger sister of Ms Gross, a Mr Forester ("Forester") and the Dutch tourist walked from Turton Track through the bush to SSP Track on 28 January. They eventually left that day via SRR.

s In all, then, four protesters, including one woman, left through the bush; and seven people, including two of the protesters who had walked out, and including also two women and the Dutch tourist, walked from Turton Track into SSP Track during the week. The length of time that the journeys took was certainly an issue in trial. So also, according to the defendants, was the difficulty thereof - if not explicitly, then implicitly by reference to the time which the journeys took and to other considerations including the sex and age of some of the travellers.

s Apart from the protesters who in fact left through the bush, two of them later returning, according to their evidence very few of the protesters made any attempt to leave SSP intersection on foot by any route.

s Between 25-29 January each of Dwan, Ms Lees, Ms Dawson, Bowles, Ms Colson, Ms Epstein, Kennerson, Ms Garrett, Donato, McDonald and "Garry" remained at the protesters' camp - which is not to say that all of them at all times remained in the immediate area of the camp. Those who did not do so included Ms Lees, Ms Dawson, Ms Epstein and Kennerson.

s On 25 January Oren put out a press release headed "Violence Flares Again in the Otways". It referred to the incident on the night of 24 January in which windows on vehicles belonging to Greig and Donato were broken. How Oren was in receipt of that information on 25 January, so far as I can see, was not disclosed by the evidence. But it seems clear that word was about in conservationist circles in Apollo Bay on 25 January that something was happening at SSP. Ms Gross gave evidence that someone who "had come through the health food shop" that day had told her that people were trapped. [472] When she met Ms Nelson that day she "found out what was happening", and went with Ms Nelson to SRR. For her part, Ms Nelson gave evidence that she was returning home from Melbourne and visited the base camp. She believed someone might have said that people had gone and not come back. She knew that SSP coupe was "the first coupe that there was to be scouting at on the west". [473] That is why she went there. It was coincidental, as I understand her evidence, that she was carrying a box of food.

s On 26 January "The Age" reporter, Ms Miller, went to SSP with a photographer. She arrived late in the morning. [474] She spoke with Ms Calvert, McFadzean and Chris Wheeler. Wheeler drove the party into the coupe, and a photograph was taken. [475]

s Ms Miller, on McFadzean's account, took with her when she left the area a letter from him addressed to Birrell, Whitehead and Ms Brown. [476]

s Before Ms Miller left, Robinson had arrived at the intersection. He had spoken to Tipler and Ms Nelson at Turton Track intersection at 12.20 pm. At SSP he first spoke with Ms Calvert. By his diary entry, that was at 1.00 pm. Then he spoke to McFadzean. The content of the latter conversation, particularly, was disputed. Certainly, on his account, no protester asked to leave.

s On 27 January a journalist from a regional newspaper went to the intersection. She interviewed Chris and Bernard Wheeler, and photographed Bowles.

s Early in the week, almost certainly on the Tuesday, a television crew visited the intersection. A camera can be seen in the photograph, Exhibit 21. That photograph appears to have been taken before the protesters erected the blue banner across the mouth of SSP Track. That banner was erected on 26 January, probably in the afternoon. [477]

s At least from 26 January allegations were made by persons outside SSP that the protesters were being falsely imprisoned. [478] I should refer to some of the evidence given in that connection, noting that not all of it went unchallenged, but presently putting substantial challenges to one side.

Ms Nelson gave evidence that she phoned Mullaly on 26 January, told him that the road was blocked and that people could not get out, and asked him to ring the police. She rang him because he was "someone legal" from whom to get advice. He had been "involved with forest stuff before." [479] Later in the day, Whitehead, she thought, told her that he had spoken to lawyers that day. But then the witness said she did not remember that. The same day, according to her evidence, Tipler asked Robinson for the road to be cleared. One of the documents which she sent to the protesters, with food, on 27 January was an Oren press release dated 26 January. Whitehead was there quoted as saying that "These people are basically being held against their will." I interpolate to say that the document also asserted that the protesters had been "attempting to halt logging operations at a nearby logging coupe". If by that it referred to SSP coupe, then it asserted something which the protesters steadfastly denied. If it referred to some other coupe, then it was not readily intelligible.

Mullaly gave evidence of being first contacted by Ms Nelson on the late afternoon of 25 January. He telephoned the Apollo Bay police station. The next day, after a further call from Ms Nelson, he spoke with policeman named Sorlie. He told Sorlie he was concerned that, as he understood it, people could not leave. There was difficulty in getting food to those people. He asked - what did they have to do, get an injunction to clear the road? He mentioned to Sorlie, not to Merry, taking out a writ in respect of road closure. [480] After that Robinson rang him. He put to Robinson, in effect, that it was false imprisonment if the road was blockaded and the people could not leave. On 28 January he spoke to Robinson again about false imprisonment, having received certain information about Ms Jackson.

On 28 January, according to Robinson's diary, he was contacted by a Ms Blakers of Senator Bob Brown's office. She expressed concern that the protesters were unable to leave.

On 28 January, after leaving SSP, McFadzean specifically asserted to Robinson that the protesters were not free to leave. [481] According to Robinson's evidence, that was the first occasion on which any of the protesters had said such a thing.

s Despite allegations of false imprisonment being raised by persons outside SSP at least by 26 January, and despite one of the authors of those allegations being a legal practitioner who adverted to the prospect of issuing a writ and seeking an injunction, no such proceeding was commenced.

s On 28 January McFadzean was driven by Chris Wheeler and "Kermit" to Apollo Bay.

s On 28 January, also, Ms Jackson left SSP and went to Apollo Bay. She departed at about 4 pm, by ambulance.

s On the afternoon of 28 January, as I earlier noted, the Gross party made its way through the bush to SSP. After a period when its members were prevented by loggers from walking to the protesters' camp, during which period there was a storm that was described in rather different language depending upon the witness, negotiations between Ms Calvert and Bela (Bill) Gross [482] culminated in the members of the Gross party signing an agreement and thereafter leaving via SRR.

s On the afternoon of 28 January, for the first and only time during SSP week, Arbuthnot visited SSP intersection. He passed by the Turton Track intersection. He was at SSP intersection for a short period of time. He was involved in an altercation with a few protesters. What occurred was in dispute.

s Arbuthnot was allowed to pass through the Turton track intersection although, as the defendants would have it, he was one of a few loggers whom it was considered should be screened out. There was evidence to suggest that the error was soon realised, and that he was persuaded to leave SSP quite quickly; or alternatively that he left of his own accord. I have concluded that there was a screening out purpose to the presence of loggers at Turton Track intersection; and that it related in part to persons classed as undesirables on the loggers' side. Implicit in that conclusion is my earlier acceptance of Ms Calvert's evidence that she did lay down a protocol which was to be abided by the loggers. Questions arise, however, whether Arbuthnot was a person let through in error; and whether any step was taken to redress the error.

s On or before 28 January Mr David Collis of Calco, a company involved in several ways in the timber industry in the Otways, commenced negotiations with the police and DNRE. Apparently he suggested that the loggers' concerns about protester action could be met if the police and department would agree to make joint patrols of working coupes 24 hours per day, seven days per week. It is not clear whether he proposed patrols for the balance of the season, or for the next three weeks. Dent learnt about Collis' approach on 28 January. The evidence was consistent that negotiations were not initiated with Ms Calvert's knowledge, or at her instigation; and that the matter was first discussed with her at a meeting held on the Thursday evening [483]. Of that meeting more later.

s In the early morning of 29 January Ms Calvert learned that there had been agreement to 24 hour patrols. She held a toolbox meeting and directed that the picket be removed. She spoke to Robinson just before 10 am, and advised him that the picket - he noted "blockade" in his diary - would be removed in 20 to 30 minutes. At about 10.30 am, police and DNRE officers being present, a number of loggers moved to the east of the protesters' camp and set up what might be called a picket across SSP Track. [484] There was dispute about what Ms Calvert said at the time. On the protesters' account she told them, in effect, that they were free to leave. On her account she said to Rofe that it was now his job to get them out.

s In any event, the protesters packed and left. They departed in the various vehicles - Greig's and Donato's included - and went to Apollo Bay. They went directly to the Clinic. Why they went there was a subject of enquiry at trial.

s At the Clinic the protesters were examined by two nurses; some by one nurse, some by the other. One of the two nurses was Ms Nelson. She had been driving to SSP when she encountered the protesters' convoy travelling away from SSP. She had followed the convoy to the Clinic. There, though not on duty, she provided assistance.

s Also on 29 January there was a debriefing, so described by Robinson, at the Beech Forest hotel. It was attended by Robinson, another police officer and Ms Calvert. Robinson's diary note [485] suggests that concern was raised about the risk of protest action at McGee and Chris Wheeler coupes; and also with respect to Dent.

s During the week, undoubtedly, a good deal of abusive and vulgar language was used by members of one side towards members of the other side. So also there was undoubtedly a deal of coarse behaviour. Most of the verbal exchanges and coarse behaviour occurred in the vicinity of the de facto boundary between the protesters' and loggers' camps. Each side accused the other, in effect, of using more bad language. I think that little distinction can be made in that connection.

Putting disputed remarks to one side, it is clear - whether by admission or by reference to videotape or photographs - that protesters were called "ferals" and "feral cunts", and that Nocera informed Donato that his "missus" had been seen in bed with another woman (they had apparently been sharing a sleeping bag or swag). Clear also it is that protesters called loggers "cunts" and "motherfuckers", and that Ms Epstein said to Sheppard a number of times that he was a "cunt and an arsehole". Clear also it is that "fuck" and its variants were constantly used by a number of the participants. As to coarse conduct, and speaking only of matters which are indisputable, Ms Epstein and Ms Colson made a middle fingered gesture to loggers [486] and on 28 January Fowkes dropped his trousers, turned his bottom to the loggers' group and put a finger near his rectum. Shortly before doing so he had remarked, I think to Sheppard, that the latter would like to "fuck [him] up the arse".

I mention the type of language used, and the conduct engaged in, not to shock but to inform. It is to be remembered that on the plaintiffs' account they were in fear of loggers, that being an element in their alleged imprisonment - that is, if it was not in any event a total physical confinement. A question that arises is whether the words and conduct of protesters bespoke fear or (as Fowkes would have it) desperation.

This also should be said: I consider it to be clear that the name-calling was intermittent; and that much of the period between 25 and 29 January passed by quite quietly. Further, there were undoubtedly people on both sides, a majority, who did not engage in name-calling or coarse behaviour.

Questions which arise

1037 I go now to consider the evidence pertaining to disputed issues in respect of the period after the arrival of the loggers' party. Resolution of some of those issues is important in deciding whether any and which of the plaintiffs were falsely imprisoned for all or any of the period between about mid-day on 25 January and mid-morning on 29 January; whilst resolution of others has a bearing on other claims raised by the plaintiffs, and as well questions to do with damages.

1038 With respect to the alleged false imprisonment, the most obvious route by which to leave SSP intersection was via SRR. Putting the question of a "police gate" to one side, was such egress available at any time after the loggers' arrival? If so, was egress subject to some condition imposed by the defendants? [487] If yes, was the condition the same throughout the period between 25-29 January? Was any condition which was imposed such as to render egress via SRR unreasonable? Did any plaintiff attempt to leave SSP intersection via SRR?

1039 Further with respect to the alleged false imprisonment, another possible route of departure from SSP was north to Turton Track through the bush. That was the route taken by the four people who left SSP during SSP week, and the seven people (including two of those who had departed) who walked into SSP that week. Was that, from a physical standpoint, a reasonably available means of egress for all or any of the plaintiffs? If yes, were attempts made to leave through the bush? Were any such attempts rebuffed? If yes, what was the effect of those failed attempts upon the protesters? Again, if egress was reasonably available through the bush, was it not availed of because plaintiffs were fearful of logger violence; or for some other reason other than a wish to stay?

1040 Again with respect to the alleged false imprisonment, and focussing upon SRR, assuming that there was a picket, was egress available through a "police gate"?

1041 Further again with respect to the alleged false imprisonment, did any and which of the plaintiffs not wish to leave SRR during all or part of SSP week? And if yes, then why?

1042 Next, in connection with the Wilkinson v Downton claims [488], what was the extent of annoyance activities carried out by defendants during SSP week, were such activities, or any other conduct of the defendants, "calculated" to cause harm to the plaintiffs, and did any such conduct cause any plaintiff injury of a kind compensable under that cause of action?

1043 Again, have the plaintiffs, or any of them, established a claim in public nuisance?

The afternoon and evening of 25 January: conversations between Ms Calvert and protesters. Other conversations. Surrounding events. Some conclusions

1044 A considerable amount of evidence was given about conversations held between Ms Calvert principally on behalf of the loggers and protesters on 25 January. The times at which and the sequence in which meetings were held, and what was said, were all the subject of evidence which varied to greater or lesser extent. That is not surprising given the fluidity of the situation as it unfolded that afternoon. In my opinion the most coherent account of what occurred was given by Ms Calvert, who participated in each of the conversations, and who made the running for the defendants. Her account of what she said is compatible, I think, with the object of the loggers at the outset, and her perspective as it altered during the day.

1045 I should make clear what I mean by that last observation. The evidence of the logger defendants convinced me that their purpose would have been served if, by attending in numbers, they had caused the protesters to flee. I have earlier explained what the importance of such an outcome would have been - for loggers and protesters alike. The fact that it would not have solved the loggers' problem of endemic protester action, and that it would have left other large issues unresolved, does not deny that the logger defendants had a limited objective. That being so, it is unlikely that Ms Calvert intended at the outset to impose on a non-unionised group of men a course of action with more sophisticated objectives.

1046 In concluding that Ms Calvert gave the most coherent account of what occurred on the afternoon, I do not mean to say that I accept its accuracy in all respects. I will make it clear where I do not do so.

1047 There would be little point in recounting all the relevant evidence of other witnesses simply to make the point that their recollections were faulty; or that in other respects their evidence tallied with that given by Ms Calvert. I will, however, refer to some other evidence pertaining to critical remarks and events.

1048 Before going to Ms Calvert's account, I should set out what I consider was broadly the timetable of some basic events which occurred on the Monday afternoon and evening. I have put times to a few of these events earlier in these Reasons. I repeat them so as to flesh out the timetable. It is not to be supposed that the time I assign to events are minute perfect, save in a very few instances. I am well aware, I add, that in this reconstruction I depart in some instances from times assigned to events by particular witnesses.

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1060 The Nocera videotape [492] depicts the skipping and dancing, and some part of that exchange. It is implicit in what I have just said that by the time this meeting was held Nocera had returned from Kawarren. The only alternative is that he had not yet left, and that he had his video camera with him when he first arrived. But that would put the second [and third] conversations too early. There was a deal of evidence, I add, which suggests that those conversations did not take place until 2.30 or later, some direct and some implicit. [493]

1061 There soon followed a third meeting. It took place at the intersection. With Ms Calvert were two of the Wheelers, Mick Fenn and Molloy. Those of the protesters present were Dwan, McFadzean, Bowles, McKenzie [494] and Ms Dawson. Ms Lees wandered in and out. Possibly others were present. Ms Jackson, I interpolate, was present, pretty much on the outskirts of those actively involved in the meeting.

1062 According to the witness, some but not all of the conversation which then took place is depicted on the Nocera videotape. So far as it does record the conversation it largely confirms her account, given that at times more than one person was talking, and that at times people were talking over one another.

1063 Pertinently, Ms Calvert told the protesters that there was a picket line; and that if a person went out he or she could not come back. She said that loggers were sick of working in an unsafe workplace.

1064 She explained, she said, the four aspects of the union protocol. Then followed an interchange with Dwan in which he spoke of rules which the union was imposing, and which ended up with him saying that he had been to pickets before, and that his grandfather had been a communist and anarchist who had fought in the Spanish Civil War.

1065 In the course of the meeting the logger Fenn interjected. He said that there would be no violence, that they just wanted the protesters to pack up and leave. Greig asked Ms Calvert if she could guarantee there would be no violence that night. She said that there would be "no violence, full stop;" and referred to operating on passive resistance.

1066 Notwithstanding that she had said that there would be "no violence, full stop", Dwan pressed her about violence. He asked several questions which she countered by questions of her own. Plaintiffs' counsel relied on that exchange to show that violence was, in effect, on the defendants' agenda. Set in context, I think that there was no point to be made.

1067 Plaintiffs' counsel also made the point, in cross-examination, that Ms Calvert had countered one question by asking Dwan whether he would put an embargo on preventing people working. He sought to link that reference to an embargo and what was said to be Ms Calvert's use of the word later on in the context of Oren and TWS. Her use of that word, specifically in connection with Dwan, shows only that it was a word that she used.

1068 Dwan also proposed to Ms Calvert that what he wanted to do was to be free to drive up and down SRR in his vehicle. Was that to be prevented? She replied "It's a picket, mate", shaking her head.

1069 Dwan's statement and inquiry did not involve a question whether he could leave SSP intersection in his vehicle. Its evident purpose was to draw Ms Calvert out on the effect of the picket. His methodology on that occasion was wholly consistent with his behaviour on other occasions; and with the manner in which he gave evidence.

1070 Ms Calvert said two other things in the course of the meeting which should be mentioned. The first of them was this:

[244]

After Ms Calvert made the first of those remarks Ms Jackson, who is depicted in the Nocera video tape wearing her backpack at that particular time, said that yes, she would go. Molloy then made a remark to the effect that she was weak, walking out on her friends. I consider that both those remarks were very important in what followed so far as it concerned Ms Jackson.

1073 Following the meeting, it is indisputable, no protester approached Ms Calvert with any such request. On the other hand, it was not long after that meeting that Ms Jackson walked north along SRR.

1074 Ms Calvert gave evidence of a fourth meeting which took place not long after the meeting which preceded it. She spoke with McFadzean, Dwan being also present. McFadzean told her that he had been elected to speak on behalf of the group. In that conversation she confirmed what she had earlier said. McFadzean told her that if a decision to go out was made it would be a group decision; and that such a decision would have implications for Oren and TWS, for which reason the group would have to consult with them. [497]

1075 According to Ms Calvert, a fifth conversation followed. In the interim she had seen McFadzean and Dwan speaking to members of their group. McFadzean and Ms Lees approached her, but it was she who started the conversation. Deriving from what McFadzean had said in the preceding conversation, she asked whether there could be an agreement with Oren that there be no more protests that summer. If there could be such an agreement, the protesters could go. McFadzean said that it would be necessary to consult with Oren and TWS. Protesters would need to leave. There was discussion about how many should be able to leave, and whether replacements could come in. Her position was that a person could leave for discussions, and that such person could thereafter return. [498]

1076 At that meeting, she said, setting up defined areas for the protesters and the loggers was raised and agreed; and she said, in response to a question, that food and water would be allowed in at all times.

1077 Ms Calvert denied that on the Monday she had said that the picket would stay until Oren, Friends of the Earth and TWS undertook in writing that all operations in the Otways would cease.

1078 Before going to certain evidence given by Johnson, McFadzean and others, I should mention a dispute which arose about the participation in the first conversation of a man named "Ricky". It puts into sharper focus the surreal quality of some of the dialogue which took place in the course of meetings that afternoon; and as well may have something to say about the means by which local conservationists came to learn about what was happening at SSP intersection.

1079 Ms Gross gave evidence of driving towards the base camp on 25 January after work. Probably, she said, she finished about "four or fiveish." [499] She had as a passenger a man named "Ricky" [500] whom she had not met before that day and whom she never saw thereafter. She encountered Ms Nelson on the road, and after conversation each of them headed to SRR. Ms Nelson had a box of food. Loggers did not let them through to the intersection. She took a photograph at the time. [501]

1080 Ms Nelson's evidence was that she arrived at SRR some time in the afternoon - perhaps at three or four o'clock. [502] That seems too early having regard to the evidence of Ms Gross, which evidence had a fixed starting point in time - that is, her finishing work. I doubt that Ms Gross, even if she chanced to have an early finish at work, left Apollo Bay before 3.30 pm.

1081 Ms Gross was not cross-examined to suggest that she did not drive Ricky from Apollo Bay. I see no reason to doubt her evidence.

1082 Molloy gave evidence, however, that Ricky [503] had been at SSP earlier that day; and had contributed to one of the meetings. At the first meeting Ricky had said -

[263]

1097 In my opinion the diary notes to which I have referred very largely capture the essence of what Ms Calvert and McFadzean respectively said at different times; and what he told them. I think that, strictly, a picket had not been established when Johnson first spoke with Ms Calvert. At that time, however, she had either just said or was about to say to the protesters that a picket line was to be established.

1098 Next, as to the note of conversation in which Ms Calvert referred to an embargo by Oren and TWS, the following points should be noted. First, that conversation took place, as I perceive it, after Ms Calvert had raised the possibility of agreement with Oren and TWS with McFadzean. The fact that she put that possibility to Johnson, and that he relayed it to McFadzean, does not gainsay that conclusion. Neither does the fact that McFadzean sent a message in reply. McFadzean, I add, gave quite different evidence of when there first was mention of an Oren/TWS linkage. In light of Johnson's contemporaneous note, McFadzean's evidence could not be correct; though the extent of its error must later be discussed.

1099 Second, Johnson gave evidence that at this time he was seeking to get further information for his superiors. For that reason he asked Ms Calvert what her intentions were, what the loggers wanted. It was that enquiry which provoked Ms Calvert's mention of an embargo and guarantees. He took the message to McFadzean. The latter said that the protesters would have a meeting and decide. A response was thereafter provided.

1100 Third, Johnson's pretty brief note says nothing about Oren or TWS being required to sign a document. No firm conclusion could be drawn from such absence; but it is a straw in the wind.

1101 Fourth, the question whether or not Ms Calvert used the term "embargo" to Johnson in connection with Oren and TWS is something of a distraction. By that time, both according to her evidence and his note, she was in some way linking the situation at SSP with the conduct of Oren and of TWS.

1102 Fifth, the witness gave clear oral evidence about what was meant by the cryptic note: "no people passing through." It meant that no person leaving would be coming back. That was what Ms Calvert said to him.

1103 Johnson was cross-examined to the effect that his note did not say such a thing. He affirmed what he had been told, and the intent of the note [509]. It may be said, in hindsight, that the note could have been better expressed. But I do not disbelieve the witness upon the substance of what he said he was told.

1104 A propos Johnson's notes of his last conversation with Ms Calvert, it is certainly the case, as I have already said, that a logger presence was established at the Turton Track intersection. Nothing in Johnson's note bears upon the reason(s) why it was established. On the evidence, however, the foreshadowed picket to or at the intersection of SRR and Horse [Paddock] Rd did not eventuate.

1105 So far, in commenting upon Johnson's notes and evidence, I have said nothing about his note that McFadzean told him, in their first conversation, that the protesters intended to remain. To that issue I now turn, making those points:

1106 First, if the statement was made, then it was made in quite different circumstances to the statements made by McFadzean to Nocera, Chris Wheeler and Fisher earlier in protest the day. For now loggers were present in numbers; and it may be the case, it is not clear, that Ms Calvert had already had her first conversation with the protesters.

1107 Second, bearing upon the probabilities that McFadzean said what Johnson recorded, the recorded statement was consistent with what I have concluded McFadzean had said on earlier occasions that day.

1108 Third, on Johnson's account, McFadzean was the speaker; and on each occasion that Johnson spoke to the protesters that day it was McFadzean with whom he spoke. This evidence fits a conclusion that in a camp where all men and women were on their account equal, one was on the face of it more equal than others. Normally, Johnson said, he walked towards a camp and the spokesperson would come out. On the occasion of their first conversation that day McFadzean came over and approached him [510].

1109 Fourth, on no view had Oren and/or TWS been brought into the equation on the first occasion that Johnson and McFadzean spoke. So if McFadzean said to Johnson what the latter noted, what he said could not have reflected simply an inability or unwillingness to give a commitment on behalf of either organisation.

1110 Fifth, when Johnson was cross-examined about this conversation he said that he could not recall all of the words used [511]. It was not put to him, however, that McFadzean had not said the substance of what he had noted. Johnson did agree that he had not offered to escort any protester out in the course of that conversation. Why should he have done so when, on his account, McFadzean had told him that the protesters intended to stay?

1111 Sixth, McFadzean gave evidence of speaking to a policeman named "Laurie". Johnson's first name is Lawrence. Although McFadzean said that the policeman told him that he came from Apollo Bay, the evidence which he gave of discussions with the policeman about a police presence, and about food and water, [512]strongly suggest that he was referring to conversations with Johnson.

1112 According to McFadzean

[266]

1113 McFadzean was cross-examined about his evidence of what he had said to Johnson. He "didn't remember saying" that the group intended to remain. [514]

1114 In my opinion, Johnson's account of what McFadzean said was definitely more reliable that the account given by McFadzean. Not only was Johnson, in my estimation, generally a much more reliable witness than McFadzean, his note was made at a time proximate to the events, and it supports his oral evidence. Moreover, as I noted a moment ago, the statement attributed by Johnson to McFadzean was consistent with other statements which I am satisfied McFadzean made earlier in the day.

1115 It is now convenient to refer to other evidence concerning conversations in which Johnson was allegedly involved that day. The starting point is his evidence that on the Monday no protester asked to be taken out along SRR, or for him to allow them to leave the area. [515]

1116 Ms Lees gave evidence of speaking to Johnson. Her account of what she said varied somewhat. Initially she said that she asked him to explain why the union was allowed to block SRR and not allow them to leave. His response was that it was a union picket. [516] In cross-examination she gave evidence of believing that she asked Johnson to clear the road. [517] In further cross-examination she reverted to her original account. [518]

1117 Ms Dawson gave evidence that after the arrival of a policeman, maybe in the late afternoon or night, she spoke to him. She asked the policeman what was going on and what the legalities of the picket were, and asked if the protesters could leave along SRR. She thought that he just said that he couldn't do anything about it. [519]

1118 Ms Garrett gave evidence, initially, that she asked Johnson if he could escort her out, or talk to the loggers. He said that he could not do so, that he was there to observe. [520] In cross-examination she said that she asked him to drive her to Apollo Bay, [521] and that she asked him to convey a message to her boss. [522]

1119 Johnson acknowledged that, whilst he was speaking to McFadzean - I think he was speaking of one occasion, but perhaps more generally - a very few of the other protesters came over and were interjecting; but that he chose to speak with McFadzean directly. [523] It is therefore theoretically possible that Ms Lees, Ms Dawson or Ms Garrett might have said something to him which he did not hear. But that could not explain the disparity in his account and their evidence, for in each instance they said that he gave a particular response to their questions or requests.

1120 The plaintiffs sought to show, in effect, that Johnson believed that the protesters were unable to leave, and that the police role was to observe and do nothing. Such beliefs, it was argued, explained what the protesters attributed to him. The plaintiffs relied upon a police roster [524] that was apparently issued by Merry on the Monday afternoon. It seems likely that the roster was faxed to the Beech Forest, Forrest and Colac police stations.

1121 Plaintiffs' counsel particularly focused upon the following passages in the preface to the roster itself:

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

• "Instructions from ... Robinson require 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 the picket at this stage."

• "Members must be impartial to both sides."

1122 Johnson gave evidence that it was his understanding on 25 January that protesters could leave, but if they did so they would not be allowed back. I have already referred to that evidence. It was not his estimation, he said, that protesters could not leave the area, [525] and he had not told Merry such a thing.

1123 Concerning the document's reference to an officer being on duty, Johnson said that he had passed McFadzean's request up the line. But the timing of McFadzean's request shows, I think, that whatever Johnson may have passed on was not operative in the compilation of the roster.

1124 Concerning the document's reference to taking "no active role as to the legality of the picket", Johnson said that he did not remember being told anything like that by Merry. [526]

1125 As to the need to be impartial, Johnson said that he probably would not expect Merry to tell him that, "it would be just done." [527]

1126 The witness gave unequivocal evidence that had a protester asked him to drive that protester out, he would have done so. [528]

1127 Finally, the witness gave evidence that, on some indeterminate occasion, he had said to a protester or protesters that it was an official picket line, that his superiors would make decisions about it, and that he would be reporting to his superiors. [529]

1128 Later I will say something more about the language of the preface to the roster. Robinson, the police officer in charge of the SSP affair, was cross-examined about the matter. For present purposes it is enough to say that, set in the context of Johnson's activities on the Monday, and his evidence about those activities, it does not seem to me that the roster casts much light upon the probabilities of what, if anything, passed between Johnson on the one hand and Ms Lees, Ms Dawson and Ms Garrett on the other.

1129 In all, I consider it probable that one or both of Ms Lees and Ms Dawson did ask Johnson about the legality of the picket. Certainly he noted that such an enquiry had been made, though he attributed it to McFadzean. It may well be the case that enquiry was made by McFadzean and also by one or both of Ms Lees and Ms Dawson.

1130 According to his evidence, Johnson told the protesters that he could not and would not be giving a legal opinion. I think that is likely to have been his response. Had he offered an opinion, it might have been said that he was taking an active role with respect to the legality of the picket.

1131 I next consider it extremely unlikely that any of the plaintiffs asked Johnson to clear SRR or to escort them through the picket. Not only did he gave evidence that neither such request was made, and that had a request for passage in his vehicle through the picket been made he would have acceded to it, nothing in his notes suggests that any such request was made. The plaintiffs' case in the present connection really asks me to conclude that Johnson took sides, omitting significant interchanges with the protesters from his notes. That is not the impression which the witness created. Moreover, there was no reason not to note such requests if they had been made - even if, contrary to his evidence, for one reason or another he would not to acceded to them. Further again, any such requests would have been contrary to McFadzean's statement of the group's intention; and one would think that they would have been recorded, for passing on by Johnson to his superior.

1132 In referring to Johnson's evidence I have addressed some evidence which McFadzean gave about conversations on the Monday afternoon and evening. But it is also necessary to mention evidence which McFadzean gave concerning the circumstances in which Ms Calvert first brought an agreement into discussions.

1133 When McFadzean first gave evidence of conversations which took place on the Monday afternoon, and which involved Ms Calvert, he gave no evidence at all of what she described as the fourth and fifth conversations. [530] He conflated the first and third conversations.

1134 Later, in his evidence, in connection with a conversation which he said he had with Molloy and Chris Wheeler on the Tuesday, he gave evidence that the first time he had been told that a condition of release was that the protesters did not engage in protests in the Otways was when Ms Calvert told him that after dark on the Monday evening. [531]

1135 Next, as I understand McFadzean's evidence in chief, it was on the Wednesday that Ms Calvert first said that the protesters had to give a commitment in writing that no one, including Oren and TWS, would engage in protests in the Otways. Ms Calvert had a document that day, which he saw and read. [532]

1136 In cross-examination, McFadzean was asked about the conversation with Ms Calvert which he said took place after dark on 25 January. There was this question and answer:

[270]

1139 The point of the question which led to that answer was that Ms Lees had given evidence to that effect. [537] She also gave evidence of a belief that she and McFadzean had conveyed a response to Ms Calvert that the group was not in a position to make decisions on behalf of Oren and TWS, and requested that they be allowed to communicate with those organisations. [538]

1140 It followed from McFadzean's evidence that on his account the interchange with Johnson involving Oren, TWS and the protesters' attitude, noted by Johnson, had not occurred.

1141 Bearing upon the question of discussions about agreement, or commitment, between Ms Calvert and McFadzean on the Monday, I should mention a little of the evidence given by other protesters. Dwan said that he thought he heard about an agreement on the Tuesday. It involved himself, Oren and TWS. Ms Calvert waved a piece of paper. [539] He later said that he was not clear if Ms Calvert sought an agreement from the group on the Monday. Ms Lees, having given the evidence to which I have earlier referred, said that she was shown a document on the Thursday. Ms Dawson said that she thought she first heard about a document, involving Oren and TWS, on the Tuesday morning. According to Bowles, Ms Calvert said on the Monday that if they signed a piece of paper saying that they would not protest again, likewise Oren and TWS, they could go. [540] Ms Nelson gave evidence that Ms Calvert had said on the Monday afternoon that the loggers wanted Oren to sign an agreement. [541]

1142 It is impossible to fully reconcile the evidence of what passed between, mainly, McFadzean and Ms Calvert on the Monday afternoon; but some things are clear.

1143 First, the question whether Oren and TWS could be brought to agree to discontinue protesting in the Otways arose at the tail end of discussions between Ms Calvert and the protesters, not at the outset.

1144 Second, that said, Ms Calvert had evidently reached the point of bringing Oren and TWS into the equation by mid Monday afternoon. Johnson's note is compelling.

1145 Third, the weight of evidence is against Ms Calvert having said on the Monday afternoon that she required a signed agreement from the protesters on behalf of themselves, Oren and TWS. No agreement in that form was ever introduced into evidence. On the other hand, forms of agreement, signed and unsigned, went into evidence which were in the language of personal commitment. [542] The first time that a document was ever shown to the protesters, I am certain, was on the Wednesday.

1146 Fourth, whilst Ms Calvert no doubt hoped for an agreement with Oren and TWS, to be used against them when, as was inevitable, further protest action occurred in the Otways, she was also realistic enough to perceive that the prospect of getting such an agreement was slight. [543] On the other hand, the picket having been established, it seems likely to me that she would have been keen to extract from the protesters something in exchange for opening the gate to the picket - which says nothing about the boundary of the picket, the picket as an "act of persuasion", obedience to police direction or leaving through the bush. For that reason it seems likely to me that whilst she raised the issue of Oren and TWS she also raised the prospect of the protesters' group giving individual commitments to cease protesting. To do so was an extension of, colloquially, "go and don't come back." In the event, it seems likely to me that McFadzean's account of a conversation with Ms Calvert on the Monday night, though wrong as to time, and though it wrongly excluded reference to Oren and TWS, was in one respect accurate.

1147 Fifth, it seems likely to me that Ms Calvert's mention of Oren and TWS was precipitated by something that had occurred earlier. I say that because Oren and TWS, though doubtless subjects close to her heart, had not featured in earlier conversations. Nor, I think it is clear, had bringing Oren and TWS into the equation been discussed by Ms Calvert with the loggers. In the circumstances, it seems probable that Ms Calvert seized upon an opportunity that suggested itself. Her account of what was said by McFadzean in what she called the fourth conversation provides a rational explanation how such an opportunity did present itself. To my mind that makes the sequence of events which she described the more likely.

1148 In reaching the conclusions just expressed I have taken very careful account of the submission made by plaintiffs' counsel that McFadzean was not cross-examined consistently with the evidence later given by Ms Calvert. Certainly there was some force to that submission. But the extent to which Ms Calvert's evidence departed from what was put to McFadzean in cross-examination was not in fact that great. For Ms Calvert gave evidence that it was she who suggested some linkage between Oren, TWS and the situation at SSP. She differed with McFadzean as to when she made that suggestion; and she gave a reason how she came to raise it. Upon the first of those differences she was obviously correct, at least as to the day on which she first mentioned the matter. As to the second of differences, the question was one of sequence, the sequence not being put to McFadzean. Recognising that fact, I have explained why, in my opinion, Ms Calvert's account was the more probable.

1149 I should mention at this stage one other aspect of conversations held on 25 January.

1150 I have no doubt that the issue of separate areas for protesters and loggers was raised, and that it was raised by the protesters.

1151 The clearest evidence of those matters is a conversation particularly between Dwan and Molloy, McFadzean and Ms Lees being present, and Johnson being on the periphery. [544] This conversation was picked up by part of the Molloy videotape [545]. It is apparent that Dwan raised the question of separate areas and that he identified areas which should be regarded as the preserve of the opposing groups. In cross-examination he put it only that

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1152 Dwan thereafter spoke in his evidence of the protesters being "confined" to that area - an area which had as its western boundary the mouth of the intersection, later comprehended by the blue banner created on 26 January. Whether "confined" was an appropriate description in all the circumstances - which include the circumstances in which separate areas came to be established - is a matter which must later be considered.

1153 Molloy gave evidence about his conversation with Dwan. [547] It added nothing to what I have already said.

1154 McFadzean gave evidence of raising the issue of separate areas with Johnson, in the course of what he described as the first of two conversations that day. [548] Johnson's notes contain no reference to McFadzean raising the issue.

1155 Ms Calvert made some reference to an agreement about separate areas. She said that it was made at after what she called the third conversation; and that after it was made Dwan moved his utility from the western verge of SRR back into SSP Track. [549] Her evidence seems to fit the likely timing of the conversation about separate areas to which I referred a few moments ago. There is no doubt that Dwan did move his utility that afternoon. It is logical that he would have done so after discussion about areas.

1156 I have already expressed a number of conclusions in this section of my Reasons. I would add the following: First, up to and including the time of the third conversation, Ms Calvert's expressed position was that the protesters were free to leave; but that if they left they could not come back. The rider was insubstantial. Commitment not to return, even if made with some formality - and none was sought - was meaningless. Moreover, what would or might have happened if a protester had left and later attempted to return is speculative.

1157 Second, at the time when Ms Calvert raised the questions of a commitment by protesters not to protest again in the Otways that summer, and of possible agreement with Oren and TWS, the protesters, faced with the arrival of the loggers, with the arrival of camping paraphernalia, and with the statements that a picket was to be and thereafter had been imposed, had taken - with the possible exceptions of Ms Jackson and Greig - no steps to leave along SRR.

1158 Third, it may shortly be said that the plaintiffs' case concerning "an agreement" was at its highest that they understood the price to be paid for exit along SRR with the defendants' blessing was an agreement between Oren, TWS and the loggers at least that there be a halt to forest protests in the Otways that summer; whilst it was the defendants' case that although attempts were pursued to meet Oren representatives and to reach agreement with Oren, it was always open to an individual plaintiff to pass through the picket by agreeing not to protest further in the Otways that summer.

1159 Fourth, to describe something as the "plaintiffs' case" or the "defendants' case" in the present connection is in truth misleading, for individual plaintiffs and defendants had different understandings what the terms of any agreement were; and in the case of some witnesses, whether an agreement was required.

1160 Fifth, according to the defendants' case it was always open to an individual plaintiff to leave through the bush. It was the plaintiffs' case, to the contrary, that whatever was said in that connection was not the reality of the matter.

1161 Sixth, the extensive evidence about agreements, whether with Oren and/or TWS or with individual plaintiffs, might be pertinent if, in the case of any particular plaintiff, there was otherwise imprisonment during SSP week. There would not be an imprisonment if the particular plaintiff wished to leave and leaving through the bush was a reasonable option in all the circumstances - that is, circumstances both physical and psychological. There would not be an imprisonment if the plaintiff wished to leave and leaving via SRR was possible. That raises questions whether in fact there was a picket, what was its nature, and whether there was a police gate. Further, I have concluded that, as a matter of principle, there would not be an imprisonment if a 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.

1162 Regardless whether the conclusion to which I have last referred is correct or not, choice by a plaintiff to remain at SSP intersection during SSP week for his or her own reasons could have relevance. So, for example, a plaintiff might say that he or she did not leave SSP by a particular route because of perceived difficulty, or physical infirmity, or fear. But if I was to decide that the person chose to stay because he or she wished to maintain a protest against logging in SSP coupe, or to avoid the stigma of fleeing from loggers, or to assist in creating a perception that conservationists were being imprisoned by a group of lawless loggers, or possibly to protest against the "blackmail" of having to sign an agreement in any form in order to leave SSP, or because of any combination of one or more of those considerations, it would provide an explanation, whether or not strictly one was required, why a means of egress that was reasonably available was not taken.

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

1163 In the immediately preceding section of these Reasons I assumed that a picket was in fact established on 25 January. I specifically adverted, however, to the circumstance that questions remained open in that connection. To those questions I now turn.

1164 By paragraph 43 of their Defence the defendants admit that:

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1165 Bearing in mind the fact that the plaintiffs plead conduct in concert between the defendants, and between the defendants and other loggers, a question arises whether the plaintiffs have proved not only that a picket was established, but that it was established by the action of the defendants (and others) in concert. If the plaintiffs have proved those matters, further questions arise: what were the physical boundaries of the picket; and upon what basis or bases, if any, were the protesters able to pass through the picket from time to time during SSP week?

1166 In deciding what answers must be given to the questions which I have just posed I will put to one side three issues, each of which presupposes the existence of a picket, and two of which involve the thoughts or intentions of persons other than the defendants: First, whether in the context of conduct in concert any picket that was established was no more than "an act of persuasion". Second, whether individual protesters had some and what understanding during SSP week of the of the content of any requirement by the defendants that they and/or Oren/TWS agree not to protest further. Third, whether there was a "police gate."

1167 There was certainly evidence that a picket, so called, was established during SSP week. Any picket that was established was, I think, unusual if considered in a traditional industrial context. It was not designed to inhibit entry to a workplace, but to inhibit egress from a place close to a workplace. It had none of the physical certainty of a picket set up at a factory gate. It was not akin to a picket intended to prevent egress of goods from a defined area - as, for example, a factory. So it had about it none of the physical certainty which would attend a picket of that kind. Further, as I have already remarked, hardly any of the individual defendants were or had been union members, or had experience of pickets.

1168 I think that it would not be surprising, in the circumstances which I have described, if individual defendants had different perceptions whether there was a picket, how and where it was constituted, and on what terms (if any) protesters might pass it by. The evidence of the defendants did in fact differ to an extent in those connections. What was the evidence, then, and where does it lead?

1169 I begin with the evidence of Ms Calvert. I have already referred to and accepted some of it earlier. So, I am satisfied that at the Beech Forest meeting she told those present, having described Chris Wheeler's position, that she would consider establishing a picket line. She went through the four aspects of the protocol which would apply in such a case. Not all the defendants were present at the meeting, and not all recalled her referring to a picket. Those present understood at least that they were going out with her in numbers to SSP intersection to see what could be done to remedy the problem - it being their understanding that Chris Wheeler was being blockaded in his coupe by protesters.

1170 I next refer to Ms Calvert's evidence of her discussions with protesters on the afternoon of 25 January. At the outset she told protesters that she intended to set up a union-authorised picket, and that when it was set up, people could not cross it. In what she called her second conversation she told Ms Douglas that if the latter went through the picket then she could not come back. In the third conversation she said that there was a picket line, and that if a person went out he or she could not come back. She explained the protocol. She said that if a protester wanted to go "you don't come back." She offered to arrange egress for anyone who wished to leave. In the fifth conversation she raised the prospect of agreement by Oren and TWS that there would be a halt to forest protests in the Otways. She also mentioned, as I have concluded, a requirement personal to the protesters that they agree not to engage in further forest protests in the Otways that summer.

1171 Next, in the course of SSP week Ms Calvert acted on the footing that a picket was in place. That can be seen, for example, from conversations which she had with Robinson and with some of the protesters [550], and as well from her evidence that on the morning of 29 January she instructed the men to lift the picket and to set up a picket on SSP Track.

1172 According to Ms Calvert's evidence, the picket was established on SRR. It extended, however, into the bush to the distance of sight and sound [551]. There was also a picket at Turton Track intersection.

1173 On her account, a picket is an "act of persuasion". Allied with her evidence as to the "no violence" element of the protocol which she laid down, the gist of her evidence was surely that if a protester had sought to cross the picket during SPP week, such protester would not have been physically impeded.

1174 I consider it likely that Ms Calvert's characterisation of a picket as an "act of persuasion" represented her true position as at January 1999; and that the "no violence" element of the protocol was seen by her to be relevant in that context. For according to her evidence, which I think was credible in this connection, she understood that it was not a picket but rather activity associated with a picket - by which she meant violence to prevent a picket being crossed - which was unlawful.

1175 I mentioned a few moments ago what Ms Calvert said on 25 January about agreements not to protest - personal and institutional. She was much cross-examined in an attempt to show that the price to be paid for exit along SRR with the defendants' blessing was an agreement between Oren, TWS and the loggers at least that there be a halt to forest protests in the Otways that summer.

1176 I have already concluded that on the Monday afternoon Ms Calvert did not say she required a signed no-protest agreement from the protesters on behalf of themselves, Oren and TWS; and that the first time she ever showed a pertinent document to the protesters was on the Wednesday, that being a document in the language of personal commitment. It is also the fact that the members of the Gross party eventually signed a document [552] which was in the language of personal commitment, and that the document to which the protesters gave consideration on the evening of 28 January and the morning of 29 January [553] was in terms personal to the proposed signatory.

1177 The breadth of the personal commitment sought was very expansive. The worth of such a document, if signed, would have been non-existent save for the broader political agenda. For present purposes, however, the point is that no document was introduced into evidence, being a document for consideration and signature by the plaintiffs, which involved agreement on behalf of Oren and/or TWS. That tends in favour of acceptance of Ms Calvert's evidence that, assuming the presence of a picket, one key to egress along SRR throughout SSP week was signature by a protester of a document giving a personal commitment not to protest.

1178 I have also concluded, earlier, that Ms Calvert was realistic enough to know that the prospect of obtaining any "no-protest" agreement from Oren or TWS was slight; and I have said why that was surely the case [554]. It is nonetheless clear that, having raised the question of possible agreement between Oren/TWS and loggers on 25 January, she pursued the matter during SSP week. She actively sought a meeting with representatives of Oren particularly, expressed a certain willingness for protester representatives to leave SSP and return in order to attend such a meeting, agreed to McFadzean leaving along SRR on 28 January without signing any personal commitment in part because (as I later conclude) he raised the potential benefit of his being able to represent the protesters at a foreshadowed meeting, and agreed with Robinson's proposal, made on 25 January, that he act as a negotiator "between both organisations."

1179 It is not possible to gainsay the fact that the only documents produced for signature by protesters and the Gross party, so far as any documents were adduced in evidence, were in the language of personal commitment. Should it nonetheless be concluded that, throughout SSP week, Ms Calvert would not have been prepared to open the gate constituted by the assumed picket unless Oren and/or TWS also signed an agreement not to protest? Or should it be concluded that signature of an agreement between Oren and/or TWS was perceived by Ms Calvert to be an alternative to signature by protesters of documents of personal commitment?

1180 Some evidence could suggest that Ms Calvert required signature of "no-protest" agreements by Oren and/or TWS in order that the protesters might leave through the assumed picket. Thus, for example, the secondhand report of the loggers' position provided to Robinson at 1910 hours on 25 January [555]. More doubtful are Ms Calvert's remarks as noted by Johnson on 25 January at 1550 hours, and the remark which she accepted that she may have made in the course of a radio interview subsequent to SSP week; [556] whilst remarks which she agreed she might have made, more or less, to newspaper reporters during the week [557] were in my opinion not inconsistent with the burden of her viva voce evidence. To the matters just noted I should add that Ms Calvert's account of what she told Robinson on 26 January, [558] and of discussion between them about a meeting with Oren representatives, [559] evidence which I consider was credible, suggests that there were truly alternative bases for leaving by agreement. Further, Ms Calvert rejected the suggestion, made in cross-examination, that the word "embargo", which she used during SSP week, was only appropriate to an institution; and in my view her position about that matter was correct.

1181 All in all, I think it very probable that Ms Calvert, from the time when agreements were first mooted on 25 January, engaged in parallel strategies: one, to get no-protest agreements from the individual protesters; the other, to get a no-protest agreement at least from Oren. An agreement in either form would have provided her, for reasons previously discussed, with political ammunition. An agreement with Oren would have been the greater prize. But she knew that such an agreement was, in reality, a prize outside her reach. She pressed for the greater prize, but it does not lead me to conclude, particularly having regard to the form of agreement proffered to the protesters, that signature by protesters of individual no-protest agreements would not have opened the picket. The evidence of the protesters, I should add, was confused from one to the other about the agreement which Ms Calvert sought. I will refer to some of that evidence later. It is not surprising, with Ms Calvert running parallel strategies, that confusion may have been created. The fact that the protesters' evidence was not relevantly to the same effect has not led me to doubt the correctness of the conclusions which I have expressed.

1182 That is all that needs to be said about Ms Calvert's evidence in the present connection. I go to the pertinent evidence of the other defendants.

1183 Molloy was present at conversations on 25 January when Ms Calvert spoke to protesters with respect to establishing a picket. On his account he'd had no prior experience of pickets or picketing activities. Concerning the picket which he said was established, Molloy gave evidence that Ms Calvert -

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1204 The witness said that he heard of an agreement or proposed agreement during SSP week. As I understand his evidence, he was referring to the agreement signed by the Gross party. On his account, he did not see the individual protester agreement [584] during SSP week. But he was happy to go along with it if Ms Calvert had sought agreements from the protesters. He denied reading newspapers containing articles which referred to an agreement being sought either from Oren or individual protesters. But his evidence in that connection was contradictory.

1205 Sheppard gave evidence that he went to SSP intersection as "a show of presence". He agreed and was happy that Ms Calvert be in charge. It was his understanding that a picket was established, on the Monday or the Tuesday. He believed that the picket line was the blue banner. He did not know if it extended beyond the road into the bush. [585]

1206 The witness said that at no time during the week did he hear mention of a requirement that the greenies had to stop protesting before they could leave. He said that he would have read some articles about SSP during the week, but he could not remember reading anything to the effect that the union was demanding a written guarantee that Oren would not take direct action against workers or workplaces.

1207 Having summarised a good deal of the pertinent evidence, I go to my conclusions.

1208 First, I am satisfied that a picket, so-called, was established on SRR on the afternoon of 25 January, and that it remained until the morning of 29 January. That is not to say, and it is not the fact, that except on isolated occasions it ever assumed a physical manifestation.

1209 Second, the picket was established by the defendants [586]. In that description I include, for reasons previously discussed, the first defendant. The defendants should be taken to have acted in concert in establishing the picket notwithstanding the fact that some of them denied or were doubtful that a picket was established. In essence, the other defendants put themselves into Ms Calvert's hands in determining what was done at SSP. It went further that those defendants simply agreeing to abide the protocol, which counsel for the defendants submitted, I think, was the limit of conduct in concert. The fact that some defendants denied, or doubted, that a picket was established really reflects, I think, no more than their relative lack of industrial sophistication.

1210 Third, Ms Calvert effectively prescribed for the other defendants the bases upon which egress through the picket would be permitted. That is so because the other defendants put themselves into her hands. Whilst various of them, I am prepared to accept, would have countenanced the protesters leaving along SRR more readily than Ms Calvert would have done, and whilst Molloy would have imposed a greater burden, Ms Calvert's prescription should be taken to have been the basis of action in concert by the defendants in that connection, at least insofar as action in concert including Ms Calvert and the union is concerned.

1211 Fourth, the physical boundaries of the picket were never defined with precision. Certainly it extended across SRR in the vicinity and to the immediate north of SSP intersection. Certainly there was a separate picket at Turton Track intersection, the institution of which was directed by Ms Calvert. Less clearly, it seems to me that the real gist of Ms Calvert's position that the protesters could leave through the bush would not have been satisfied by a protester moving through the bush parallel and in close proximity to SRR. In the event, I think that Ms Calvert's description - "sight and sound" - marked out, though imprecisely, the sideways extension of the picket. It is consistent with such an understanding of the situation that, as I later conclude happened, fishing line was strung in the bush to the north-east of the intersection in closish proximity to the eastern side of SRR.

1212 Fifth - it flows from my conclusion that from the defendants' perspective leaving through the bush would not have been satisfied by a protester leaving through the bush parallel and in close proximity to SRR - leaving through the bush would still less have been satisfied by a protester in effect walking around the picket; that is, walking north in the bush in proximity to SRR for some distance, and then emerging onto SRR. I doubt that it follows conceptually, though it might do, that the length of SRR north to Turton Track intersection should all be regarded as having been within the physical boundaries of the picket. I do not think that it was so viewed by Ms Calvert, and so the other defendants, despite Molloy's uncertain answer in cross-examination.

1213 Sixth, this reiterates my earlier conclusion, Ms Calvert did perceive the picket as an "act of persuasion". It is highly improbable that she ever mentioned such a concept to the other defendants. There is no evidence that she did so. What she did do, however, was lay down, and repeat, the protocol. In doing so she prescribed one of the features of conduct in concert by the defendants and their supporters; for, as I have said, the other defendants put themselves in her hands. The "no violence" aspect was apt to yield the result that, if a protester sought to leave along SRR, his or her progress would not be physically impeded. As I later conclude, that is what happened in fact when Ms Jackson walked north along SRR on the Monday afternoon.

1214 Seventh, the other defendants should be taken to have acted in concert with Ms Calvert and the union in connection with the agreements which she pursued during SSP week. It is evident that the other defendants left negotiations on their behalf in her hands. When she spoke, she spoke for them as well as for herself and the union. According to the evidence of the other defendants, some of them knew something about desired agreements, and others not. On the view which I take it is immaterial whether a particular defendant knew something or nothing about the agreement(s) sought by Ms Calvert. Neither does it matter, save as going to credit, whether any of the other defendants acknowledged knowing less than he really knew about Ms Calvert's request for agreements. For I have concluded that from the afternoon of 25 January it was Ms Calvert's position, to be attributed, in effect, to the other defendants, that a protester would not be permitted to leave along SRR unless (subject to the picket being simply an act of persuasion, and leaving for later consideration the question of a "police gate") either that protester gave a personal commitment along the lines of the document exhibit G, or unless Oren at least entered into a no-protest agreement.

Restraining conduct, violence, threats of violence by loggers?

1215 An important aspect of the plaintiffs' case, both with respect to the various allegations of assault and battery and as explaining why it was that the protesters did not leave - or in most cases did not attempt to leave - the area of SSP intersection either along SRR or through the bush during SSP week was the contention that restraining conduct engaged in by loggers, violence, and threats of violence prevented or intimidated them (as the case might be) from doing so.

1216 Did the plaintiffs make out all or any of their claims that loggers engaged in restraining conduct, violence, or threatened violence? If they did, then what consequences, if any, ensued? By "consequences" I mean this: First, accepting as I do that Ms Calvert laid down a protocol one of the aspects of which was "no violence", an aspect consistent with her characterisation of the picket as an act of persuasion, if loggers did engage in restraining or violent conduct, should it be concluded that such conduct constituted conduct in concert by the defendants other than Ms Calvert and the union, or by some of those defendants - and in either case in concert with "other loggers"? Second, if loggers made threats of violence, should it be concluded that those threats constituted conduct in concert between the defendants including Ms Calvert and the union, or between the defendants other than Ms Calvert and the union, or between some of the other defendants - and in any of those cases in concert with "other loggers"? Third, if there was restraining conduct, violence, or threats of violence, did such conduct prevent or dissuade any plaintiff from leaving the area of the intersection during SSP week? I shall deal with the first and second of those questions in this section of my Reasons.

1217 Most of the allegations of restraining conduct, violence and threats did not pertain to alleged attempts by protesters to leave along SRR. But it might be said, if all or some of the allegations were made out, that the picket was likely to have been more than an "act of persuasion" if a protester attempted to cross it; or at least that protesters were reasonably entitled so to conclude. For that reason it is desirable to consider the evidence pertaining to each of the allegations of restraining/violent conduct and of threats; and later to consider the significance, if any, of any allegations which I conclude were made out, both in the context of leaving along SRR and leaving through the bush.

1218 Concerning threats, this should be added: protesters claimed to be fearful of logger violence not only because of things done or said during SSP week, but also because of violent conduct allegedly engaged in by Arbuthnot, particularly, prior to SSP week. There is a question whether any fear deriving from earlier violent conduct could be relied upon by the plaintiffs as against the defendants to justify the former not attempting to leave the area of SSP intersection during SSP week, an antecedent question whether any and which of the plaintiffs truly had any such fear, and a further question whether, on analysis, any plaintiff relied upon such alleged fear as a reason for not seeking to leave the area.

1219 I go to the alleged acts of restraining conduct and of violence. Some of them were relied upon as separate causes of action by particular plaintiffs. I shall indicate where that was the case.

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

1220 It was the plaintiffs' case that Ms Calvert's invitations to them to leave - made on the Monday afternoon, particularly in what she called the first and third conversations -did not represent the truth of the situation. The true position was disclosed, inter alia, when persons who attempted to leave along SRR were prevented from doing so. Particular focus was laid upon an incident involving Ms Jackson. Greig also gave evidence of an attempt to leave along SRR at the time of the Jackson incident.

1221 There is no doubt, as I have previously said, that Ms Jackson walked north along SRR not long after what Ms Calvert called the third conversation. She was wearing her backpack, as she had been doing at the time of that conversation. She had not been wearing her backpack at the time of the so-called second conversation. At the tail-end of the third conversation she had indicated an intention of leaving. That had led on to Molloy saying to her that she was weak, running out on her mates.

1222 Ms Jackson gave evidence that when she walked north it was her intention to leave. She tried at least six times - a little later, as I understand it, she said several times - but was physically prevented by loggers who linked their arms and yelled abuse [587]. She said that a photograph [588] showed her attempting to cross the picket line. Sometimes, she said, the men were packed tighter than shown in that photograph, and had their arms linked [589].

1223 Greig, she said, was behind her when she was trying to cross the picket line [590]. Compare paragraph (e) of the particulars to paragraph 5 of the statement of claim. See also her later evidence that she thought Greig was a little way behind her, and maybe Ms Epstein [591]; and still later answers which betrayed much uncertainty [592]

1224 The witness was not directly cross-examination to suggest that her walk north was not a genuine attempt to leave, but rather conduct to facilitate a photo opportunity. She was asked, however, whether she had requested a police officer to escort her through the picket, then or later that day; and whether she had asked a police officer to convey any message to her parents - that is, about inability to attend the family reunion of which she gave evidence. Her answers showed that she had not done any of those things. But she doubted that a police officer was present at the critical time [593]. In re-examination she gave an explanation for not seeking a police escort: it seemed that the police were subtly supporting the loggers [594]. I did not understand from her evidence that she claimed any experience by the Monday evening that would found such a perception; and I am satisfied that Johnson had done nothing to create it.

1225 Greig gave evidence that he followed behind Ms Jackson:

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1228 He said also that he tried to see how strong the picket line was on a number of occasions. He was informed that he wasn't allowed to leave. That he went back to the camp, got his backpack and walked north in the bush, parallel to SRR.

1229 In cross-examination he denied that the incident was a set-up [597].

1230 Greig was not cross-examined about the fact that the extensive particularisation of the events of SSP week in paragraph 5 of the statement of claim makes no mention of him attempting to leave along SRR on 25 January. Compare particulars (g) and (h).

1231 Dwan gave evidence of observing Ms Jackson approach Ms Calvert, her backpack on. She appeared to be about to leave. Then she returned to the camp. Neither Ms Calvert or Ms Jackson gave evidence of such an occurrence. Had it occurred, in light of Ms Calvert's invitation to protesters to "grab" her if they wanted to leave, it would have been significant.

1232 Ms Lees gave evidence of seeing Ms Jackson and Jaskierniak getting their gear together, and making their way towards SRR; and of their returning to camp. [598] She made no mention of seeing Greig preparing to leave.

1233 McFadzean said that he heard Ms Jackson and Ms Dawson say that they intended to leave. He did not see them attempt to do so. In cross-examination he said that he heard at least one, perhaps two women saying that they wanted to go [599].

1234 Ms Dawson's evidence was that she saw Ms Jackson and others walking towards the "northern blockade", which was maybe 50 or 100 metres away [600]. Ms Jackson came back and told her that the loggers would not let her leave. She, Ms Dawson, gave no evidence of attempting to leave via SRR. Compare McFadzean's evidence of her stated intention to leave.

1235 Bowles gave evidence of hearing the interchange, of seeing Ms Jackson packing her bag and walking north. He saw a "whole bunch of loggers" standing "shoulder to shoulder" across the road. He saw Ms Jackson speaking to them, her shoulders sort of slump, and she came back to the camp, saying that the loggers would not let them out [601]. He made no mention of Greig participating in the incident.

1236 Fowkes gave evidence of making observations similar to those described by Bowles. In cross-examination he denied that it was a set-up.

1237 Ms Colson's brief evidence about the matter was essentially that she was told by Ms Jackson that they were not allowed to leave.

1238 Ms Epstein gave evidence of hearing Ms Jackson say that she wanted to leave, and of seeing Ms Jackson head towards people who were blocking SRR. They tightened their formation. She heard loggers say -

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1239 Exhibit E depicted the scene.

1240 Cross-examined, the witness said that she walked to the picket line with Ms Jackson. She had not packed her bag. Ms Jackson, she said, had walked several times to the picket line, and on one occasion she accompanied her. She did not recollect Greig being behind her. She agreed that a photograph, [603] taken facing south, showed Ms Jackson, then herself, then Ms Colson, then Greig. She did not clearly agree that what was being done was to gather evidence about what response there might be if protesters approached the picket line. Ms Jackson, she said, went to leave. At no stage did she, the witness speak to Ms Calvert [604].

1241 Kennerson gave evidence of seeing the incident. He heard nothing. Thirty loggers were in front of Ms Jackson, blocking the road. She stayed a minute, then left. Shown the photograph, exhibit 57, he agreed that it was taken at about the same time as the photograph exhibit E.

1242 Ms Garrett gave evidence of Ms Jackson and Ms Dawson walking north and trying to get out [605]. On any view her evidence was incorrect so far as it related to Ms Dawson.

1243 Ms Calvert conceded that Ms Jackson had said at the third meeting that she wished to leave. She was aware that Ms Jackson walked up to the picket line almost immediately after that meeting. At that time the witness was speaking with Ms Douglas, she thought to the south of the intersection. She could be seen in the background of the photograph taken facing south to which I referred a few moments ago [606]. She did not agree that her remarks to Dwan in the course of the third conversation showed that protesters would not be permitted to leave.

1244 Molloy, who is one of the loggers depicted in the photograph exhibit E, said that Ms Jackson just approached the group and "sort of stood there". She said nothing. [607]

1245 Cross-examined, the witness acknowledged the remarks made by Ms Jackson and himself in the course of the third meeting. What he had said was done to "stir her up". To my question he said that when she approached the men, he said nothing to her.

1246 Dent identified himself as one of the men shown in the photograph, exhibit E. He is, I interpolate, the man depicted second from the right not looking at Ms Jackson.

1247 The witness said that he saw Ms Jackson walk north. He did not hear a logger say anything to her. She could have walked through as it was. The loggers would have moved had she walked up to them. He denied that their presence there made it clear that she was not going to walk through [608]. There was, he said, a "huge difference" in the configuration that confronted Ms Nelson. In that case there was a line with arms linked across the road; but not at all times she was there [609].

1248 Wayne McGee gave evidence that a "whole group" were in the general area. He recalled that incident. Ms Jackson never came closer to the loggers' group than is depicted in the photograph, exhibit E. She walked up, stood and looked at them. He did not speak to her, and knew of nobody else doing so. He said:

[311]

1253 Ms Jackson gave no viva voce evidence of being pushed, let alone of two people including herself being pushed.

1254 Finally, I should say something more about the two photographs. Exhibit E shows a group of people - men, one woman at least, a girl and a boy. The boy is evidently the ten year old Jacob Molloy. The photograph also shows one man with a cup in his right hand. No arms are linked. Ms Jackson is, I estimate, one to two metres away from Jacob Molloy, the person directly in front of her. Greig is visible in the left foreground, distinctive by his hat. He is evidently some metres south of Ms Jackson.

1255 Exhibit 57, taken in the reverse direction, shows Ms Jackson, then Ms Epstein - probably holding a camera - then Kennerson, then Greig, then Ms Colson, and in the distance Ms Calvert and, probably, Ms Douglas.

1256 My conclusions are as follows: First, I consider that when Ms Jackson set off along SRR it was her intention to leave. I so conclude notwithstanding that she had not left earlier in the day despite her alleged intention of going home, despite the fact that she seemed to have very little idea by what means she might return to Melbourne, despite the statements by McFadzean before and after the loggers' party arrived that the protesters intended to stay, despite what I consider was her intention on the Sunday night and her intention until very shortly before she walked north, and despite the fact that she did not seek Ms Calvert's assistance. I think it is significant that she put on her backpack between the second and third meetings. It is also significant, to my mind, that she had clearly said, in answer to a direct question asked towards the end of the third meeting, that she was leaving. Her answer, heard on the Nocera videotape, seemed spontaneous.

1257 Second, I consider that the accounts which she, Greig and Ms Epstein gave of what occurred when she approached the picket were far from accurate. I do not accept her evidence that she approached very close to the loggers, even once. I do not accept her evidence that the loggers pressed together and linked arms. Nor do I accept Greig's evidence that the loggers "puffed out their bodies".

1258 Quite apart from Ms Calvert's "no violence, no hands on" instruction, to which I will refer in a moment, it seems to me very unlikely that the loggers' group - including children and at least one woman - would link arms or puff out their chests when confronted by an approaching Ms Jackson, or even by an approaching Ms Jackson and Greig. It also seems unlikely to me that the photographer to the south would have failed to capture one close confrontation, let alone more than one. Again, to my mind the disposition of the esky, the thermos, Ms Jackson and the people in front of her, shown in exhibit E, tells pretty strongly in favour of the people in front of Ms Jackson backing away as she approached - though remaining in front of her. That involves acceptance, in substance, of McGee's evidence - notwithstanding that his account was not put to Ms Jackson, Greig or Ms Epstein. The forensic point in that connection, properly made for the protesters, is not decisive.

1259 Third, it seems to me that the conduct of the loggers' group in backing away as Ms Jackson approached was conduct consistent with adherence to Ms Calvert's no violence, instruction. It was conduct giving practical effect to the conception of a picket as an act of persuasion, to the distinction between a picket and activity in relation thereto.

1260 Fourth, I do not accept evidence that any logger told Ms Jackson, or Greig, that they could not leave. I do think it likely, on the other hand, that something was said to Ms Jackson about running out on her companions.

1261 Fifth, in understanding what happened it is necessary, I think, to bear in mind the circumstance that, in my opinion, Ms Jackson had taken a big step by saying, in the presence of some of her companions, that she intended to leave. It was not a statement made, so far as the evidence shows, after any group discussion; and group discussions were a feature of protester conduct - both before and during SSP week. It was a statement of intended action contrary to the protesters' intentions as repeatedly stated by McFadzean that day. It was also a statement made by a fairly passive young woman. That is how she presented between 24-28 January, notwithstanding various remarks that she made. Further again, it was a statement made by a person who had little idea of the means by which she would travel back to Melbourne. Finally, it was a statement made by a person who had been accused of running out on her companions.

1262 In the circumstances which I have described, I consider that Ms Jackson was full of uncertainty when she approached the loggers. When they held position, though retreating back, I think that she abandoned her fragile intention of leaving. She then retired, and once again became part of the group - a group which, as an alleged victim of the picket, she could pronounce was imprisoned.

1263 Sixth, so far as Greig is concerned, exhibit E shows that at one stage he was some metres south of the loggers' group; whilst exhibit 57 shows him a greater distance south. I do not accept that he was either intent on leaving as he followed behind Ms Jackson, or that he ever tested the picket. His evidence of doing so was given at best lukewarm support by Ms Jackson's evidence. Other witnesses made either no reference or scarcely any reference to Greig in connection with the episode. On his own account, he did not even have his backpack on at the time; though even had he done so its significance would have been doubtful - a matter that I will discuss in another connection later in these Reasons. It also seems greatly improbable to me that, if he was seeking to leave by road, he did not seek to leave in his car. His evidence of not driving his car on the Monday because windows were broken does not sit comfortably with him driving it on the Friday; nor with Ms Garrett's evidence that he had said he would drive her to Apollo Bay on the Monday.

1264 In the event, in my opinion the episode involving Ms Jackson and Greig does not demonstrate that egress along SRR on the afternoon of 25 January - that is, at least until the questions of agreements arose - was not possible; that Ms Calvert's invitation was illusion and not reality. In so concluding I have not found it necessary to focus upon the fact that Ms Jackson did not seek Ms Calvert's assistance.

25 January: Ms Nelson's attempt to enter

1265 It is not in debate that Ms Nelson wanted to go to the protesters' camp at SSP Track on 25 January, and that she was inhibited from doing so, albeit that she was not contacted physically. Dent's evidence [613] shows that the loggers had no intention of permitting augmentation of the protesters' group, whether temporarily or otherwise.

1266 There is a question whether, that afternoon, it was the intention of any of Ms Nelson, Ms Gross or Ricky to go to the protesters' camp and remain there. Photographs [614] show what appears to be a bedroll on the ground behind Ms Nelson's vehicle. The question, however, need not be decided; though it may be said that any indication that a newcomer was intending to stay in the longer term would have strengthened the loggers' determination not to permit that person access to the protesters camp.

1267 Ms Nelson and Ms Gross gave certain evidence pertaining to food that was taken to SRR that afternoon; whilst Dwan and Ms Epstein gave evidence about the quantity of water that was brought to the protesters' camp. That evidence, and as well the evidence of Johnson and certain defendants pertaining to the matter, is discussed elsewhere in these Reasons. I there express conclusions adverse to the plaintiffs' case, insofar as that case alleges, in reliance upon the events of the Monday afternoon, that the defendants acted to deprive them of food and water.

1268 The certain fact that the defendants acted to prevent ingress of persons to the protesters' camp along SRR in the later afternoon of 25 January in my view says nothing upon the question whether it was open to the plaintiffs to leave along SRR at the time; and, if it was, the way or ways in which that was achievable.

28 January: Departures of McFadzean and Ms Jackson

1269 Later in these Reasons, in the context of the question whether or not there was a "police gate" to the picket, I canvass the evidence pertaining to the departures of McFadzean and Ms Jackson from SSP intersection on 28 January. For present purposes, it is enough to say that the circumstances of their departures were not such as would have justified any of the protestors believing that they were likely to be physically restrained, or subjected to violence, if they attempted to leave through the bush.

Other allegations of restraining conduct and/or violence

1270 Apart from the allegations already discussed, which specifically pertain to leaving or attempting to enter along SRR, the protesters gave much evidence of other incidents of alleged restraint or violence. Thus:

[323]

1271 In almost all instances the pertinent evidence of protesters and defendants was in great conflict. Most often the principal evidence consisted of allegation and denial, each of which may easily be given. There was no instance, so far as I can see, in which any plaintiff was shown to have suffered discernible injury by the allegedly violent act of a logger during SSP week. [615] That eliminates one potential source of corroboration of allegations made by protesters. Some evidence was given that persons not called as witnesses had suffered scratches and/or cuts. But not only did the alleged victims not give evidence, there was nothing to confirm the evidence which was given - photographs, for example. So far as evidence of protesters about violent incidents was supported by other evidence, the support was most often along the lines that a particular protester had been seen emerging from the bush, and had given an account of some violent or terrifying episode. I admitted evidence of that type as informing the state of mind of the observer - that is, as tending to the formation of a belief that he or she was in truth unable to leave through the bush. Such evidence was of a kind readily given and not readily capable of either verification or disproof. That is so whether or not it was also admissible to corroborate the happening of the allegedly violent logger conduct.

1272 In all, for reasons indicated, resolution of conflicts in the pertinent evidence poses difficulties. The fact that very many allegations were made by the protesters does not assist resolution of individual conflicts. It cannot be said that the fact that many allegations were made means that any of them were true any more than a conclusion that one of them was true means that all of them were true; or that if one was false then all were false. In the end, the pertinent evidence must in each instance be analysed and conclusions reached, always bearing in mind the credibility of the particular witnesses and, where relevant, the onus of proof.

1273 Against that background, I go to the incidents alleged.

[324]

1274 I have already considered evidence given about the confrontation on 24 January and the damage to the two vehicles on the night of 24/25 January. The confrontation involving Chris Wheeler and others said nothing, in my opinion, as to the likely conduct of loggers at a picket line which was under Ms Calvert's control and which was subject to a police presence. In any event, the confrontation could not sensibly be characterised as involving logger violence. For the most part that day it was the protesters who were aggressive. The incident in which Ms Dawson was caught was brief and, as I have explained, essentially a consequence of miscalculation on both sides.

1275 The incident in which the windows of the two vehicles were damaged, by contrast, indicated preparedness by one or a few loggers to damage the property of protesters. It is doubtful whether that incident could sensibly be extrapolated to suggest the likelihood of personal violence at a picket, or in a confrontation under the control of an experienced union official. Further, should it have been supposed by the offender(s) on the night of 24/25 January, a tent having been set up, that anyone was sleeping in either vehicle at the time when rocks were thrown?

As to B:

1276 Greig gave evidence that after he had unsuccessfully tested the picket on SRR on the afternoon of 25 January he put on a backpack and walked into the bush, travelling north, parallel to SRR and 5 to 10 metres to its east. He was a couple of metres into the bush when he was approached by four men, and was told that it was a picket line and that he could not cross it. [616] Initially in his evidence he gave no evidence of being physically impeded on that occasion; but a little later he said that he was "manhandled back to the camp." [617]

1277 Asked by his counsel whether he had made any other attempts during "that morning" to get away from the picket, Greig replied:

"I think I continually attempted to get out." [618]

It is not clear what counsel meant by his reference to "that morning", or what Greig meant by his reply in that connection. Apparently the question was directed to the Monday. Any attempts by Greig to leave that day could not have been made during the morning. The loggers' party was not there during the morning.

1278 On the Tuesday, Greig said, he tried to leave the camp "a number of times". He finally succeeded, at about 2 pm, perhaps a little earlier. [619] He described two attempts to walk south through the bush. One took place late on the Monday night. On that occasion he travelled a short distance, was "apprehended" by a group of men, was "turned around" and told to go back to the camp. [620] See also his later evidence [621] in which he claimed that the loggers tried to grab his backpack from him, and that he resisted. According to his evidence, when travelling south it was at least 40 kilometres to any sort of town. [622]

1279 I do not understand Greig to have given evidence of any attempt to leave SSP intersection after 26 January. But he did give evidence that on the Wednesday he found fishing line criss-crossed through trees and shrubs, forming a lattice work from ground to above head height. It was adjacent to SSP Track, not easy to see, he walked into it, and a bell rang. He did not attempt to ascertain how extensive "this system of fishing wire" - counsel's words - was. [623]

1280 Greig was very extensively cross-examined. The overall thrust of the cross-examination was undoubtedly to show that he was a witness much of whose evidence was the product either of imagination or exaggeration. There was much cross-examination with respect to his journey to and from Apollo Bay, and cross-examination also about his testing the picket on SRR on 25 January. So far as I can see, however, he was not cross-examined about his evidence of failed attempts to leave through the bush on 25 and 26 January.

1281 Notwithstanding the forensic circumstance which I have just noted, I am quite unpersuaded that Greig made any unsuccessful attempts to "escape" through the bush, either on 25 or 26 January. His first alleged attempt followed close on what he claimed was an attempt to leave along SRR. It was, I think his evidence implied, his response to being prevented from leaving along the road. But I have concluded that he was not so prevented. Further, one of the reasons which Greig gave for returning to SSP intersection on 26 January was that he was concerned for his vehicle, his belongings and his dog. They were equally considerations on the afternoon of 25 January. Further again, his evidence concerning this alleged attempt was not consistent upon the question whether or not he was subject to any physical restraint; and it made no mention of Sheppard, by contrast with particular (g) to paragraph 5 of the statement of claim.

1282 I next refer to Greig's evidence of an attempt to leave SSP intersection in the middle of the night of 25-26 January. It stretched credibility to breaking point. On his account, loggers having damaged his vehicle on the night of 24 - 25 January, he having been restrained by loggers on the afternoon of 25 January from leaving the intersection whether by walking north along SRR or by walking north in the bush, loggers having set up camp both north and south of the intersection on 25 January, it being on his estimation, travelling south, at least 40 kilometres to any sort of town, his vehicle, belongings and dog all being at the intersection, his dog being tied in his vehicle, he nonetheless decided to walk to freedom by himself in the middle of the night. It is also the fact, I mention it only in passing, that the pertinent allegations, [624] are not wholly consistent.

1283 It is conceivable that, for some personal reason, Greig may have ventured into the bush close to the protesters' camp on the night of 25-26 January, and there encountered a logger or loggers who told him to return to his camp. But that is not the case which he sought to make - witness his reference to a backpack - and I should not speculate.

1284 The second occasion on which Greig attempted to leave the protesters' camp by walking south took place, according to his evidence, on the morning of 26 January. He gave evidence that he took a similar route to the previous occasion. He did not give any account, so far as I can see, of the details of the alleged attempt to leave; in particular, why it was unsuccessful. The incident is not specifically referred to in the very extensive recitation of events in the particulars sub-joined to paragraph 5 of the statement of claim. It could be encompassed within particular (t); but the plaintiffs' further and better particulars contain nothing to suggest that particular (t) was directed to the incident of which Greig gave brief evidence. Bearing in mind, also, considerations pertinent to all instances about which Greig gave evidence of unsuccessful attempts to leave through the bush on 25 and 26 January, his evidence has not persuaded me to a conclusion that he attempted to leave SSP intersection by travelling south through the bush on the morning of 26 January.

1285 Apart from their relevance to the broad issue of alleged restraining conduct and violence, my conclusions with respect to the incident pleaded by paragraph 15 of the statement of claim [625] mean that the claim thereby raised fails.

As to C:

It is the fact that Greig, Fowkes, Jaskierniak, and Ms Douglas walked out of SSP through the bush on 26 January; and that Greig, Fowkes and Ms Gross later walked back in. I later conclude that a good deal of the evidence given by Greig and Fowkes about the journey and surrounding events was unreliable. For present purposes I focus on one aspect of the evidence given by Fowkes and Ms Gross. They said that, during the inwards journey, they heard "noises" in the bush. [626] According to Fowkes:

[326]

1286 That was vague and speculative evidence. Greig, Fowkes and their companions were not the only protesters to travel a distance through the bush on 26 January. None of the protesters who did so in fact encountered any logger. Whether or not Fowkes and Ms Gross heard "noises", it could not be concluded that the noises were of loggers patrolling or searching for protesters in the bush. Necessarily, then, it could not be concluded that loggers would have done violence to any protester that they came upon in the bush that day.

I go to D:

1287 On 26 January, McFadzean and Kennerson, having walked north in the bush, emerged onto SRR. [628] Thereafter they were driven back to the vicinity of SSP intersection in a vehicle driven by Molloy and in which Chris Wheeler was also a passenger. McFadzean gave evidence that this was a failed attempt to leave the area. The burden of the evidence of Molloy and Chris Wheeler was that the incident involved game-playing by McFadzean; and that when the game was over McFadzean and Kennerson readily returned to the intersection and to their camp.

1288 If the incident was in fact an attempt by McFadzean to leave along SRR, and if Molloy and Chris Wheeler understood that to be the case, then the actions of the latter would suggest that to them at least the picket was more than simply an act of persuasion.

1289 I go to the pertinent evidence .

1290 McFadzean said that the protesters spent quite a bit of time on 26 January consolidating their camp. A small group decided on the Tuesday morning that they would "attempt to escape". He believed that the group left at "late morning to lunchtime". He was referring to the group comprising Greig, Fowkes, Jaskierniak and Ms Douglas.

1291 McFadzean said that when Greig's party left the camp area a diversion was established. He and others played cricket. Donato climbed up a tree and made noises.

1292 Shortly after that, according to the witness, he made a first attempt to get out. He walked a short distance north in the bush, parallel to and not far from SRR. He contacted a trip wire made of fishing line. Loggers called out that someone was escaping. He returned to the camp.

1293 Not long after that, McFadzean said, he made a second attempt to leave. He and Kennerson entered the bush further east of SRR, walked through the forest for approximately half an hour, in which time he thought they would have covered 300 to 500 metres, then traversed back onto SRR road.

1294 On his account, he and Kennerson were walking towards Turton Track intersection when a vehicle travelling north passed them by. A short time later another vehicle headed south from Turton Track, travelling at walking pace, two loggers walking in front of it. The loggers intercepted them and said that they were not going any further.

1295 A short time later, according to the witness, Chris Wheeler and Molloy approached in a vehicle from the south. He told them that he was walking out and that he intended to leave. Chris Wheeler said that he was not going anywhere, that now he was on the road he was going back to SSP. He, the witness, felt threatened and got into the vehicle. Molloy and Wheeler were with him. Kennerson was in the tray. They were driven back to the loggers' camp.

1296 McFadzean gave evidence that Kennerson, he assumed, walked back into the protesters' camp. He had a conversation with Molloy and Chris Wheeler. Molloy told him, in substance, that the loggers intended to keep the protesters there for as long as it took to get an assurance that they would not engage in protests in the Otways. Chris Wheeler, in response to a question, said that the loggers' action was related to the Colac meeting. It was following this conversation, which began in the vehicle and continued for perhaps five or 10 minutes after arrival back in the vicinity of SSP intersection, that Wheeler escorted him through the middle of "the loggers' blockade" and back to the protesters' camp.

1297 Kennerson gave evidence that, it must have been on the Tuesday morning, he and Donato trekked north then west through the bush and established a route from SSP Track to SRR. This took them some hour and a half. He estimated that the route established them northwards on SRR one to one-and-a-half kilometres north of SSP Track.

1298 According to the witness, he and Donato then returned to the camp. After a conversation with conservationists

[330]

He, the witness, then appeared from where he was hiding and was put into a different vehicle.

1301 The vehicles, on his account, travelled south, stopping roughly 500 metres north of the intersection. Then he and McFadzean walked into the camp, escorted.

1302 Initially, Kennerson gave evidence that they returned to the camp at about 2.30 to 3 pm. Later, he said it was more likely that this happened between 3.30 and 4.30 pm.

1303 Kennerson first gave evidence that the journey back to SSP Track after he and Donato had established the route to SRR took less time than the journey outwards. But then he said that he thought that the loggers had established that protesters had left the campsite, and were patrolling the bush. So he and Donato spent an extended time hiding in the bushes. His best recollection was that it took them two hours to get back.

1304 The witness gave evidence that he did not know how Donato got back to the protesters' camp on the second occasion. He assumed that the latter must have gone through the bush, notwithstanding that, on his account, Donato was very fearful of logger violence.

1305 I should mention one other aspect of Kennerson's evidence. He said that McFadzean packed a bag and took it with him on their trek. McFadzean gave no such evidence, and Molloy said specifically that McFadzean did not have any gear with him when they met on SRR that day.

1306 Molloy gave evidence that on the Tuesday afternoon he was informed by loggers that there were two protesters on SRR. He drove about half the way up to Turton Track intersection, maybe more, and saw Chris Wheeler, two other loggers, McFadzean and Kennerson. He spoke to McFadzean, saying that the latter had broken the agreement; by which he meant the agreement that the loggers and protesters occupy separate areas. McFadzean said that he was not going back into the bush again and that he might as well go back to the protesters' camp. Chris Wheeler said that they would give him a ride. He, Chris Wheeler and McFadzean got into the front of the vehicle and Kennerson got onto the tray. They drove southwards, stopping maybe 30 to 40 metres north of the intersection. There was then a bit of a conversation, but he was not involved in it.

1307 Cross-examined, Molloy gave evidence that McFadzean did not have any gear with him. The scrub was good enough for walking. The witness said it was his impression was that this was not a serious attempt to get out.

1308 Cross-examined about the consequences of someone breaking the discrete areas agreement, Molloy said:

[334]

1309 The witness denied saying what McFadzean attributed to him.

1310 Chris Wheeler gave evidence that he was called and told that there were protesters behind the picket, about halfway between SSP intersection and Turton Track intersection. He drove south and saw two protesters, one of whom he thought was sitting and one standing on the side of the road. One or two loggers were in the area. Molloy arrived at some stage. McFadzean said he was walking up SRR. He told McFadzean that the latter probably would not get through the other picket. McFadzean said he was not walking back through the bush and that he might as well go back to the camp. They returned, with McFadzean in the front of the vehicle and Kennerson on the tray.

1311 Cross-examined, the witness gave evidence that he did not think that McFadzean wanted to go anywhere. His evidence was, in effect, that he believed McFadzean was acting as a decoy whilst other protesters were walking in and out along the side of the road. He said that his remark to McFadzean that the latter would probably not get through the other picket was a bluff. He gave no clear explanation why he would have sought to bluff McFadzean in that way. He denied that he engaged in a conversation such as McFadzean alleged.

1312 Ms Calvert gave a little evidence about the incident; but it was not first-hand. Dwan and Ms Dawson gave a little evidence of McFadzean's return to the camp.

1313 Where does the evidence lead?

1314 First, it is clear that McFadzean and Kennerson travelled north through the bush and then west to SRR, arriving at a point about halfway between SSP intersection and Turton Track intersection.

1315 Second, this activity apparently took place on the afternoon of 26 January. By the time it took place the protesters had engaged in consolidating their camp and a decision had been made that the Greig group should attempt to leave.

1316 Third, contrary to McFadzean's doubtful recollection, [633] I think it is certain that by this time Ms Miller had attended the intersection, Robinson also. At the time of Ms Miller's visit McFadzean had travelled into SSP coupe in Chris Wheeler's ute; and on his account he had given Ms Miller the letter [634] to which I referred earlier in these Reasons. I later conclude, contrary to McFadzean's account, that he had made no request to Robinson that the protesters be assisted to leave SSP intersection.

1317 Fourth, McFadzean took no gear with him. Kennerson's evidence to the contrary is opposed to the weight of evidence.

1318 Fifth, whatever intention McFadzean might have had, I could not conclude that Kennerson had any intention of doing more than escort McFadzean to SRR. That is what he said that he and Donato did, neither of them walking up SRR with McFadzean. Obviously, Kennerson emerged onto SRR at some stage, for he was seen there by Molloy and Chris Wheeler. Further, the weight of the evidence is opposed to his account that he emerged onto the road only when he saw McFadzean in a vehicle. The burden of the evidence is also opposed to his account that he was put into another vehicle; likewise his account that the vehicles stopped about 500 metres north of SSP intersection. Indeed, the whole distance from SSP intersection to Turton Track intersection is only a little over one kilometre, which also renders unreliable Kennerson's evidence that the group struck SRR about one to one-and-a-half kilometres north of SSP intersection. For all the problems with his evidence, however, I see no reason to attribute to his activity a purpose which he did not himself attribute to it.

1319 Sixth, there is no reason why I should reject Kennerson's evidence that earlier on 26 January he and Donato had established a route north of SSP Track through the bush, and thence to SRR. That evidence is compatible with Kennerson's evidence of them later escorting McFadzean along such route. It should be noted that on Kennerson's account, supported in part by the evidence of McFadzean, the treks to and from SRR were made without encountering any logger.

1320 Seventh, Kennerson's evidence of assumed logger patrols, noises in the bush, and fear, was, I consider, a late and non-credible flourish. Had it been truthful evidence it seems very unlikely that he, Donato and McFadzean would have later set off into the bush; and very unlikely that Donato, said by Kennerson to have been fearful of logger violence, would have retreated through the bush back to the protesters' camp. That Donato did so is the inevitable inference from the circumstance that, according to Kennerson, he accompanied McFadzean and Kennerson north, yet did not return by vehicle.

1321 Eighth, implicit in my last conclusion is a finding that Donato did accompany McFadzean and Kennerson on the trek north. McFadzean made no mention of Donato. True also it is that Donato did not give evidence. But, despite all the oddities of Kennerson's evidence, I do not consider that I should reject it on this point.

1322 Ninth, there was certainly conversation between Molloy, Chris Wheeler and McFadzean at the place where the return journey commenced. I am satisfied that McFadzean said he was walking out, that Chris Wheeler told him he probably would not get through the other picket, that Molloy told him he had broken the agreement, and that McFadzean said he was not walking any more through the bush.

1323 Tenth, the real debate is whether Chris Wheeler said to McFadzean that the latter was on the road now, that he was going back to SSP intersection; whether McFadzean said that he might as well go back to the camp; and whether Chris Wheeler then offered to give McFadzean a ride.

I consider it likely that Molloy and Chris Wheeler did believe that this was not really an attempt by McFadzean to leave the area. In that context I think it is likely, following upon what Molloy said and McFadzean's response, that Chris Wheeler did say to McFadzean that now he was on the road, he was going back. I think it is likely that McFadzean chose to take a ride back rather than walk - that is, walk in whatever direction he chose.

1324 Eleventh, the question thus far unresolved is whether McFadzean was really intending to leave the area. In favour of a conclusion that he was so intending is the fact that he made the trek, that he was on SRR and perhaps walking north when met by loggers, and that he had forecast in his letter [635] - if it was written on 26 January and before Ms Miller departed - an intention of getting "outa here". It is also true that he did not know of the picket at the Turton Track intersection.

On the other hand:

v A group had left the protesters' camp not long before, following upon discussion amongst the protesters. McFadzean had given them navigational equipment. He had not gone with them.

v Of those who remained, McFadzean was a senior figure and a principal spokesman. He was present in the Otways, on his account, to provide a kind of pastoral care to forest protesters.

v In his conversation with Robinson he had not broached the question of provision of police assistance for the protesters to leave; nor had he said anything about protesters leaving through the bush, or alleged difficulties in them doing so.

v He left SSP without any gear at all.

v He had repeatedly stated on 25 January that the protesters intended to stay. Against that background, of all the protesters he was the least likely, I consider, to attempt to leave.

v He gave what I consider was an improbable and opportunistic account of certain remarks which he alleged were made by Molloy and Chris Wheeler in the course of the incident.

v There were other reasons why he might have travelled north as he did, and thence made his way onto SRR. So, for example, it provided a way of establishing the extent of the logger presence on SRR; of logger response to a protester emerging onto the road; and as well was apt to stir the pot.

1325 The matter is, in my opinion, very doubtful. But in the end I have concluded that McFadzean's intention, until he was offered the options of going back into the bush or returning to the intersection in the vehicle, was to leave the area by the route of his choice. That being so, the situation was one in which, from his perspective, he was restrained from leaving along SRR. Because, however, I have concluded that Molloy and Chris Wheeler did not believe that McFadzean was attempting to leave, and because in my view such a belief was well open to them, I do not consider that the incident in fact bespoke an intention by the loggers to restrain protesters leaving along SRR. No violence, I add, was in fact inflicted on McFadzean or Kennerson.

I go to E:

1326 Later in these Reasons I conclude that the assaults upon Dwan alleged by paragraphs 17 and 19 of the statement of claim [636] are not made out. That leaves for present consideration the allegation raised by particular (f) to paragraph 5, that is, that on 25 January

[336]

1327 Dwan gave the following evidence, as I understand it, in connection with that allegation: not long after the loggers' convoy arrived he went from his car into the regrowth on the western side of SRR. He had with him his swag and blankets. He intended to lie down and have a rest. He flattened out some ground, looked up, and saw three men, who came close. One of them he identified as "Kermit" Nowell. They said very little other than "get back to your camp". He picked up his belongings and walked towards his car. The men followed him closely and "sort of surrounded" him. They followed him as far as the road, then he walked over to the camp. [637] He gave no viva voce evidence, I think, having been put in fear by this particular incident. [638] He gave no evidence of mentioning it to Ms Calvert on the afternoon of 25 January.

1328 Dwan was cross-examined why it was that he went into the bush at the time, whether it was just a tactic to make himself unavailable. It was suggested to him, and he denied, that it was a tactic he had used on another occasion. He affirmed that he needed to rest on this occasion because he was tired and tense. [639] As I understand his evidence, this was not the only occasion on which he lay down in the grass or bush that day. [640] Be that as may, I do not understand that Dwan was directly cross-examined to the effect that the story was a concoction.

1329 I think that it is entirely possible that, at some stage following upon the arrival of the loggers' convoy, and either before the first meeting between Ms Calvert and some of the protesters, or else after that meeting and before the third meeting, Dwan disappeared into the bush. It would not have been the first time that he did so in the course of an incident involving protesters and loggers. Why he did so on this occasion need not be explored. It can clearly be said, however, that on his own account he was not attempting to leave the general area, still less cross a picket.

1330 I further consider it likely enough that a group of loggers came upon Dwan in the bush, and that they told him to go back to his camp - notwithstanding that this preceded the establishment of the picket and agreement about discrete areas. The idea that, faced by the arrival of loggers in numbers, a protester would simply disappear into the bush with his swag for a lie down was apt to stir loggers' emotions. What I accept the loggers said to Dwan, however, says nothing about the nature of the picket when it was established. Finally, I would not conclude that this unusual episode involved an instance in which other loggers acted in concert with the defendants in furtherance of the common design pleaded by paragraphs 45(b) of the statement of claim.

I go to F:

1331 Jaskierniak was a plaintiff at the outset, but not at trial. Causes of action pleaded by paragraphs 13 and 14 of the statement of claim were deleted when he ceased to be a party.

1332 Jaskierniak and Ms Douglas arrived at SSP intersection, probably, in the early afternoon of 25 January. They left with Greig and Fowkes on 26 January.

1333 Neither Jaskierniak nor Ms Douglas gave evidence at trial, though at one stage plaintiffs' counsel intimated, by reference to discussion about a subpoena, at least a probable intention of calling the latter.

1334 Notwithstanding that Jaskierniak was not a plaintiff as at trial, and that neither he nor Ms Douglas was called to give evidence, other protesters gave evidence of observations which they made on the Monday afternoon pertaining to each of Jaskierniak and Ms Douglas. The evidence was to the general effect that Jaskierniak and Ms Douglas were seen emerging from the bush to the north east of the intersection, being chased by loggers; or that the witness was told of such an incident. [641]

1335 It is not altogether clear whether the witnesses were describing the same alleged incident. Some witnesses referred to a man with a stick being in close proximity to Jaskierniak. A photograph [642] said to depict the situation which I have just described was put into evidence.

1336 Ms Jackson gave evidence that after the alleged incident Jaskierniak and Ms Douglas had lots of scratches. [643] She improved on that evidence in re-examination, saying that they had scratches and cuts. [644] No photograph showing such a thing was introduced into evidence. Having regard to the propensity of the protesters to take photographs, often enough inconsequential, the absence of pertinent photographs is somewhat surprising.

1337 It is not easy, despite the evidence given by the protesters, to reach a conclusion about what happened in any incident involving Jaskierniak and Ms Douglas on 25 January. Dwan gave evidence about what he saw, and then of taking the photograph, Exhibit AC. The sequence of which he gave evidence was in my opinion untenable. Moreover, his account varied as to whether he saw both Jaskierniak and Ms Douglas, or only one of them, emerge from the bush. Again, he identified, at least as a matter of probability, Sheppard as the man with the stick in the photograph which he took. Sheppard denied it, and another photograph, [645] probably taken on 25 January, supported his denial. Further, Ms Jackson gave evidence of seeing injuries suffered by Jaskierniak and Ms Douglas. So far as I can see, no other witness did so; and no other evidence confirms Ms Jackson's account. Moreover, Exhibits AC and U suggest, in sum, that Jaskierniak was wearing a long-sleeved shirt or jumper. The areas available for cuts and scratches would seem likely to have been confined. Again, Bowles' evidence that, in effect, Jaskierniak and Ms Douglas were followed out of the bush by "a whole bunch of loggers", maybe five, [646] does not sit easily with the scene depicted by the photograph, Exhibit AC. Nor again does the photograph suggest the likelihood that, as Kennerson put it, Jaskierniak was "chased back into the camp". [647] Finally, the man depicted in the photograph, Exhibit AC, with what is probably a stick raised above his head, is evidently looking away from Jaskierniak; whilst of the other men depicted in the photograph, several are not even looking towards the scene - a circumstance suggesting that those emerging from the bush had not made much noise.

1338 The problem of deciding what happened is made the more difficult, of course, because neither Jaskierniak nor Ms Douglas gave evidence. Putting to one side the inference that might be drawn because the plaintiffs did not call them, the bare fact that they did not give evidence leaves the matter uncertain. The problem is compounded by the circumstances that on the evening of 25 January Jaskierniak participated with other protesters in a game on SRR; and that on 26 January he and Ms Douglas ventured into the bush and made their way to Turton Track, and thence to Apollo Bay. Neither of those circumstances is readily consistent with either of them having been the victims of logger violence on the afternoon of 25 January.

1339 All in all, the plaintiffs have satisfied me that Jaskierniak entered the bush north of SSP Track, probably in close proximity to SRR, on the afternoon of 25 January; that his presence was detected by a logger or loggers; and that by some means, possibly involving a threat by the logger seen in Exhibit AC, he was persuaded to go onto SRR, and from there to the protesters' camp.

1340 It is unclear whether this incident occurred before or after Ms Calvert's third conversation with protesters. If it occurred before the third conversation and if it involved violence, then it is difficult to understand why neither Jaskierniak nor Ms Douglas then mentioned it; for in that conversation Ms Calvert said that there would be no violence.

1341 Beyond what I have thus far said, the reason why Jaskierniak went into the bush is undisclosed. Whether Ms Douglas was then with Jaskierniak is unclear. The person(s) who could have resolved these uncertainties by his/their evidence did not do so.

1342 In the event, it is not possible to conclude, considering the available evidence, that this incident involved restraining conduct or violence by a logger or loggers.

As to G:

1343 In a later section of these Reasons, dealing with use of chainsaws, I canvass evidence given by Fowkes, Ms Colson, Ms Lees and Kennerson pertinent to the matter now under consideration. In all, I conclude that Pearce acted provocatively by running his chainsaw near the banner, on the Thursday, that the chainsaw was not fitted with its bar and chain, that Fowkes was not physically threatened by Pearce but rather responded to one provocative act by a provocative act of his own, that Fowkes at the time was setting up a photo opportunity which was in fact captured by Ms Colson, and that Pearce did not hold his chainsaw over a policeman's shoulder and towards Ms Lees as she had alleged in her evidence. It follows that I do not accept that the incident disclosed logger violence. That conclusion is subject to one qualification. Ms Colson gave evidence that in the course of the incident her camera was pushed into her face by another man on the loggers' side of the banner. The probabilities favour a conclusion that this happened. It is not difficult to imagine that a logger or logger supporter may have reacted in such a way to seeing what Ms Colson was doing in a situation of which Fowkes was in significant part the architect.

As to H:

1344 A good deal of evidence was given concerning the arrival of the Gross party and of the events which thereafter occurred, events which culminated in the departure of the members of that party along SRR. The evidence could not be reconciled in a number of respects.

1345 For present purposes the questions which arise are whether any and which of the protesters were falsely imprisoned at a point east of the gate to SSP coupe on the late afternoon of 28 January, and, if so, for what period; and whether any of the protesters were, as they asserted, then subjected to violence by defendants. The first issue arises in consequence of matters discussed at paragraphs [58]-[67] of these Reasons. According to the amended particular (hh) to paragraph 5 of the statement of claim, the plaintiffs who were detained were Ms Lees, Ms Gross, Dwan Fowkes, Greig, Ms Colson and Ms Dawson.

1346 My conclusions with respect to the issues joined, with reference to some of the evidence, are as follows:

1347 First, the Gross party arrived at SSP Track, a little to the east of the gate to the coupe, at about 5.30 - 6 pm [648].

1348 Second, the newcomers began to walk westwards along SSP Track. They were seen by some of the protesters, who by giving the newcomers a noisy welcome attracted the attention of some of the loggers.

1349 Third, a majority of the protesters ran east along SSP Track, in two waves, towards the newcomers. They met at a point close to the gate of the coupe.

1350 Fourth, one or two of the women protesters, in the company of one or two policemen, were then in the vicinity of that meeting point. Those protesters joined their companions.

1351 Fifth, a group of loggers ran to the vicinity of the point where the newcomers and protesters then were. The group included Molloy, but not Ms Calvert.

1352 Sixth, the loggers were determined that the newcomers should not enter the protesters' camp [649]. That is what Molloy, at least, said to the newcomers.

1353 Seventh, to make it clear that the newcomers were not being permitted to enter the protesters' camp, and consistently with Ms Calvert's "no violence" edict, the loggers at one stage linked arms whilst standing across SSP Track. Otherwise they simply formed a line across the track.

1354 Eighth, Molloy sent word for Ms Calvert to attend. His position, and that of the other loggers, was that it was for her to sort out what should be done.

1355 Ninth, in the interim before Ms Calvert arrived there were abortive discussions between, particularly, Molloy and Bill Gross. They were abortive for two reasons: First, Bill Gross asserted, and he was not believed, that he was a father and not a greenie [650]. Second, Dwan and Ms Lees insisted that it was for (one of) them to speak with the loggers; and they argued about which of them it should be.

1356 Tenth, Ms Calvert arrived and after a period of negotiations the Gross party signed a no-protest agreement and left along SRR.

1357 Eleventh, the Gross party was probably in the vicinity of SSP intersection for about one-and-a-half to two hours in all. In so concluding I recognise that some estimates of the duration of the incident were much shorter, and others considerably longer. I think it likely that some of the longer estimates were considerably affected by the fact that in the course of the incident protesters and newcomers were exposed to a storm of some intensity. It is unsurprising that people caught in the downpour over-estimated its duration. [651] I think also that it rankled with the protesters and newcomers that the loggers used a banner, which they put over their heads, to give them some protection during the storm. The banner, in fact, was probably of quite limited protective worth. But that would not dispel the impression which its use created.

1358 It is also likely, I think, that some longer estimates of the duration of the incident were affected by the impression that it lasted until night time. The likelihood is, I consider, that the storm was associated with overcast conditions which made it appear later than it really was [652].

1359 In concluding that the incident occupied not more than two hours in all I have also borne in mind the fact that Robinson received pertinent reports at 1953 hours and 2130 hours [653]. The times of these reports do not mean that the events which they described had recently occurred. But if they did mean such a thing, then it would suggest that the whole incident occurred later in the day than I have concluded was the case; not that the duration of the incident itself was any longer.

1360 Twelfth, some protesters gave evidence that they were not free to cross the picket and by that means return to their camp [654]. For the most part their evidence rested upon the fact that the loggers stood across SSP Track. Some evidence was given, also, of observed jostling between the opposing groups. I am satisfied, I should say, that there was in fact some jostling at least at one stage in the course of the incident.

1361 Thirteenth, Fowkes gave evidence that Ms Calvert told the protesters that they were not permitted to return to their camp. I am satisfied that she did not say such a thing.

1362 Fourteenth, it is the fact that some protesters passed through the picket line - one or both ways [655]. That they were able to do so reflects, I think, adherence to Ms Calvert's no violence edict; and also an uncertainty amongst the loggers, at least until the arrival and intervention of Ms Calvert, as to what should be their position with respect to the protesters [656].

1363 Fifteenth, insofar as the plaintiffs alleged by their statement of claim particular incidents of logger violence in the course of the incident which would or might suggest a determination not to let the protesters return to their camp, either no evidence was led or, I later conclude, the allegation was not made out.

1364 Sixteenth, there is no evidence that the picket extended beyond the width of SSP Track. Ms Epstein gave evidence, indeed, of walking "around the side" of the loggers' line - albeit that she approached from behind the men.

1365 Seventeenth, against the background of the conclusions which I have thus far expressed, it seems likely to me that, until the storm ensued, the only real issue was whether the newcomers would be permitted to travel west along SSP Track in order to reach the protesters' camp; and that no question arose whether the protesters could return to their camp along SSP Track, let alone by any other route. The real issue was, I add, hijacked by the insistence of Dwan and Ms Lees that one of them must speak for the newcomers with the loggers.

1366 Eighteenth, it is only sensible that, when the storm occurred, the protesters would have wished to return to their camp. But in fact almost none of them did so. Rather, some wet weather gear was brought down to them. Those that stayed must have believed that they were precluded from walking up SSP Track to their camp. Although some protesters had passed through, or around, the picket, I consider that the jostling which had occurred, and perhaps some remarks made by loggers, render such a belief tenable.

1367 Nineteenth, I would conclude that the picket, if it prevented all travel westward, constituted a total confinement. For it might be said, although the plaintiffs did not so argue the particular matter, that travel in another direction at that time of day and in the particular weather conditions would have been an unreasonable means of available egress from the area in which the protesters then were.

1368 Twentieth, the question is then whether the plaintiffs have established that the picket prevented them from travelling westwards to their camp through the bush as distinct from along SSP Track. What the protesters did when the storm occurred implies them having a belief that all passage westward was denied them. But it seems to me that such a belief was unjustified. Such confrontation as had occurred had taken place on SSP Track. That is where the loggers' group was, a group that was not numerous. Moreover, the plaintiffs have not satisfied me that, had they attempted to regain their camp by travelling through the bush, the loggers would have prevented them doing so. Further again, the distance to be travelled was short, it would not have been necessary to walk far into the bush to outflank the loggers' picket, and the police were on hand. I do not think it could be said to have been an unreasonable means of egress.

1369 Twenty-first, if I was wrong in my conclusion that there was no false imprisonment to the east of the picket, I would nonetheless conclude that Dwan was not so imprisoned. On his own account he walked through the picket, for which reason he had an awareness that it was not impermeable.

1370 I turn to the discrete allegations of logger violence raised in connection with this incident.

1371 Particular (ii) to paragraph 5 and paragraph 23 of the statement of claim allege that Greig was punched by a defendant or other logger whilst attempting to return to the protesters' camp [657]. Greig gave no evidence of any such incident. The cause of action pleaded by paragraph 23 necessarily fails. Beyond that, it might be thought fairly remarkable, at least in ordinary litigation, that a quite serious allegation should be made and that no evidence should then be adduced to support it.

1372 Particular (jj) to paragraph 5 of the statement of claim, and paragraph 25 thereof, allege in substance that when Fowkes attempted to return to the protesters' camp he was punched and kicked by Wilson; and that the latter also stomped on his foot. Paragraph 23 speaks in terms of the alleged incident occurring "at the campsite"; but it is doubtless referring to the incident alleged by particular (jj).

1373 Fowkes gave evidence that he was standing on SSP Track when about 20 loggers including Wayne McGee, Molloy, Wilson and Nocera raced down the track. He was swamped by the loggers, surrounded by several of them -

[339]

He was, he said, barefooted.

1374 In cross-examination, he gave evidence that he was punched by Nocera, Molloy and McGee [659]. He made no mention of Wilson. That was also the burden of his evidence in chief.

1375 Fowkes' evidence apart, Kennerson gave evidence of being down SSP Track at one stage during the incident, and of seeing Fowkes punched in the stomach by, he believed, Molloy [660]; whilst witnesses called by both sides referred to there having been some pushing, shoving and jostling.

1376 Each of McGee, Molloy, Wilson denied the allegations made against them. Nocera did not address the matter; but McGee said that he did not see any assault on Fowkes by the other men, including Nocera.

1377 In the course of his evidence, Wilson claimed that he was not even in the vicinity of SSP Track on the late afternoon of 28 January. [661] He also denied [662] that photographs in which he was identified by Fowkes [663] depicted him. He was not cross-examined about that denial. One photograph is a rear view. The other photograph does not depict the face of the man said by Fowkes to be Wilson. I must say, however, that the apparent build of the man depicted bears little resemblance to the build of Wilson as depicted in part Exhibit F [664], or as I saw him in the witness box. Nor, I consider, does the shirt worn by Wilson in the photographs part Exhibit F bear anything more than a passing resemblance to the shirt worn by the man identified as Wilson in the photographs Exhibits Z and 54.

1378 Molloy, as I have noted, gave evidence denying that he had punched Fowkes. The alleged incident was fleetingly addressed in cross-examination. It was put to him, and he denied, that he amongst others had jostled Fowkes [665]; though he said that there was a bit of pushing and shoving going on from both sides.

1379 In my opinion it is very clear that Fowkes has not made out his claim of an assault by Wilson - the only claim ever particularised. Indeed, not even that claim as particularised was supported by Fowkes' evidence.

1380 Not only did Fowkes' evidence depart from the claim against Wilson as particularised, his identification of Wilson was unreliable. Whilst Wilson's evidence giving reason why he was not in the vicinity at the time was not free of controversy, I consider on balance that it should be accepted; but even if I did not accept it, I would not conclude that Fowkes had made out his claim against Wilson.

1381 Notwithstanding that they were never the subject of a particularised claim, I should address the allegations which Fowkes made in his evidence against Molloy, Nocera and McGee. Having regard to the content of the statement of claim, and the plaintiffs' further particulars, it appears that Fowkes' evidence came as a bolt from the blue. Save in one respect, and by one witness - a witness whose reliability generally was not good - that evidence was unsupported. It was disputed, directly - or in Nocera's case indirectly - by the persons to whom it referred. So far as Molloy is concerned, the matter was touched upon in cross-examination in a way which did not repeat the allegation made by Fowkes and supported by Kennerson.

1382 I consider that the circumstances require Fowkes' evidence concerning Molloy, Nocera and McGee [666] to be rejected, rather than that the matter be dealt with as a technical problem of pleading and particularisation. It is impossible to have any confidence in the reliability of that evidence. That is so even taking into consideration the possibility that Fowkes had by his behaviour during SSP week so antagonised the loggers that an available opportunity was taken to administer what they might have perceived was fair retribution.

1383 In the event, the claim made by Fowkes by paragraph 25 of the statement of claim fails. Further, the evidence given in support of that claim does not stand in proof of logger violence during SSP week; and thus as advancing a conclusion that had protesters sought to leave the area of SSP intersection during that week they were likely to have been physically impeded from doing so, or subjected to violence.

1384 Particular (mm) to paragraph 5 alleges that during the thunderstorm Molloy boasted that he was a hunter and taunted the plaintiffs to go out through the bush. So far as I can see, no evidence was adduced to support that allegation. The same may be said of the further allegation made by particular (mm) that "the defendants also made reference to an incident in which Adrian Whitehead... had been seriously assaulted and injured by [Arbuthnot]". These are not allegations of violent conduct. They are, however, two more allegations made by the plaintiffs in connection with the Thursday afternoon incident on SSP Track in respect of which no evidence was adduced.

1385 Particular (nn) to paragraph 5 and paragraph 27 of the statement of claim allege an assault and battery by Ms Calvert on Ms Gross. The broad allegation is that Ms Calvert grabbed Ms Gross' arm, this preventing her returning to the protesters' camp.

1386 Ms Gross gave evidence that her father gave her a sleeping bag before he departed. She put it under her jumper, Ms Calvert grabbed her arm and asked her what was under her jumper. She showed Ms Calvert the sleeping bag. Her father spoke to Ms Calvert. She was allowed to take the sleeping bag back to her camp [667].

1387 Ms Calvert denied that any such incident occurred. She gave evidence that she or someone else dropped a sleeping bag off at the protesters' camp for Ms Gross. She agreed that Bill Gross could have delivered a sleeping bag direct to his daughter, but said that she had offered to do so. She denied being upset that something had been handed across to Ms Gross [668].

1388 Bill Gross gave no evidence, I think, of an incident such as his daughter recounted [669].

1389 There are a number of uncertainties about this matter. They tend in opposite directions. First, it might be said to be improbable that Ms Gross would invent an account unnecessarily involving her father. Second, it seems unlikely that Ms Gross would have attempted to hide a sleeping bag up her jumper. It would have suddenly and radically altered her shape; quite apart from the fact that, on her account, she was by then wet from being out in the storm. Third, it seems strange that Bill Gross would not have recalled an incident, if it had occurred, in which on his daughter's account he had intervened after there had been something of an altercation between she and Ms Calvert. Fourth, it might be thought unlikely that Ms Calvert of all the defendants would lay hands on a protester. Fifth, it might be thought unlikely that Ms Calvert would offer to act as an intermediary between father and daughter.

1390 There are a number of cogent reasons why it should be concluded that Ms Gross did not make out her claim; but in the end the matter depends upon the contrary accounts of two witnesses, and in this instance I am persuaded by the evidence of Ms Gross that a fleeting, but deliberate contact was made by Ms Calvert. That conclusion does not involve acceptance, I add, of the detail of Ms Gross' account.

1391 Ms Gross is entitled to an award of damages. I consider that the award should be made against Ms Calvert alone, for the protocol which she laid down, and which was to be obeyed by herself as well as all the defendants and other loggers, precluded physical contact; and so what she did should not be characterised as conduct in concert with the other defendants. As to amount, I am satisfied that the contact was fleeting and essentially inconsequential. Making due allowance for the personal indignity inherent in a battery, I think that the appropriate quantum of damages is $1,000.

As to I:

1392 McFadzean gave evidence that on the Wednesday night his van was pushed and rocked. This happened only once or twice, not for long. He also heard stones hitting its side. Ms Dawson and Ms Epstein were with him in the van. The three of them were extremely frightened and distressed. The next day, he saw that one side of his van had a number of small dints in it. He obtained a quote for repairs, but did not have his vehicle repaired. [670]

1393 An attempt was made, but not pursued, to put the quote into evidence.

1394 McFadzean's credit was attacked in many ways in cross-examination; but he was not cross-examined to say that his evidence about the particular matter was false.

1395 Mr Dawson and Ms Epstein each gave evidence of being in McFadzean's van on the Wednesday night; in Ms Epstein's case, after she had spent an earlier period in Greig's vehicle. Neither of them gave any account of an incident such as was recounted by McFadzean. [671]

1396 Ms Garrett gave evidence that Donato's van, in which she was present on the Wednesday night, was rocked from side to side; and that she could hear it being pounded on its right-hand side. She said that she spoke to a policeman that night; but her account of what she said made no mention of the matters just mentioned. [672] She was not cross-examined about this evidence.

1397 Greig gave evidence of "rocks" being thrown at the protesters' tents on the Monday and Wednesday nights, [673] Ms Epstein of stones being thrown into the camp on the Monday night, [674] and Ms Garrett of rocks being thrown against the side of Donato's van on the Tuesday night.

1398 Photographs put in evidence show that Donato's van was parked, throughout the week, adjacent to and west of the protesters' main tarpaulin, its right side facing onto SRR, that at pertinent times Greig's vehicle was parked on SSP Track close to the banner, facing west, and that McFadzean's van was parked on SSP Track to the east of Greig's vehicle and facing east - that is, away from SRR. [675]

1399 Notwithstanding the non-contributory evidence given by Ms Dawson and Ms Epstein, McFadzean has satisfied me, on balance, that things thrown from the loggers' side of the banner struck his van during the night of 27-28 January. The likelihood is that the things thrown were small stones picked up from the surface of SRR; and that the person or persons throwing the stones perceived such activity to be a means of inconveniencing the protesters.

1400 I have reached the conclusion that things were thrown, striking McFadzean's van, having regard not only to the evidence of McFadzean, but also to the evidence of Ms Garrett; and to a lesser extent the evidence of Greig. The evidence, in all, suggested a pattern of like activity.

1401 McFadzean has not satisfied me, on the other hand, that many missiles struck his van, or that his vehicle was rocked, or that he was put in fear by what occurred, let alone fear or apprehension of impending physical contact. It is just possible that Ms Dawson and Ms Epstein may not have paid particular attention to a few stones striking the vehicle, but I cannot believe that they would have remained oblivious to a series of stones striking the van sufficient to put dints in it. Further, whilst it is possible to believe that Donato's van, parked where it was, may have been rocked, that seems highly unlikely in the case of McFadzean's van, it being parked where it was. Again, McFadzean's evidence that he, Ms Dawson and Ms Epstein were extremely frightened and distressed by the events which he described [676] was not supported by the evidence of the two women; and having regard to what I consider was the nature and scale of the incident, McFadzean has not satisfied me that he had any such reaction - although if he did, it could not have been a fear or apprehension of impending physical contact.

1402 In the event, so much of the alleged incident as I conclude in fact occurred shows that the loggers or their supporters sought to annoy or inconvenience the protesters otherwise than by use of chainsaws and beating on makeshift drums. I do not consider, however, that this conduct bespeaks, or could sensibly have been taken to bespeak, a probability of violence had the protesters sought to leave SSP intersection - particularly by passing along SRR.

1403 Finally, the conclusions which I have reached, keeping in mind also the fact that the claim for property damage was in substance not pursued, means that the claims raised by paragraph 29-33 of the statement of claim have not been made out.

As to J:

1404 Three plaintiffs gave evidence of encountering fishing line north of the intersection and in proximity to SRR. McFadzean said that he encountered a tripwire, which he thought was made of fishing line, on 26 January [677]. Dwan gave evidence of noting fishing line strung between the trees at knee and chest height on the same day. [678] Greig gave evidence that on 27 January there was fishing wire throughout the bush, in a lattice work to head height. He walked into it and heard a bell ringing. [679]

1405 Ms Calvert conceded an awareness that fishing line had been put in the bush, and that it would have had the effect of alerting loggers to people going out, as well as people coming in. [680] Nemet gave evidence of hearing about fishing line, it being attached to a couple of cans hanging in a sapling. In cross-examination he agreed that he knew that it would give loggers a warning if a greenie tried to go out through the bush. [681]

1406 Each of Molloy, Nocera, Flannigan, Chris Wheeler, Brian Wheeler, McGee and Sheppard said one or more of the following: that he did not see fishing line, did not know that fishing line had been put in the bush, saw no cans hanging in a sapling, or heard no mention of fishing line in discussions during SSP week. [682]

1407 It is clear from the evidence that fishing line was set up in the bush north of SSP Track and in proximity to SRR at some stage and for some period during SSP week. The accounts given by the three plaintiffs as to its scope were quite variant. I am confident that Greig's account, at least, very much exaggerated the true situation. All that can safely be concluded is that some fishing line was set up and that it was attached to cans hanging in a sapling.

1408 It can next be concluded that one reason for the fishing line being set up was to warn the loggers of the presence of protesters in the bush close to SRR. One reason for a protester being in the bush in that vicinity was that he or she was attempting to leave. But the evidence showed that protesters went into the bush to the north of the intersection and close to SRR for other reasons also.

1409 Because one of the things which the fishing line might do was to warn the loggers of an attempt by a protester to leave the area of the intersection by a route close to SRR, it should be accepted that, potentially, it had a locally confining impact. I say "potentially" because according to some evidence it could be seen and avoided during daylight hours. Moreover, whether the loggers would physically impede a protester from leaving had they become aware that the person was attempting to do so was never tested. Further again, its impact was potential because, so far as the evidence disclosed the situation, few of the protesters knew of its existence. I say "locally confining impact" because the evidence shows that the fishing line could not have extended far to the east. That is apparent from the circumstances that, without fishing line being encountered:

v Greig, Fowkes and their companions made their way to Turton Track on 26 January.

v Kennerson and Donato trekked north and back on 26 January.

v Kennerson, Donato and McFadzean trekked north later on 26 January.

v Inferentially, Donato returned through the bush for a second time that day.

v As it appears, protesters often enough entered the bush to the north of the intersection during SSP week.

1410 Counsel for the plaintiffs submitted that denials by some defendants that they knew of the presence of fishing line were false, and should be understood to reflect the unwillingness of those defendants to disclose their awareness of an imprisoning device.

1411 I think it is likely that one or more of the defendants who denied relevant knowledge gave untruthful evidence in that respect. I am sure that Brian Wheeler should not be included in the category of persons who made false denials. It is difficult to be confident of the true position with respect to the other witnesses individually. For I consider it likely that the fishing line assumed a much greater prominence in the course of the trial than it ever had during SSP week. For all that it was there, nothing came of it. Insofar as any defendant did give untruthful evidence, I agree with counsel's submission that such evidence reflected a wish to disavow knowledge of a device which could be said to have an imprisoning impact. The extent of any such impact in fact is, of course, another matter.

1412 In my opinion, in all, the presence of fishing line, the few instances in which protesters encountered it, and what happened on their account when they did so, do not lead and should not sensibly have led to a conclusion that protesters would have been subjected to violence or physical restraint had they attempted to leave the area along SRR.

As to K:

1413 It is not in doubt that Donato entered the bush to the north of SSP Track on several occasions during SSP week. The days upon which he did so remain uncertain [683].

1414 It is clear that on several occasions, whilst in the bush, Donato climbed a tree; and that he made what were variably described as screams for help, calls for help, whooping noises, a "South Park" voice, yells, screams and curses, and screeches.

1415 From the plaintiffs' standpoint, the high-water mark of the evidence pertaining to Donato was that given by Fowkes, Ms Epstein and Kennerson.

1416 Fowkes gave evidence that on the Monday afternoon Donato walked into the bush and emerged with cuts all over his chest and stomach; and that on the Wednesday Donato climbed a tree and called for help. On the latter occasion, the witness entered the bush and saw someone chopping down the tree, and other loggers throwing rocks at Donato.

1417 Ms Epstein gave evidence that on the Monday afternoon she heard Donato scream help, that [the loggers] had got [a female protester] and would not let her go. She walked into the bush, with a camera. She saw Ms Douglas and Donato at the foot of a tree with five to seven loggers around them, making snide remarks. The situation became defused and she left. She did not take a photograph.

1418 Kennerson said that on the Tuesday he had created a diversion, making hooting noises. Donato was with him. They were chased out of the bush by loggers, who told them they would be killed.

1419 Several defendants gave evidence of going into the bush in response to hearing noises of one kind or another, and of seeing Donato in a tree [684]. On their accounts nothing untoward occurred.

1420 I unequivocally reject Fowkes' evidence pertaining to Donato. Concerning the first aspect of that evidence, Fowkes alone claimed to have seen the aftermath of an incident in which, inferentially, loggers caused Donato injury - whether directly or indirectly. Ms Garrett, particularly, gave no corroborative evidence. Moreover, Fowkes' evidence about what Donato was wearing on the Monday, which bore upon what he said he saw, was notable for its variation.

1421 As to the alleged Wednesday incident, also, there was otherwise silence from the plaintiffs' side. Had there been some attempt to cut down a tree in which Donato was then perched, I should have expected him to have said something to Ms Garrett about it; and, consistently with a ruling about admissibility of such evidence given early in the trial, the plaintiffs' side could have been expected to adduce pertinent evidence from Ms Garrett. There was no such evidence. Neither was there evidence from any other protester that Donato had reported such an incident. Add to the mix my firm view that Fowkes was not a witness of credit, and the fact that Donato did not give evidence, and rejection of Fowkes' account is required.

1422 Ms Epstein's evidence may, for purposes of argument, be accepted - notwithstanding that, inexplicably, she took no photograph of what she said she saw. But what of it? She observed no act of violence by any logger, nor anything to corroborate the substance of Donato's scream. What she saw was loggers standing around, making uncomplimentary remarks. Nothing came of it.

1423 Kennerson's account attributed hooting noises to himself, not Donato. Assume it were so. On his evidence, he and Donato were chased from the bush with accompanying threats to kill. That evidence could not be taken seriously; or at least it seems that neither Kennerson nor Donato so took it. For thereafter they re-entered the bush and established a route northwards and then west to SRR. Still later the two of them escorted McFadzean along that route; and still later again - as a matter of inference - Donato returned alone through the bush to the protesters' camp.

1424 Having regard to Donato's provocative conduct on the Sunday - climbing onto Chris Wheeler's machine, and later his ute - and to erratic behaviour in which he engaged during SSP week, I consider it likely that on several occasions that week he entered the bush and made noises with a view of annoying the loggers. Nothing suggests that he made any attempt to leave through the bush on those occasions, or that he was restrained by loggers from doing so. Nor, in light of my conclusion about Fowkes' evidence, should it be concluded that he was subjected to logger violence.

1425 In all, the evidence concerning Donato was inconsequential. It could not sensibly stand as evidence of restraining or violent conduct by loggers towards protesters.

1426 Further as to K, I should mention evidence given by Kennerson concerning a star picket. The witness said that on the Tuesday night he "heard" a large star picket right beside his head. He was at the time sleeping on the perimeter of the tarpaulin [685]. He heard a loud thud, went outside, and saw loggers attempting to remove tent pegs. He said that a star picket had gone through the tarpaulin into the tent, landing, he estimated, 30 cms from where he had been sleeping. He identified one of the loggers as Sheppard, and another as a man who threw three punches at him [686].

1427 Sheppard denied being involved in such an incident [687].

1428 If such an incident had occurred, it would surely have been a matter both of observation - that is, of the star picket in situ - and discussion. Evidence could have been led by the plaintiffs' side of any such observation or discussion. The ubiquitous camera could have been brought into play. No such evidence was led, nor photograph produced.

1429 Despite the detail of Kennerson's account, I am not prepared to accept its reliability. The absence of corroborative evidence is striking. There were, moreover, other instances in which Kennerson gave an account of events with apparent certainty, and with some elaboration, which accounts could not withstand analysis. Again, it is probable that Sheppard was not in the vicinity of SSP intersection on the Tuesday night.

1430 Even if I was to accept Kennerson's evidence about the star picket incident, it would lead nowhere. No plaintiff gave evidence of knowing about the alleged incident, so it could not bear upon any plaintiffs' fear of logger violence. Further, I doubt that such conduct, having regard to Ms Calvert's no violence edict, and to the range of logger conduct which I have considered, could fall within the purview of conduct in concert.

Threats of violence?

1431 Plaintiffs gave evidence of having been put in fear by a variety of alleged logger conduct which both preceded and occurred during SSP week. Often they explained not leaving through the bush by reference to fear engendered by particular conduct. Frequently the particular conduct to which the witness referred was not exhaustive of the conduct which, on the witness's account, caused the witness to be fearful.

1432 Speaking generally, plaintiffs connected their alleged fear with circumstances including one or more of the following:

s fear of logger violence by reason of things done or allegedly done by loggers to protesters before SSP week;

s restraining conduct, or violence, by loggers towards protesters during SSP week;

s threats of violence, actual or implicit, made by loggers to protesters during SSP week;

s belief that there were loggers' patrols in the bush, and on Turton Track.

In this section of my Reasons I focus upon evidence pertaining to the first and third of those categories. I have already dealt with allegations of logger violence and later deal with the allegations of logger patrols.

Incidents before SSP week

1433 The alleged logger violence prior to SSP week centred on, but was not confined, to the attacks reported or observed upon Whitehead, Reece and the two Amys.

1434 Many of the plaintiffs claimed to have learned about the Whitehead incident at some stage: Greig during SSP week, [688] Dwan in December 1998, [689] Ms Lees from Ms Nelson in late 1998, [690] McFadzean before travelling to the Otways in January 1999, Bowles from Arbuthnot on 28 January, [691] Ms Dawson from seeing his photograph at ConFest, [692] Fowkes from seeing a flyer at ConFest, [693] and Ms Epstein from seeing a poster at ConFest [694].

1435 Ms Epstein gave evidence of witnessing an attack on Reece. [695] Dwan [696] and Ms Lees [697] gave evidence of hearing about it.

1436 Dwan gave evidence of learning of an attack upon the two Amys [698]. So did McFadzean [699] and Ms Epstein [700].

1437 In addition to the evidence concerning those attacks, whether reported or observed, McFadzean gave the evidence to which I have earlier referred explaining why he went to the Otways on 24 January; and there were the events which occurred at SSP coupe and at the gate to SSP coupe that day.

1438 I mention also Ms Dawson's evidence of a threat made by Flannigan to kill her in the Beech Forest telephone box incident, and Dwan's evidence of a threat by Nocera to kill him made at Number 9 Ridge in February 1998. I deal elsewhere in these Reasons with the evidence about those two incidents. They involve, on the evidence of Ms Dawson and Dwan, threats of violence rather than actual violence.

1439 In my opinion the conduct of the protesters leading up to 25 January and on the morning of 25 January stands opposed to a conclusion that any of them in truth had a fear of logger violence generated by any of the incidents to which I have referred. None of them showed the slightest sign of being intimidated. I have referred in detail to their individual activity leading up to the arrival of the loggers' party on 25 January. I note, moreover, that Arbuthnot was only present at SSP for a short period - on the afternoon of 28 January; and that only Ms Epstein gave evidence of being told of his pending arrival [701].

1440 A number of the plaintiffs, it may be added, apparently never learned of one or more of these allegedly troubling incidents; and that was despite being in close proximity to the other protesters, in what were said to be circumstances generating fear, over a period of days.

Assaults on Dwan?

1441 Particular (v) to paragraph 5 of the statement of claim alleges that on 26 January Nocera made strong verbal threats to Dwan, which caused the latter to fear for his safety.

1442 Particular (w) alleges that shortly thereafter, when Dwan walked into the bush, he came upon three men including Nocera and Flannigan. The latter made strong verbal threats, causing Dwan to return to the plaintiffs' camp.

1443 Paragraph 17 of the statement of claim specifically pleads, as an assault, the subject-matter of particular (v) to paragraph 5. It pleads that the incident occurred "at the campsite", that Nocera threatened Dwan with personal violence, that Dwan was caused to fear for his safety and that he would be subjected to imminent harmful or offensive conduct.

1444 Paragraph 19 of the statement of claim specifically pleads, as an assault, the subject matter of particular (w) to paragraph 5. Paragraph 19 pleads, however, that this incident occurred "at the campsite". Again the allegation is of a threat of personal violence which caused Dwan to fear, inter alia, that he would be subjected to "further imminent harmful or offensive conduct."

1445 Dwan claimed to be in fear of loggers during SSP week. That fear was said to be one element in his alleged imprisonment. Resolution of the claims now under consideration is thus not only relevant to the claims themselves, but also the question whether Dwan was in fear of loggers as he alleged.

1446 Dwan's evidence in chief was as follows:

[348]

1450 The differences in the remarks said by Dwan to have been made at an encounter in the intersection are stark. The relevant evidence in chief and in cross-examination was given only days apart. According to the evidence in chief only one threat personal to Dwan was made on that occasion. According to the evidence in cross-examination the only threats made were personal to Dwan. Moreover, in the second version the witness attributed to Flannigan what he had earlier said was a remark made at an encounter in the bush.

1451 Dwan was cross-examined about his evidence of a threat made by Nocera at Number 9 Ridge. He gave an account of what had occurred which I consider was evasive. It became clear at least that the incident had occurred in February 1998 - that is, some 11 months before the alleged threats the subject of present consideration.

1452 In further cross-examination Dwan referred again to an incident in the bush. On that occasion, as I understand it, he reverted to saying that Flannigan had made a threat, personal to him, at an encounter in the bush; an account compatible, perhaps, with the allegation made by particular (w) to paragraph 5 of the statement of claim but not so readily reconcilable with the allegation made by paragraph 19, and its reference to "the campsite" - a term defined in paragraph 5.

1453 I note next Dwan's evidence that since 29 January, when visiting Colac, he goes in disguise or in another person's vehicle. His disguise, he said, is a hat and sunglasses. As I understand his evidence, he did not travel to Colac, undisguised, in the period between February 1998 and January 1999, that is, the period which began when Nocera allegedly threatened to kill him if he saw him in the main street of Colac, and which ended with the threats allegedly made by Nocera and Flannigan in the vicinity of SSP intersection.

1454 Dwan did not plainly concede in his evidence that by the time the alleged threats were made there had been much bad language hurled by the opposing sides one at the other. Whilst not all plaintiffs nor all defendants participated, however, there can be no doubt that by the time when the incidents alleged by Dwan occurred - apparently on 26 January - crude abuse was being sporadically engaged in by some of those on either side.

1455 Nocera [706] and Flannigan [707] denied speaking to, let alone threatening, Dwan. Nocera said that he called the protesters "feral cunts", amongst other things [708]; but that "bleeding from the eyes" was not an expression he uses [709].

1456 I have found it somewhat difficult to resolve this issue. Allegations such as Dwan makes are easily made and as easily denied. That is so even if they are made or denied in evidence - notwithstanding the sanction of the oath.

1457 Complicating what I have thus far said is my conclusion that Dwan was a most unreliable witness; and that Nocera and Flannigan were also in some respects unreliable witnesses. Instances where I have rejected evidence given by one or other of them in circumstances which bear upon credibility are to be found elsewhere in these Reasons.

1458 It is clear enough, I think, that each of Nocera and Flannigan had a low opinion of forest protesters as at January 1999. Moreover, in January 1998 Dwan had been involved to some extent in the incident at Number 9 ridge. Nocera gave evidence with passion, and credibly, about that incident. It was an incident which might well have caused him to think particularly badly of Dwan, and for him to have made, though he denied it, a threat at the time. It might be argued that it set the stage for his making a threat against Dwan in January 1999; and that Flannigan, for his own reasons, or as a spin-off, joined in. Further, it might be observed that Nocera admitted using one of the words attributed to him by Dwan to plaintiffs generally in the course of the week.

1459 On the other hand, Dwan's evidence was not relevantly consistent. Moreover, on his own account he already knew each of Nocera and Flannigan, and that unfavourably. The present allegations, unsupported by the evidence of any other witness, might be said to be his way of getting back at those men, a way that could not be tested save by reference to the evidence of the alleged participants.

1460 Also pertinent, I think, to resolution of the claims now under consideration is the fact that, as going to his alleged belief that loggers might do him harm in the period 25-29 January, and thus as going to a fear which was a constituent part of his alleged imprisonment, Dwan gave expansive evidence of grave misconduct by loggers on prior occasions. I am well satisfied that some of the allegations he raised were much overstated [710] or else untestable creations of his imagination [711]. I am also well satisfied, as I said earlier, that in January 1999 at Riley's Ridge he mischievously reported that an ambulance was required for an injured protester. Further again, Dwan had some role in the claim which was made on 28 January that Ms Jackson had run out of required (antidepressant) medication - medication which she denied she was taking at the time.

1461 In all the circumstances which I have described I am not able to find, on balance of probabilities, that either of Nocera or Flannigan said any of the things variously attributed to them by Dwan. I should add three things: first, had I been persuaded that any remark had been made, it would have been that a remark had been made pertaining to the plaintiffs as a group. Second, I would reject in any event Dwan's evidence that the alleged remarks put him in fear or apprehension of impending physical harm, or indeed physical harm at all. If any remarks personal to Dwan had been made, it would have happened in the context of multiple exchanges of abuse between plaintiffs and defendants. Further, Dwan claimed that Nocera had made a frank threat to kill him at Number 9 Ridge in February 1998. He did not clearly say that he was put in fear by that threat, though perhaps he intended to say so. If that was his intent, I did not understood his evidence to be, in any event, that thereafter he only travelled to Colac by another person's car or in such disguise as might be effected by wearing a hat and sunglasses [712]. On the other hand, he claimed that he was so put in fear by the events of 25-29 January 1999, that thereafter he has only visited Colac in such a fashion. In all, his evidence of having been put in fear on any occasion, and his response thereto, was thoroughly unconvincing. Third, the gist of Dwan's evidence was that the alleged assaults were by bare words.

1462 The claims raised by paragraphs 17-20 of the statement of claim fail.

Other alleged threats of violence during SSP week

1463 In addition to remarks attributed to Molloy and Wayne McGee which I consider later in these Reasons, some protesters gave evidence that loggers made threats to kill.

1464 Ms Jackson gave evidence that loggers, whilst revving chainsaws, especially on the Wednesday night, were saying things such as

[352]

1468 I have earlier addressed Greig's evidence about remarks which he attributed to Nocera and/or Pearce. I have concluded that it is unlikely that either man admitted damaging Greig's car. It is unlikely, in that event, that either of them made the remarks about killing him of which he gave evidence.

1469 I have earlier concluded that what Kennerson said about logger patrols in the bush on 26 January was a late and non-credible flourish to his evidence. It follows that I reject his evidence that threats to kill were made at that time.

1470 In the event, the evidence suggests that threats to kill, made by an unidentified logger or loggers [719] on various occasions on several nights during SSP week, were heard by some of the protesters. It is another matter whether any such remark engendered fear in all the circumstances which pertained. Insofar as any of the protesters gave evidence of being put in fear by those threats, I cannot accept that it was the case; just as I cannot accept that remarks made by Molloy and Wayne McGee caused any of the plaintiffs to be put in fear.

1471 To my mind, the threats presently under consideration, and the remarks made by Molloy and McGee, when viewed in context, could not have been taken to be serious expressions of intent. Leaving aside the fact that no conduct consonant with the threats/remarks occurred, the context was one in which outlandish abuse was offered by some members of the opposing groups throughout the week. One might as well conclude, if the threats now under consideration were to be taken seriously - likewise the remarks made by Molloy and Wayne McGee - that Ms Dawson's expressed intention to kill Chris Wheeler [720], made on 24 January, was a serious statement of intent.

1472 Furthermore, whilst it is the case that the context was one in which loggers engaged in conduct intended to harass or annoy the protesters, and whilst the SSP week incident occurred in the bush and not in a town or city, I cannot accept that those circumstances so dominated the context in which threats or remarks were made as could have caused them to be taken seriously. That is the more so when other contextual circumstances are taken into account - matters such as the presence of the police, contact with and involvement of Oren representatives, and attendance of press representatives at SSP intersection on two days at least during the week.

1473 All in all, I regard such evidence as there was that protesters were put in fear by the threats now under discussion, or by the remarks made by Molloy and Wayne McGee (of which more later) as unreliable and opportunistic.

Patrols in the bush?

1474 A number of the protesters gave evidence of having an understanding or belief that loggers were patrolling the bush during SSP week. Sometimes this understanding or belief was said to be founded on alleged personal experience, at other times on things allegedly reported or said. The plaintiffs' case at trial's end, as I perceive it, was that there were in fact patrols through the bush, or else that protesters were led to belief that such was the situation. In either event, it provided reason why leaving through the bush was not a reasonable means of egress.

1475 I should refer to the pertinent evidence, beginning with evidence of alleged personal experience. I have already referred to and analysed a good deal of that evidence. I note it without further comment. Thus: Greig's evidence about alleged con-frontations with loggers on the afternoon of 25 January, the night of 25/26 January, and the morning of 26 January; Kennerson's evidence of his return trek through the bush on 26 January; the evidence of Fowkes and Ms Gross that they heard noises in the bush in the course of the return journey on 26 January; evidence of observations made of Jaskierniak, Ms Douglas and Donato being in and exiting from the bush, particularly but not only on 25 January; and Dwan's evidence of threats of violence made to him whilst in the bush.

1476 Beyond that evidence, Bill Gross gave evidence of seeing tracks in the bush during his trek on 28 January [721], Fowkes boldly asserted that on 26 January he did not think he would "get out" because the loggers had patrols in the bush [722], Ms Lees referred to hearing rustling noises in the bush to the north of SSP whilst she was going to the toilet [723], Ms Epstein gave evidence of hearing loud noises in the bush adjacent to the protesters' camp on the Monday night [724], and Dwan gave evidence that loggers wearing fluoro vests were quite visible and appeared to be patrolling on the Tuesday [725].

1477 I turn to protesters' evidence that it was reported or intimated to them that there were loggers' patrols in the bush.

1478 First, such a report was apparently given by Greig to Ms Lees and Ms Dawson following upon his return to the protesters' camp on 26 January; and by Fowkes to Ms Lees on that occasion.

1479 Second, Greig gave evidence that the protesters had been told that there were loggers patrolling the bush and the roads. It was, he said, common knowledge, discussed amongst timber workers and environmentalists [726].

1480 Third, a good deal was made of a remark and gesture allegedly made by Molloy. A number of versions were given of what Molloy said, and when. Compare the evidence of Greig [727], Ms Gross [728], Bowles [729], Fowkes [730] and Ms Colson [731].

1481 Fourth, Ms Garrett gave evidence that Wayne McGee asked her what she was doing at SSP. She said that she had no choice. He then said:

[354]

He said this in a very serious manner.

1482 Thus far I have referred to the protesters' evidence about patrols in the bush. With respect to alleged incidents not yet analysed, I note that Ms Calvert and other defendants denied that instructions were given for there to be patrols in the bush, or that there was discussion about such a thing [733], and denied that there were patrols [734]. It is, on the other hand, surely the fact that loggers entered the bush north of SSP Track on occasions during SSP week. Chris Wheeler did so on his way to and from the coupe. Nocera probably went to and from the coupe by that route. Loggers entered the bush when Donato climbed a tree on several occasions. Molloy walked through the bush to Turton Track and back on 27 January. Probably, also, loggers entered the bush at times in order to urinate, rather than walk north to the portable toilet. The circumstances just mentioned do not necessarily exhaust the situations in which loggers entered the bush that week, but in my opinion put a reasonable perspective upon the matter.

1483 I should add this: there was evidence that, essentially to forestall unjustified protester allegations, loggers were told to keep out of the bush during SSP week; and that loggers, when they went into the bush, generally went accompanied. I think it is likely that loggers were told such a thing, and that such a precaution was generally taken. Ms Calvert and the loggers, I consider, were deeply suspicious of what they believed was the capacity of protesters to twist the facts of a situation.

1484 Notwithstanding the circumstance that some loggers entered the bush at some times during SSP week, it is the fact that four people made their way from SSP Track to Turton Track on 26 January, and that three people on that day and four people on 28 January made the journey from Turton Track to SSP Track. So also, Kennerson trekked north twice on 26 January, and once returned; whilst Donato trekked north and south twice that day, and McFadzean trekked north once. Again, on 27 January Ms Lees, Ms Dawson and Kennerson walked east along SSP Track and then through the coupe to a point where they reached, apparently, the East Branch of the Barham River; and then returned. It is next the fact that all of these journeys were made either entirely or in part through the bush; and that on not one of them was any loggers' patrol in fact encountered.

1485 It might be contended that there were patrols, and that the protesters simply managed to hide successfully; or that the area was so large that the patrols missed their mark. But as the plaintiffs would have it, these were patrols by experienced bushmen. Further, movement by protesters and others through the bush occurred too often, and occupied too much time, for non-contact with loggers to be accounted mere chance. To my mind the evidence is overwhelming that there were no organised loggers' patrols during SSP week. The most that can be said is that there is some evidence of incidents involving Jaskierniak and Ms Douglas on 25 January, those incidents taking place in the bush close by SSP Track; and some evidence of several incidents in that vicinity involving Donato during the week. In substance, I consider, this was another element of the plaintiffs' case having about it the character of the emperor's new clothes.

1486 What, then, of evidence by protesters that it was reported or intimated to them that there were loggers' patrols in the bush?

1487 There was, in my view, no sound basis for Greig telling Ms Lees and Ms Dawson on his return on 26 January that there were loggers' patrols, and for Fowkes saying the same thing to Ms Lees. It is quite consistent with my evaluation of Greig and Fowkes, however, that they should have said such a thing.

1488 Next, whilst Greig gave evidence that it was common knowledge, protesters were told, that there were patrols in the bush and on the roads, there was in context of the overall volume of the evidence little other protester evidence to that effect. A remark was attributed to Sheppard, in the course of cross-examination of Nocera [735]; and there was a little evidence of remarks made by unspecified loggers, remarks implying or capable of implying the presence of loggers in the bush. What was allegedly said, assuming that it was said, does not sit readily with significant events that occurred during SSP week.

1489 I turn to the Molloy incident. Molloy gave evidence that on the Wednesday, Greig having abused him, he told Greig that he was sick of the latter's "bullshit", that he knew protesters had been getting in and out, not that it worried him, and that if he wanted to, he could track Greig down like a pig. He denied saying words to the effect that he would do what he did to pigs to any protester who attempted to leave through the bush, and denied that he drew his finger across his throat. He did not kill pigs, he said, by slitting their throats, but rather by sticking them through the heart [736].

1490 Greig was not cross-examined to suggest that he had abused Molloy as a precursor to Molloy making whatever remark he did make about tracking, and pigs. Rather, Fowkes was cross-examined to the general effect of the language attributed by Molloy to Greig [737]. The evidence is clear that Fowkes was at the banner, in the vicinity of Greig and Molloy, when Molloy made his remark. Fowkes denied, I add, that he abused Molloy in the way that was put to him.

1491 Quite apart from the forensic point made by plaintiffs' counsel - that is, concerning cross-examination of Greig - I consider it unlikely that Greig said to Molloy what the latter attributed to him. It was not Greig's language. It is entirely possible, however, that such language would have been used by Fowkes. It is probable, I consider, that some remark along the lines suggested in cross-examination of Fowkes was made by a protester - most likely Fowkes - and that Molloy responded. On any view Molloy said something to the effect that he had the ability to track a protester down in the bush. He may have melodramatically drawn his finger across his throat - although as I have said earlier he did not impress me as being a very imaginative person.

1492 Accepting that Molloy made a remark which at least involved reference to tracking, and to hunting pigs, such remark said nothing about loggers' patrols. It was, on its face, a statement of personal capacity to act.

1493 Beyond that, the idea that any protester would truly have been put in grave fear by what Molloy said or did is really far-fetched. I have already said something about why that is so. Fowkes, however, gave evidence that, hearing what Molloy said, he felt "very afraid" [738]. Having regard to the witness's conduct towards loggers before and after this incident, I regard that evidence as pure humbug. Ms Colson, to whom Fowkes gave a version of what Molloy had allegedly said, gave evidence which was, I think, somewhat closer to reality. Whilst she claimed to have been scared, she added:

[356]

1494 Further to what I have already said about the likely impact of Molloy's remark, acceptance that it caused protesters to be afraid would involve acceptance of the probability that protesters perceived a true, violent intent in one fragment of a pattern of abuse, some implying violence, engaged in by loggers and protesters alike during SSP week. To so conclude goes against common sense - the more so when, according to the evidence of protesters, Molloy at times adopted a conciliatory role; and when, having a ready opportunity of acting violently, he did not do (in that connection I refer to his meeting with McFadzean on SRR on 26 January, only one other protester being then present).

1495 I next refer to Ms Garrett's evidence of a remark attributed by her to Wayne McGee, a remark which he denied making [740]. If made, and if not nonsensical, the remark would permit a belief that there were loggers' patrols in the bush. But there is nothing to suggest that any plaintiff heard, or was informed about, the remarks. So no question arises, assuming the remark was made, of any relevant belief being engendered.

1496 Beyond that, Ms Garrett, speaking generally, was not an unreliable witness. Neither, speaking generally, was Wayne McGee. Indeed, I have regarded him as a reliable witness when assessing the evidence pertaining to a number of contentious issues. Against that background, it is not easy to resolve the question whether Wayne McGee made the disputed remark. The context described by Ms Garrett suggests otherwise. On her account, she having said in response to his question why she was there that she had no option, he said that there would be boys in the bush who would slit her throat. Such a remark, one would think, would have been made, if at all, had she told him - which on her account she did not - that she intended to leave through the bush. Moreover, Ms Garrett said that she did not report the alleged remark to the police; and did not know why she had not done so [741].

1497 For all the oddities of the situation, however, and despite Wayne McGee's denial, I am inclined to think that he did make some remark compatible with Ms Garrett's evidence. I cannot accept, however, given the context which she described, that it could have been perceived to be a statement of the truth of the situation, or such as could engender fear. Certainly I do not conclude that it should stand as an admission that there were loggers in the bush ready to slit the throats of departing protesters.

1498 I should finally refer to a remark made by Molloy to his son on the Monday afternoon. The young boy having said to his father that the protesters were "getting through the bush up here, Dad", he replied that "They'll get rounded up". [742] The witness described his remark as a "bit of fun". He denied that the protesters were in fact rounded up from the Monday onwards by loggers' patrols.

1499 There was no evidence that any protester heard what Molloy said; so there is no question of it generating a belief that there were or would be loggers' patrols in the bush. Further, the events that happened do not justify a conclusion that protesters were in fact rounded up - on the Monday, or thereafter. I have examined much evidence which bears upon that matter.

1500 All in all, then, the evidence does not support a conclusion that in fact loggers' patrols were conducted in the bush throughout SSP week; whilst the reports and intimations claimed by some protesters to ground a belief that such patrols were conducted were, as the case may be, unsoundly based, sought to make something of a remark which the remark would not bear, or made use of a remark unknown to any plaintiff. I cannot accept that any plaintiff truly formed a belief that there were loggers' patrols in the bush in consequence of anything said by a logger during SSP week; and I cannot see, if some plaintiff formed such a belief on the basis of the unfounded assertions of Greig and/or Fowkes, that the defendants should bear responsibility for that belief. Further, even if some plaintiff did form such a belief I cannot accept that such plaintiff believed in turn that he or she might be subjected to violence by loggers in the bush.

Patrols on Turton Track?

1501 Greig gave no evidence of seeing anything on 26 January that could be construed as a logger's patrol on Turton Track. According to his evidence it was common knowledge, the protesters were told, that there were such patrols [743]. No other protester gave evidence of being so informed by a logger. Each of Ms Lees [744] and Ms Dawson [745] gave evidence, however, that Greig told them of such patrols on his return on 26 January. Ms Lees also gave evidence that Fowkes made such a report; but he gave no evidence of any relevant observation or discussion.

1502 There was some evidence that something that might be called a patrol was undertaken along Turton Track. Ms Nelson gave evidence that she and Tipler were stopped by Molloy and Sheppard on the afternoon of 26 January and that Sheppard said they were checking to see if anyone had escaped [746]. Molloy did not specifically answer that allegation, but gave quite a different account of a meeting with Ms Nelson on 26 January [747]. Sheppard gave no evidence about the matter. Tipler was not called. Ms Calvert said that she asked the men to drive up and down Turton Track from time to time. There had been talk of newcomers coming in. She wished to discourage that. Her specific instruction had been not to hinder anyone coming out [748].

1503 Other than that, the certain facts are that those who left SSP and arrived at Turton Track were not prevented from continuing their journey; and that those who went to Turton Track in order to set off for SSP were not prevented from making that journey.

1504 In the event, on analysis few plaintiffs gave evidence of a belief that there were loggers' patrols on Turton Track, that grounding a fear of leaving through the bush. If Greig or Fowkes held such a belief - and I do not accept that either of them did, for it would run contrary to their experience - they gave no evidence which could sensibly ground it. So far as Ms Lees or Ms Dawson held such a belief it was the result of a report from Greig - and perhaps Fowkes, in the case of Ms Lees. That is all that need be said about the matter. Whether Ms Nelson's account of what occurred on 26 January should be accepted does not require determination.

Concerted action?

1505 My consideration of the evidence pertaining to allegations of restraining conduct, violence and threats of violence by loggers during SSP week leads me to conclude that nothing done or said by any logger in those connections fell outside the parameters of the conduct in concert which I earlier identified.

1506 It might be argued that remarks by Molloy and Wayne McGee did so, likewise the death threats by the unidentified person(s) which were heard by some of the protesters. If the remarks and threats had been serious expressions of intent, I should have said that they were in themselves conduct outside the confines of conduct in concert - that is, regardless that they did not lead on to any action. But what was said could not have been taken seriously, considering the overall context of the affair; and I am satisfied that it was not. I have said why that is so.

1507 Other than the remarks/threats to which I have just referred, it might be argued that such action as there was to inhibit Ms Nelson entering the protesters' camp on 25 January, and to prevent members of the Gross party entering that camp on 28 January, went outside the parameters of the conduct in concert which I earlier identified; likewise whatever it was that occurred when Jaskierniak entered the bush on 25 January. I would reject any such argument. The evidence about those incidents which I have accepted was compatible, at least in very large measure, with the no violence aspect of the protocol laid down by Ms Calvert.

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

Food and water

1508 By particular (tt) to paragraph 5 of the statement of claim the plaintiffs allege that -

[360]

She also said that she had enough food, not much. Her evidence that the plaintiffs "weren't able to get more food" was wrong, if it was intended to mean that the defendants inhibited the supply of food. Other evidence she gave - that only one box of food was brought in on the Monday or Tuesday - was also wrong.

1513 Greig said he did not think food was brought to the plaintiffs' camp on the Monday; but he agreed that food was definitely brought to the camp during the week. His evidence in the first connection was wrong in fact. He did not assert, I think, that he had too little food or water between 25-29 January.

1514 Ms Gross gave evidence of attending SRR with Ms Nelson on the Monday afternoon. I have already referred to that attendance. Ms Gross said that Ms Nelson asked if she could take the box of food to the protesters. This was refused. Later a policeman arrived, "a couple of hours" after their arrival. [750] He agreed to take the box of food to the plaintiffs so long as the witness and Ms Nelson left. Before that time, she saw a logger take one or two loaves of bread out of the box and throw it into the bush. [751] She identified a photograph [752] as showing the box of food on the road. [753] She gave evidence also that whilst she was in the plaintiffs' camp between 26-29 January "there wasn't a lot of food". There was enough water for drinking, cooking, washing dishes, but not for personal washing. [754]

1515 I am not satisfied that food was tampered with as Ms Gross (and also Ms Nelson) alleged. Had it happened, it would be odd if nothing had been said to Johnson, who thereafter attended. One would have expected it to be at the forefront of discussion. But neither Ms Gross nor Ms Nelson gave evidence of making any complaint; and Johnson's evidence suggests that no complaint was made.

1516 The conclusion which I have reached has not depended upon the relative credibility of Ms Gross, Ms Nelson, Johnson or Molloy (who also gave evidence about the matter). If it had, I should certainly have been reinforced in being not satisfied of the account advanced by Ms Gross and Ms Nelson, at least to the extent that I consider Ms Nelson was a witness whose credibility was significantly compromised.

1517 Dwan said that he arrived at SSP intersection with an esky containing food for one to one and a half meals and a 10, 15, 20 litre container of water. He still had most of the food on the Tuesday morning. By the Wednesday,

[366]

I do not accept that evidence, which does not accord with what in fact occurred. As to timing, the witness said that the conversation took place, she believed, on Tuesday afternoon, and that food had not been brought in earlier that day. If Ms Lees was correct about timing, then her evidence was otherwise incorrect.

1522 The witness said that on the Wednesday she tackled Molloy about an allegation that Chris Wheeler had thrown food into the bush. Molloy did not respond. I do not accept the witness's evidence that any such conversation occurred. Its timing, content (so far as Chris Wheeler was sought to be implicated), and Molloy's alleged failure to respond all tell against it.

1523 McFadzean gave evidence that on 24 January, before travelling to SSP intersection, some vehicles were packed with some food and provisions. He had hardly any food (of his own) in his van.

1524 He said he requested Johnson on the Monday afternoon that police officers escort food and water through the loggers' camp, and that Johnson said yes. He also made a similar request of Ms Calvert in a conversation later that day [760], and she agreed. I accept each aspect of this evidence.

1525 According to this witness, food and water were getting low by late Monday. He could not recall food and water arriving. As to the latter evidence, his recollection was wrong. As to the former, it was an exaggeration.

1526 McFadzean gave evidence that every day the plaintiffs had to request Ms Calvert and policemen for food and water to be brought in and escorted through. If he intended by that evidence to imply that the defendants were inhibiting ingress of food and water, the implication was not sustained by the evidence.

1527 The witness said that he raised concerns about food and water with Robinson when they spoke 27 January. In fact they spoke on 26 January. Later I will say something about what I consider was said by some plaintiffs to Robinson on 26 January about food and water.

1528 Bowles said that he gathered together a box of food and other things before travelling to SSP intersection on 24 January. By Monday afternoon food and water was very low -

[370]

I am satisfied that this evidence, the substance of which was denied by Ms Calvert (and also Chris Wheeler, whom Bowles mentioned), was inaccurate. It was not even consonant with evidence given by those other plaintiffs.

1530 Also inaccurate, I consider, was Bowles' evidence that "after many hours" of speaking to Ms Calvert and Chris Wheeler they relented - two boxes of food and about 40 litres of water being brought in, that being in the late afternoon.

1531 According to the witness, food was first escorted in on the Tuesday; and the police did not bring it in until Wednesday. That evidence was plainly wrong.

1532 Fowkes gave evidence that on the Tuesday morning food was pretty slim and the plaintiffs were rapidly running out of water. He spoke to Ms Calvert and the police, seeking food and water. There was no reply.

1533 By the Wednesday, the witness said, the plaintiffs had food and water; but there were concerns each day that they would run out [763].

1534 According to Ms Colson there was "pretty much nothing" - food and water - on the Tuesday morning [764]. This was, I am satisfied, an overstatement. Even so, it may be compared with the evidence of Bowles.

1535 Ms Colson gave evidence of telling Ms Calvert on the Tuesday morning that she was three months pregnant, she needed to eat, and that they needed food and water. Ms Calvert, she said, replied "bad luck" [765]. She was not in fact then pregnant.

1536 Ms Calvert gave evidence that she did not recall Ms Colson saying anything like that. Certainly she did not so respond.

1537 I think it is likely that Ms Colson did assert that she was pregnant in the course of a conversation with Ms Calvert which touched upon the question of food. It is improbable that such an unusual account was concocted. It may be the case that Ms Calvert said "bad luck". Whether, if she did, the remark was directed to the asserted lack of food and water, or to the asserted pregnancy, is another matter.

1538 Ms Colson gave evidence that soon after her conversation with Ms Calvert on the morning of 26 January, she spoke to a policeman, who brought in a box of overripe fruit, and some water. The description of the food seems to match the food which Fowkes said was brought to the plaintiffs' camp on the Monday evening.

1539 In re-examination the witness said that Ms Lees brought in enough food to feed five or six people and that Dwan brought in very little food. Apart from the box of fruit, other boxes of food that were brought into the camp contained

[372]

That evidence was, I am satisfied, a very considerable understatement.

1540 Ms Epstein gave evidence that on 25 January food and water was brought in - a small box of food by, she thought, Ms Calvert, and a partially filled water container by Molloy. She asked Molloy "where is the rest of it?" She did not remember the response [767]. Concerning this matter, Molloy said that he carried two 15 or 20 litre containers of water to the plaintiffs' camp, and that he did not tamper with them. He recalled no remark or complaint by Ms Epstein such as she alleged. He was not cross-examined about those matters.

1541 I accept Molloy's evidence that he did not tamper with the water. My assessment of him as a person, based on his evidence and the manner of his giving it, is that it is extremely unlikely that he would have done anything to deprive the plaintiffs of water which had been brought to the area by their supporters.

1542 It is possible that the containers were not full when delivered to the plaintiffs' camp. If that was the case, I am not satisfied that anyone on the defendants' side - that is, other than Molloy, whose pertinent evidence I have accepted - emptied water from them. If the containers were not full, it may be that Ms Epstein made the remark of which she gave evidence. If she did, it is unlikely that Molloy did not reply.

1543 Ms Epstein, questioned about multiple drops of food and water which the evidence suggested were made over a period of days, evinced a lack of recollection. She did, however, agree that there were dogs in the plaintiffs' camp, and that dog food was included in one food drop - this being, I suppose, some evidence that the defendants were not hard-hearted at least when the welfare of animals was concerned.

1544 Ms Garrett gave evidence that by 26 January, she thought, food and water was getting "fairly low". She did not remember being starving. She did remember not drinking a lot of water, so as to conserve it. That evidence was, in my opinion, credible, insofar as it referred to the situation before two food drops which took place that day.

1545 Ms Nelson gave evidence of negotiations on the Monday afternoon which lasted half to one hour before Ms Calvert agreed that the police should take in the box of food. Whilst she was there, some bread was thrown into the bush. She did not see it happen. Nocera was standing close to the box after she noticed that bread was no longer in it. She gave no evidence, as I understand it, either that the bread was retrieved or that the matter was reported to the policeman who attended and who agreed to take it to the plaintiffs. Nocera was not cross-examined, so far as I can see, to suggest that he had done what was implicit in Ms Nelson's evidence.

1546 The witness also gave evidence of taking a box of food to the Turton Track intersection in the late Tuesday afternoon, or early evening; and again on the Wednesday afternoon.

1547 She said that on each occasion that she made a delivery she observed "the loggers going through the boxes" [768]. I consider that this was an exaggeration of what occurred. It sits uneasily with the fact that she placed a folder of documents in the Wednesday afternoon box. Included amongst the documents was a note which she had written. It is not credible that, had there been a search, the folder would not have been seen; and, had it been seen, that its contents would not have been at least the subject of comment by the loggers to Ms Nelson or the protesters during that week.

1548 Speaking of the Wednesday night, at 10 o'clock or later, Ms Nelson gave evidence of trying to get a box of food and blankets to the plaintiffs. A policeman and loggers, including Molloy, were at the Turton Track intersection. The loggers would not let blankets through [769]. Argument whether the blankets should be let go through lasted approximately an hour. Four other persons, amongst whom she named Simone Fulton, were with her at the time.

1549 Molloy gave evidence of where he slept on the Wednesday night. It was not at the Turton Track intersection. He gave no evidence of being at the Turton Track intersection late that evening. In cross-examination he said that he did not remember seeing food dropped off at that intersection. He was not asked directly, either in examination or cross-examination, about an incident involving Ms Nelson, Ms Fulton, blankets and food on the Wednesday evening.

1550 Dent gave evidence of spending much of his time during SSP week at the Turton Track intersection. He recalled Ms Nelson being there on a number of occasions and Ms Fulton on some. He gave no evidence about an incident such as Ms Nelson recounted.

1551 In circumstances where Ms Nelson gave evidence of that passage of blankets was denied, where none of those with her at the time gave evidence, where Molloy did not squarely deny Ms Nelson's account, and where Dent's evidence was non-contributory, I think that I should accept what Ms Nelson said. I should do so although I regard her as having been an unreliable witness in a number of instances.

1552 Ms Nelson's further evidence in connection with food and water was that she received two lists of requisites from the plaintiffs during the week. They came via the policeman, Van Kempen. She purchased the required items, not all of them, she thought [770].

1553 Ms Calvert gave evidence that on 25 January, seeing the box of food, she instructed some of the men to take it through to the plaintiffs. Because of an accusation of interference - she did not say about what - the defendants arranged for every drop after that to be supervised by the policeman on duty. The police co-operated [771].

1554 Speaking of a conversation with McFadzean, Ms Lees and others which took place on the Monday afternoon, Ms Calvert said that in response to a question she said that the defendants would allow food and water in at all times. That connects with evidence of McFadzean and Johnson to which I have already referred. I have no doubt that she did say such a thing on 25 January.

1555 The witness gave evidence that on 26 January Robinson raised with her a complaint about food and water. She responded, she said, that the defendants' position from the start was that food and water "would get through", and that this had been happening with the assistance of the police.

1556 Ms Calvert denied the various allegations made by Bowles, Fowkes and Ms Colson. I have already discussed those allegations.

1557 Ms Calvert gave evidence that boxes of food were

[374]

1558 Robinson gave evidence that he was not aware of food being searched, but that he or another policeman gave a direction that police would where possible escort food in, so that there was no suggestion of it being tampered with [772]. He did not recall discussions with plaintiffs about food and water on the Tuesday. He did not understand food to be an issue - though he said that Tipler or Ms Nelson had made a request for a certain amount of water per day, that at some stage a resident from Glen Aire had rung, talking about protesters starving and requesting Red Cross; [773] and that it had been reported to him that a barrister, Gerard Mullaly, had rung advising, inter alia, that the Red Cross had been approached regarding the protesters starving [774].

1559 Generally speaking, I accept Robinson's evidence about these matters. I consider, however, consistently with evidence given by Ms Calvert, that one or more of the protesters must have raised the issue of food and water with him on 26 January. Probably, for the most part, any protester enquiry was directed to obtaining an assurance that the police would ensure ingress of food and water, even though such an assurance was in truth unnecessary in light of what had already happened.

1560 As to Robinson's understanding that food was not an issue, I consider that he focussed on the position as he ascertained it to be on site - that is, that the passage of food and water would not be inhibited and that police would ensure passage. I think that he discounted externally-made allegations that protesters were starving, and reference to the Red Cross, as being unnecessarily alarmist and as not reflecting the true state of affairs; and in my opinion he was well-entitled to so conclude.

1561 Johnson confirmed that on 25 January the plaintiffs - he believed it was McFadzean - requested that food and water be let through. He spoke to Ms Calvert and she said there would be no problem. Later that evening a couple of loggers helped him walk food and water to the plaintiffs. He observed no evidence of tampering [775]. Later on, he told McFadzean that there would be a 24 hour police presence and that food and water would be passing through. All this evidence fits the overall conclusions at which I have arrived, and which I now express.

1562 In my opinion the true position was as follows:

s The plaintiffs had some food and water with them when they set up their camp on 24 January;

s Ms Calvert made it clear from the outset that, so long as the plaintiffs remained, there would be no hindrance to ingress of food and water.

s There was no hindrance to ingress of food and water. Insofar as what was supplied to the plaintiffs was less than they might ordinarily consume and drink, and I accept that it was, that was not attributable to any conduct by the defendants or other loggers in inhibiting or preventing the passage of food and water.

s It was not the case that loaves of bread were removed from a box of food which was delivered on the Monday afternoon, and then thrown away.

s The accusation implicit in the evidence of Dwan and Ms Epstein that a water bottle was partly emptied by a defendants in the course of its delivery to the plaintiffs on the Monday afternoon was unfounded.

s The extent of shortage of food and water at any time during the week was much less than the evidence of some protesters would suggest. The exaggeration fits, however, a pattern of inflated allegations that were made by the protesters and people sympathetic to them during and after the week in question.

Generators

1563 According to the particulars to paragraph 5 of the statement of claim:

s "(m) During the night of Monday 25 January the defendants and the other loggers... kept generators running all night. The generators were near the camp.

s (p) the plaintiffs... were deprived of sleep by the noise...

s (aa) On the night of... 26 January... the defendants and/or the other loggers moved two very noisy generators into very close proximity to the plaintiffs' camp. The mufflers had been removed from the generators...

s (vv) During each night... the plaintiffs were subjected to... large generators... which severely disrupted their sleep.

s (yy) Throughout the... period the plaintiffs frequently requested that the second defendant intervene to prevent the... noise..."

1564 By Further and Better Particulars dated 14 September 2000 the plaintiffs asserted by paragraph 25(b)(c) that all the plaintiffs were subjected to

[387]

hacky-sack [785]. That night the generator was about two metres from where she attempted to sleep [786]. On the Tuesday and Wednesday nights she asked a policeman to do something about, inter alia, the noise and smell of the generators.

1575 Bowles gave evidence that a generator brought to the intersection on the Monday had no muffler. It was placed in the middle of the intersection. Once switched on it was loud and smelly and the smoke was directed to the plaintiffs' camp [787]. The generator was moved right next to the banner on the Tuesday, the exhaust being directed straight underneath the banner [788]. That night another generator was moved in and placed next to the generator that was already there. It got louder and there was lots more smoke [789]. The generator remained in that position for the rest of the week.

1576 Fowkes gave evidence of a generator sited out on SRR on the Monday night. On the Tuesday night the generator was positioned right beside Donato's van, with the exhaust facing the camp. The original generator had blown-up. There was no muffler on either generator [790]. The replacement, red, generator, was larger. The first generator blew up at some stage on the Tuesday night, and there was no generator noise for about 20 minutes [791].

1577 Ms Colson gave evidence that a generator was set up about 10 metres from the plaintiffs' camp, where the loggers were, on the Monday [792]. On the Tuesday a generator was moved about three metres from the plaintiffs' camp. [793]

1578 According to Ms Epstein, generators were set up some distance from the plaintiffs' camp on the Monday, probably 10 metres either side [794]. By the Tuesday the generators had been swapped and were directly at the banner's edge [795]. On the Wednesday night there was the sound, inter alia, of generators. They were directly in front of Greig's car [796].

1579 Kennerson said that one generator "ceased to operate", and was replaced by another - he believed on the Tuesday. On the Wednesday night the noise pollution increased. The defendants moved the generator as close as possible to the banner - he estimated three to four metres from where the plaintiffs were sleeping [797]. It remained there on the Thursday night. He observed only one generator in the vicinity of the intersection.

1580 Ms Garrett gave evidence that on the Tuesday night there was the noise of generators. She thought that on the Wednesday night they must have moved the generators closer, though she did not see them.

1581 Ms Calvert gave evidence that Robinson raised with her complaints by the plaintiffs about "noise and lights, generators, chainsaws, swearing ..." She told him that the defendants were not prepared to eliminate certain sources of noise, for that sort of annoyance was in their view a way to encourage the plaintiffs to leave. She assured him she would have it kept reasonable and keep an eye on it [798]. On the Tuesday night there were two generators. One light and generator was to the south/west of the caravan. Most usually the generator was near the light, but from time to time it was moved closer to the banner [799]. She did not disagree that it was noisy, and that at times if it was near the banner it would have been noisy for the protesters. To her recollection the generator did not remain at the banner all night long on any occasion [800].

1582 Molloy gave evidence of a generator sited south of the caravan and on the western verge of SRR on the Monday night. He could not remember it being placed next to the banner, as shown in the photograph of the red generator. The generator shown in that photograph was not the generator seen by him on the Monday.

1583 Nocera agreed that one of the photographs depicted him and the (red) generator near the banner. He could not recall what night it was [801]. He did not remember two generators being placed close to the banner from the Tuesday night [802]. He did not agree that the exhaust of the generator of which he had knowledge was directed towards the plaintiffs' camp. He saw no generator without a muffler; but he could not say if the generator of which he was aware had a muffler fitted [803].

1584 Nemet gave evidence of seeing two generators. One of them, he said, was behind the caravan, on SRR. He did not see it near the banner. Once he noticed that it had been moved further west. He saw no generator at the banner, but he did not go there very often and when he did it was mainly during the day [804].

1585 Flannigan gave a fragment of evidence [805] which adds nothing to the story; but he also gave evidence, which I see no reason not to accept, that children slept in his caravan on the Monday night [806]. Likewise Chris Wheeler, who did not spend the nights in the vicinity of the intersection, gave no pertinent evidence [807]. The same may be said of the evidence of Brian Wheeler, who was only at the vicinity of the intersection for a short time in all and, so far as nights were concerned, not at all. [808]

1586 Pearce described a generator sited south/west of the caravan and some of the width of SRR from the banner at the time he was in the vicinity of the intersection on the Tuesday evening [809]. He agreed that he saw the red generator at the banner "during the week", at night time [810].

1587 Wayne McGee gave evidence that a small two stroke generator and a small petrol generator were brought in by his father on the Monday [811]. There were issues about people trying to put straight petrol into the two stroke generator, and about absence of lighting facing towards the toilet. So the two stroke generator was taken away on the Tuesday and a larger generator and a new light were brought in [812]. The replacement generator was that shown in the photograph near the banner. The muffler was fitted to that generator, and could be seen in the photograph [813]. The muffler faced straight up, any fumes from it would rise vertically, and so would not go straight into the plaintiffs' camp [814]. The witness remembered seeing the generator positioned as shown in the photograph, but not when it was running. He said that if the generator had been running when the photograph was taken, then because it was running lights, "you should be able to see the ground" [815]. Normally, he said, the generator was wheeled close to the banner during the day because traffic was going through. It was run at night in the middle of the road. No one had specific responsibility for moving that generator [816]. Before the generators were set up their location was discussed with the police. The defendants wanted to run them in the middle of the road because that was the only place they should have been run - that is, during the fire season.

1588 Having identified pertinent evidence, I go to my conclusions. I am positively satisfied that

v From the Monday until the Friday two generators, though not the same generators, were present in the vicinity of the intersection.

v One of the two generators brought to the area on the Monday was replaced on the Tuesday - not because it broke down, not so as to introduce a larger and noisier generator, but because of a problem with people trying to put straight petrol into the tank of a two stroke engine. Wayne McGee's evidence in this connection was convincing; Fowkes' evidence, the contrary.

v The generators were run throughout each night, their purpose being to power lights.

v One of the generators was always sited closer to the defendants' camp area than to the plaintiffs' camp. Its noise was evidently tolerated by the defendants and others in their group, albeit that - contrary to what the plaintiffs contended was their situation - the defendants could move away from the immediate area if they chose.

v A number of children slept in the caravan which was sited close to the north eastern corner of the intersection on the Monday night. There is nothing to suggest that they were distressed by the level of noise from the generator which I am satisfied was then operating at a point closer to the caravan than to the plaintiffs' camp.

v No generator was ever run without a muffler fitted. Wayne McGee's evidence was convincing in respect of what was called the "red generator". [817] I entirely discount the evidence of Greig, Bowles and Fowkes on this point.

v It was never the case that two generators, then running, were placed adjacent to the banner. Some of the plaintiffs - Ms Jackson, Greig, Ms Epstein - gave evidence of a general kind of generators, plural, being placed extremely close to their camp. Bowles gave more specific evidence to that effect. Not only was their evidence inconsistent with the evidence of other plaintiffs and of the defendants, it was not confirmed by any photograph. It would be extraordinary, one generator having been photographed in the vicinity of the banner, that two generators would not have been photographed in that area if two generators had been so positioned - even for a short time.

v Notwithstanding the evidence of Wayne McGee, there were times, probably on both the Tuesday and Wednesday nights - but not on either the Monday or Thursday nights [818] - when a generator, whilst running, was pushed close to the banner. McGee's contrary evidence on the point was partly a matter of observation and partly a matter of reconstruction. It may be the case that his evidence concerning the import of the photographs at CB 688 [819] was correct. Nonetheless, concessions were made by Ms Calvert, Nocera and Pearce which give currency to the less florid of the evidence given by and for the plaintiffs.

v On such occasions as the red generator, whilst running, was positioned close to the banner, it was positioned there to annoy the plaintiffs. I am satisfied, however, that Dwan's evidence of a meeting which he observed on the Thursday, and of remarks which he heard Ms Calvert make, was a fabrication [820]. In that connection, though it is by no means decisive, I am satisfied that the red generator was not pushed close to the banner on the Thursday night.

v Evidence of some plaintiffs to the effect that the exhaust from the red generator was directed into their camp cannot be accepted. The evidence of Wayne McGee, and the photograph of that generator, show why that is so.

v The amount of noise created by the red generator which was on occasions positioned near the barrier, and its effect upon individual plaintiffs, is hard to assess. No doubt the generator did create noise; but the evidence of many of the plaintiffs about generators was greatly overstated, or demonstrably wrong. I particularly have in mind the evidence of Greig, Dwan, McFadzean, Bowles, Fowkes and Ms Epstein.

1589 In all, I am satisfied that the red generator, when run near the plaintiffs' camp, was a cause of annoyance to the plaintiffs, more so to some than others. Other than when that generator was positioned close to the plaintiffs' camp, no doubt the generators created some noise when they were running. I doubt, however, that the noise was of an intensity to prevent sleep. I readily accept, I add, that a number of plaintiffs made complaints about generator noise. I do not regard such complaints as decisive of the extent of noise or its impact upon individual plaintiffs. I am well satisfied that during SSP week the plaintiffs made a number of complaints which misstated or overstated the true situation.

Lights

1590 The statement of claim by the particulars to paragraph 5 alleges the following:

s "(m) During the night of Monday 25 January... the defendants and the other loggers set up floodlights directed into the camp of the plaintiffs...

s (p) During the night and early on the morning of Tuesday 26 January the plaintiffs were deprived of sleep by the lights ...

s (aa) On the night of Tuesday, 26 January ... the floodlights continued to illuminate the camp.

s (vv) During each night of the relevant period the plaintiffs were subjected to flood lighting ...

s (yy) Throughout the relevant period the plaintiffs frequently requested that [Ms Calvert] intervene to prevent the ... floodlighting...."

1591 Evidence about lights was given in the course of the plaintiffs' case by each of the plaintiffs, and by Kennerson and Forrester. I will refer to its detail hereafter. The gist of the evidence was that the defendants floodlit the plaintiffs' camp with what must be inferred to have been the deliberate intent of harassing the plaintiffs and preventing them from sleeping.

1592 Pertinent evidence was given for the defendants by Ms Calvert, Molloy, Nocera, Nemet, Flannigan, Chris Wheeler, Dent and Wayne McGee. The gist of that evidence, overall, was that on each night there was such lighting as was necessary to illuminate the defendants' camp areas and SRR in the vicinity of the intersection; but that the lights were not directed into the plaintiffs' camp, nor did they have any significant impact of that kind.

1593 I consider that the evidence adduced by the defendants' side was persuasive. It was not in every respect consistent, but it was more logical, in explaining the presence and positioning of the lights, and was thereby more persuasive, than the evidence adduced by and for the plaintiffs. To that general conclusion I add the following: First, of all the evidence given about the matter, I regard the evidence of Wayne McGee as being the evidence upon which I can most confidently rely. Second, such photographs as went into evidence offer some support for the conclusions which I have reached. Third, though it has not been of key importance in resolving the particular dispute, I regard some of the evidence adduced by and for the plaintiffs upon the issue as fitting a pattern of misstatement and exaggeration to which I have referred elsewhere in these Reasons. I go to some of the detail of the evidence.

1594 Ms Jackson gave evidence that floodlights were brought in on 25 January and that on each night she was at the camp they were trained directly on the camp. [821] She referred to the impact of certain things, including the floodlights, upon her. [822]

1595 Greig gave evidence that on the Monday night floodlights were placed

[408]

According to the witness, one of the floodlights set up on the Monday was on the western side of SRR, and would have lit up the area between the caravan and their camp. [852]

1605 Ms Epstein described the state of the lighting on the Monday night as "extreme". Spotlights were very soon turned towards the plaintiffs' tent. [853] The light was pointed at the inside of their canvassed area. The light came in from the back and the front. [854] On the Wednesday night the lighting had increased. As far as she knew more lights were brought in and were all aimed at the plaintiffs' camp. [855]

1606 On the Monday night, Ms Epstein said, there were three or four lights and two generators. The first light was just west of the caravan and was facing south east. The second light was south west of the first, either on SRR or its verge. The third light was on SRR south of the intersection and on the eastern side of SRR. It would have been to the right of the scene depicted in exhibit Q [856]. There was a fourth light. She did not remember it until the Tuesday. She did not believe that any of the floodlights were removed during the week. She did not clearly identify a light sitting on a tripod in exhibit 23 as being the second light which she had described. [857]

1607 Kennerson gave evidence that on the Monday a generator arrived, with 2 floodlights. Floodlights were directed at the camp. [858] To his recollection the number of lights did not change in the succeeding days. He marked the position of the lights - the site of one of them altered, he said - on a diagram. [859] It is notable that on this diagram the first light was, according to the witness, sited south of the caravan. At one stage, the witness said, the second light was facing out into the bush. [860]

1608 Ms Garrett gave evidence that on the Monday two lights were set up, directed into the camp. [861] On the Tuesday, the spotlights were moved closer. At one stage she saw a floodlight adjacent to the caravan. Later it was moved, probably as close to the banner as it could get. [862]

1609 Ms Calvert gave evidence that on the Monday, by the time she left, one light had been brought in. It was positioned four to six metres north of the caravan and to the west. It was not on when she left [863]. By the Tuesday night there were three lights. One was to the south west of the caravan, in the south west quadrant of the intersection, and lit up the intersection, the back and side of the caravan. The other two lights were north of the caravan. One faced north, towards the toilet. The other shone back towards the awning and entrance to the caravan; also the barbecue area [864]. At no stage were any of the lights placed hard up or adjacent to the plaintiffs' tarpaulin or Donato's van. She said that the first light to which she had referred could be seen in Exhibits BC and 21. The light to the south west could be seen in Exhibit 23. She agreed in cross-examination that the second light illuminated not only the caravan and barbecue area but also where the banner was [865].

1610 On Molloy's account, there was only one light on the Monday. It was shining into the caravan and barbecue area. It was positioned north of the intersection [866]. On the Wednesday night there were three lights. One lit up the barbecue area, one shone north towards the toilet and the third was south of the caravan, over on the grass verge of SRR. It was shown in Exhibit 23 [867]. He said that

[415]

Evidently he was referring to the plaintiffs.

1617 I referred earlier to photographs. It is apparent from the evidence that many, many photographs were taken during the period 25-29 January, very often by the plaintiffs [879]. No photograph shows a light placed adjacent to the banner. No photograph depicts a light in the position to the south of the plaintiffs' camp and on the eastern verge of SRR as described by Ms Epstein. No photograph depicts multiple lights in the near vicinity of the plaintiffs' camp and pointing towards their camp. No photograph depicts a light in the vicinity of the first light shown by Kennerson in his diagram [880]. Some photographs do provide support for the description of a light sited north/west of the caravan and facing south/east [881]. Another photograph provides support for the siting of a light to the west of SRR and facing generally north [882]. Several photographs probably show illumination from the light depicted in Exhibits BC and 21. I refer to part Exhibit F at CB 678.2 and Exhibit BP. A photograph evidently taken at night from the plaintiffs' camp with the aid of a flash, looking west [883], does not suggest that the intersection was much lit up. On the other hand, a photograph evidently taken on the Monday night in the intersection [884] shows a pool of light from an unknown source illuminating some part of the caravan. A photograph evidently taken on or after the Tuesday night, showing the plaintiffs' camp area, with several people apparently dancing [885], again does not suggest that the area was much lit up.

1618 In the event, what photographs there are support, generally, the defendants' account of things; In circumstances where many things were photographed by the protesters, it is at least odd that no photograph was taken as would depict the location of lights which were claimed to constitute such an annoyance.

1619 As I have earlier noted, evidence called for the defendants did not in all respects coincide. So, for example, some witnesses said that they only recalled one light on the Monday night; and at least one defendant said that he could recall no light sited to the south/west of the intersection. But the evidence, considered overall, impels a conclusion that Wayne McGee's evidence was correct: on and from the Monday night there was a light positioned north/west of the caravan. It illuminated the caravan and the barbecue area. On the Monday night there was a smaller light, situate on the west side of SRR and facing south. From the Tuesday, that light was moved north of the caravan and faced north towards the toilet. It was replaced by a third light - shown in Exhibit 23 - which was placed on the verge of SRR, to the south of the intersection, and faced north.

1620 I further conclude that some illumination from the first light which I have described did spill into the plaintiffs' camp; and that the broad beam of the light sited to the south west of the intersection illuminated the intersection and the plaintiffs' camp to an extent. But I reject the evidence that the extent of that illumination was to render the plaintiffs' camp, during night time, "bright as day".

1621 I have also reached the clear conclusions that the lights were not set up to annoy the plaintiffs; and that there is no reason why they should have done so. Various of the plaintiffs may have complained to Ms Calvert and policemen about the lights. But I do not take any such complaint to assist a conclusion that the plaintiffs' versions of the positioning of the lights, and their effect, was accurate.

Chainsaws

1622 The particulars to paragraph 5 of the statement of claim allege:

[421]

1633 That was a fantastic piece of evidence, which I reject. The idea of a chainsaw being run over a long period of time and being handed from one man to another is extremely improbable. It goes against the most basic idea of a worker's relationship with his valuable equipment.

1634 Chainsaw use, according to Greig's evidence went on all night on the Tuesday. Wednesday night was very similar. Chainsaws were run intermittently that night.

1635 Greig said that he took up with Ms Calvert and Molloy a concern about health and safety - that persons operating chainsaws without bars and chains were not wearing safety equipment - by which he meant helmets and ear-muffs. They said nothing according to his evidence; but afterwards chainsaw users wore fluoro vests, helmets and ear-muffs. [890]

1636 That was another piece of improbable evidence, at least as to cause and effect. I mention it not because of its intrinsic importance, but because it is another matter which bears upon the reliability of Greig's evidence more generally. There is little objective evidence, I think, that a man ran a chainsaw when not wearing ear-muffs. [891] Even if there was some instance of use of a chainsaw by a man not wearing a helmet and earmuffs on 25 or 26 January, and even if Greig made representations to Ms Calvert and Molloy along the lines alleged, it seems to me far-fetched to conclude, as Greig implicitly did, that the use of safety equipment such as he described was a consequence of any such representation.

1637 Ms Gross gave evidence of sleeping very little on the Tuesday night because of noise, including the noise of chainsaws. She saw chainsaws throughout the time she was at SSP. She saw them close to the banner, sometimes on the plaintiffs' camp side. Later in her evidence, however, she said that occasionally, at night-time, they sounded as if they were being run on the plaintiffs' side of the banner. [892]

1638 I consider that Ms Gross' evidence on this issue was pretty reliable. In that connection, I add, I do not take her in the end to have asserted that chainsaws were in fact run on the plaintiffs' side of the banner on any night.

1639 Dwan gave evidence that he did not sleep well on the Monday night. That was because of a series of concerns which he described. He referred also to chain sawing, which he said did not seem to be legitimate use - chainsaws were being revved out and allowed to idle indiscriminately. [893]

1640 On Tuesday night, according to his evidence, there were more chainsaws - two or three. They had no bars or chains. They were run right outside the banner, all night. He identified Pearce and McGee as the operators. [894] Wednesday night was

[426]

1646 Wednesday night, the witness said, she was more fearful. Asked if anything else caused her to stay awake, she mentioned, inter alia, chainsaws. Chainsaw noise was definitely not at the forefront in this evidence.

1647 Ms Lees gave evidence of an incident on the Thursday morning near the banner. Pearce was "going for" Fowkes with a chainsaw. Fowkes was putting his hand in and out. She believed that the chainsaw had its bar and chain on. A little later, at the banner, Pearce lent over the shoulder of a policeman who was there, holding a chainsaw, fitted as she recalled it with bar and chain, and reached towards the witness. The incident, or its precursor, was shown in exhibit AG.

1648 Cross examined about this incident, the witness said she believed that she had arrived after the scene depicted in part exhibit O, CB 685.2. She was not aware that Fowkes had climbed under the banner. She did not see the police officer speak to Pearce after the incident in which the latter had held a chainsaw over or near the shoulder of the former.

1649 There is more to be recounted about this incident, but I should immediately say that I do not accept Ms Lees' evidence that Pearce, in effect, thrust a chainsaw at her over the shoulder of a policeman. The prospect that this occurred but that the policeman did nothing except to roll his eyes, as the witness said was the case, is slight. Clear also it is, contrary to the witness' doubtful recollection, that the chainsaw which Pearce had at the time did not have its bar and chain fitted.

1650 On the Thursday night, according to the witness, chainsaws were not run. It was a lot quieter [899]. This evidence was consistent with the body of evidence overall, and I accept it.

1651 McFadzean gave evidence that he heard and saw chainsaws being operated on the Monday night. Pearce operated a chainsaw within the plaintiffs' camp as night was falling. The bar and chain was not fitted. Chainsaws were run intermittently through that night.

1652 I am satisfied this evidence was wrong in a number of respects. The witness' evidence about Pearce corresponded with evidence initially given by Greig, but later, as it seems to me, not pursued by that witness. Moreover, McFadzean's ability to fix days in sequence was not good. Note also his later evidence [900] that chainsaws may not have been operated in the plaintiffs' camp on the Monday.

1653 The witness said that chainsaws operated in and around the plaintiffs' camp throughout the night. Again he identified Pearce as a person who used a chainsaw within the camp. Contrast, I think, his later evidence that Nocera was the first person that he saw using a chainsaw in the plaintiffs' camp. Even putting to one side the apparent variations in McFadzean's evidence, I am not satisfied that either Pearce or Nocera ran a chainsaw on the plaintiffs' side of the banner on Tuesday or Wednesday night.

1654 Ms Dawson, speaking of the Tuesday, said that the chainsaws were run a lot that night. She believed they were fitted with bars and chains. The two people who stood out as using them were Nocera and Pearce.

1655 The Thursday night, the witness said, was much quieter than the previous two nights. The Tuesday and Wednesday nights had been, she was speaking in general terms, "very intense nights." [901]

1656 Ms Dawson was not cross-examined, I think, about her evidence in connection with chainsaws. I consider that it was accurate.

1657 Bowles gave evidence that on the Monday night chainsaws were "revving all night long". Quite a few people were walking right around the plaintiffs' campsite. He identified Nocera, Pearce and "Pinky" McGee. Sometimes men with chainsaws were centimetres from the campsite.

1658 The evidence was surely wrong, so far as it referred to the Monday night. It was an exaggeration as to the extent of chainsaw use on any night. If "Pinky McGee" was an intended reference to Wayne McGee- he gave evidence that the McGee brothers and their team members all wore pink vests - then Bowles' evidence was wrong insofar as it suggested that McGee operated a chainsaw other than infrequently, and other than to cut wood.

1659 According to Bowles, chainsaws were run "all night long" on the Tuesday; and on the Wednesday and on the Thursday. Because of lights and the accumulation of noise he had no sleep on the Tuesday or the Wednesday night.

1660 The burden of Bowles' evidence was that chainsaws were run all night long, with sufficient break so that loggers could be heard hurling abuse, [902] on each of the four nights. That was not the case. The burden of the evidence, even from the plaintiffs' side, suggests minimal chainsaw use on the Monday and Thursday nights.

1661 Fowkes, speaking of the Tuesday night, said that

[432]

1673 On the Thursday he saw Fowkes trying to grab a chainsaw which had the chain still attached, and which was being run by Pearce [911]. He saw Ms Colson taking photos, and the camera being pushed into her face.

1674 I do not accept the witness's evidence about the frequency of use of chainsaws on the Monday night. His evidence about the status of Pearce's chainsaw on the Thursday morning was plainly erroneous.

1675 Ms Garrett gave evidence of thinking she remembered chainsaw noise on the Monday night. She remembered chainsaws on the Tuesday night, across the banner, with their chains on. She referred to one chainsaw and then to hearing and seeing another chainsaw further away. A chainsaw was run, on and off, throughout the night. Wednesday night was the worst for noise, from sources including chainsaws, and abuse.

1676 Ms Garrett was not cross-examined about her evidence concerning chainsaws and their use. With the possible exception of her evidence that she saw a chainsaw with the bar attached close to the banner on the Tuesday night - she might possibly have been referring to the chainsaw used by Wayne McGee to cut firewood - I accept the accuracy of her evidence.

1677 Ms Calvert gave evidence that, an issue being raised about the amount of noise generated by the plaintiffs on the Monday night, and an expressed wish to retaliate, she told the men on the Tuesday that she would allow them to make noise, using chainsaws to do so, provided they were run without bars and only in what had become the loggers' area. It was not to get out of hand. Subsequently she saw chainsaws being run without blades attached to make noise; never with blades on.

1678 On the Tuesday, Robinson told her that there had been complaints about noise, including chainsaw noise. She said that they were not prepared to eliminate it. He said to keep it reasonable. He gave no instruction that the noise be ceased.

1679 On the Tuesday night, the defendants' group was making a fair bit of noise, including revving chainsaws without bars for no more than one to two minutes at a time. McFadzean complained about such noise amongst other complaints which he made the next day. She told him they did not intend to make no noise, that if it was an annoyance maybe it would encourage the plaintiffs to leave. She certainly hoped it would annoy them [912].

1680 In cross-examination, the witness said that chainsaws were run throughout the week, from time to time more than others, past 11 pm "occasionally, intermittently" [913]. Her evidence of chainsaw use on the Monday night, which she described as "not extensive", was hearsay-based. She was not in the vicinity of the intersection that night. It adds or subtracts nothing from the direct evidence about that matter.

1681 It emerged in Ms Calvert's cross-examination that in a radio interview which took place not long after SSP week the witness had probably said that chainsaws had been used to cut wood; and had made no mention of them being used for purposes of annoyance. Insofar as the witness gave such an account it was less than the truth, and it bears upon her credit.

1682 Speaking generally, I consider that Ms Calvert's evidence was reliable on the issue of chainsaw use. I do not consider, however, that the use of chainsaws to annoy the plaintiffs was simply a response to noise created by the plaintiffs on the Monday night; nor do I conclude that chainsaw use did not go beyond 11 pm any night.

1683 Molloy gave evidence that he did not recall use of chainsaws by loggers on the Monday night. He gave evidence about the Tuesday morning meeting at which it was decided to make noise, in response to noise from the plaintiffs' camp, to

[434]

1684 He recalled Pearce and Sheppard revving chainsaws with their bars removed for minutes at a time that night. He went to bed in his ute at about 11 pm to midnight. It was not his recollection that chainsaws were run intermittently throughout the night. He did not himself run a chainsaw that night. People used their own chainsaws.

1685 The witness, having said in evidence in chief that if a chainsaw is run for long without a bar attached the clutch is at risk to blow up, was extensively cross-examined to suggest that this is not the case. The issue is not one that need be determined. I am satisfied that relevant defendants probably had a belief that such was the case. Nocera certainly did; and his evidence and that of Molloy and Pearce persuades me of the likelihood that other loggers who ran chainsaws without bars that week probably had a similar belief.

1686 The witness agreed, by reference only to the audio section of a video tape, that the idea of making noise with chainsaws was discussed by loggers on the Monday afternoon.

1687 Speaking generally, I consider that Molloy's evidence was reliable on the issue of chainsaw use. He did say, though I have so far not mentioned it, that he did not see a chainsaw being used to cut wood. A chainsaw was so used; but that does not mean that Molloy's evidence was untruthful. I am satisfied that his recollection that chainsaws were run at revs for a few minutes at a time was correct; but not his asserted recollection that chainsaws were not run intermittently throughout the Tuesday night.

1688 Nocera gave evidence of revving one of his chainsaws, its bar having been removed, on the Tuesday night. He said that he did this at half hourly intervals [915]. He also revved his chainsaw on the Wednesday night, but not on the Thursday night. He did not rev his chainsaw intermittently throughout the Tuesday and Wednesday nights. On one occasion Fowkes ran at him whilst he was revving his chainsaw, laughed and said something to the effect that he could have sued the witness had he been injured [916].

1689 Cross examined, the witness agreed that fire timber was cut with a chainsaw, though he did not observe nor hear it getting cut up. He took the bar off his saw, he said, for safety reasons. He ran it "to annoy the greenies" [917]. He ran it for 10 minutes in all on the Tuesday night, the last burst being in the early hours of the morning, probably 20 to 30 seconds each time. He said:

[438]

1692 He agreed that he understood that using the chainsaw as he did on the Tuesday night would either prevent or enormously disrupt the plaintiffs' sleeping [921]. He recalled no conversation with Ms Calvert about the use, or desisting from use, of chainsaws.

1693 On the Wednesday night, the witness said, he used his chainsaw, probably not as much as on the previous night. He recalled use of chainsaws only by himself and Pearce. They took it in turns to use chainsaws intermittently, for some but not most of the night. He used it early in the night and again the next morning, at maybe 5 or 6 am. He slept some of that night.

1694 Nocera, I consider, gave a generally credible account of his use of a chainsaw. He said he used his chainsaw on the Tuesday and Wednesday nights only. That is consistent with the conclusion I have reached about the use of chainsaws for annoyance purposes. He frankly conceded that his chainsaw made plenty of noise. He stated what his purpose was in running it, and said that he understood the effect its use would have on the plaintiffs' sleeping. His evidence as to how long he ran it at any one time, that he ran it up until the early hours of the Wednesday morning, and that he ran it both on the Wednesday night and the early Thursday morning seem to me to be probably accurate. His evidence of how long he ran it in all, by reference to the time taken to empty a tank of fuel, came out of the blue, and had the ring of truth. Even so, I should think that a tank of fuel would last somewhat longer if the saw was not being run at high revs throughout.

1695 Nemet gave evidence of seeing Pearce and Sheppard with chainsaws, but not running them at the time. He did not see any logger with a chainsaw running that week, but he heard a chainsaw running on the Wednesday, it would have been in the afternoon, and again, on the Thursday morning - on the latter occasion for probably five minutes. He said that he is used to hearing chainsaws all the time and did not look up each time he heard one.

1696 There was, he said, firewood cut that week; but he did not see it being cut.

1697 Later in his cross-examination, the witness said that he heard chainsaws on the Tuesday and Wednesday nights; and then, probably in the afternoon and night.

1698 Overall, the witness's evidence about chainsaw use was not consistent. Whether it was intentionally untruthful is another matter. Nemet did not himself use a chainsaw during the period in question. He is accustomed to their noise, albeit not in circumstances such as these, and that may have made it somewhat difficult to pinpoint when they were run during SSP week. In all, his evidence was of extremely limited value upon the issues now under consideration.

1699 Flannigan, I am satisfied, was present in the vicinity of the SSP intersection on the Monday and Tuesday, and on the Monday night. On the Tuesday night he slept in his vehicle up towards the Turton Track intersection. Thereafter he resumed his work and did not visit the intersection.

1700 Against that background, Flannigan gave evidence that he heard no chainsaw running on the Monday afternoon or night; nor on Tuesday. Children, I mention this aspect of his evidence again, slept in his caravan on the Monday night [922].

1701 I see no reason to disbelieve Flannigan's evidence about what he said and heard. Any use of chainsaws in the period that he was in the vicinity of the intersection was, I conclude, minimal. Further, whilst it is a common experience that children sleep readily, I find it difficult to believe that children would have slept through a chainsaw being run in close proximity to the caravan; although, on Flannigan's evidence they were sleeping despite the noise allegedly being created by the plaintiffs' party, and despite whatever noise the generators made.

1702 Chris Wheeler gave evidence of a non-specific discussion at a toolbox meeting on the Tuesday about annoying the protesters. It was generally agreed that something be done. He said he slept in his vehicle up towards the Turton Track intersection that night. He heard no chainsaws.

1703 During that week he did not see anyone operating a chainsaw; nor did he hear one. He heard about chainsaws and their use from someone on the defendants' side of the banner.

1704 This witness's evidence neither added to nor subtracted anything from the evidence pertaining to the use of chainsaws for annoyance purposes that week. Most of the chainsaw use to annoy the protesters was made at night. According to the witness he did not sleep near the intersection on the Tuesday night and went home to Colac on the Thursday night. I think that there was no clear evidence where he spent the Wednesday night. In all the circumstances I am quite unsure whether his evidence about neither seeing nor hearing chainsaws during the week was deliberately untruthful.

1705 Wilson gave evidence, which I accept, that he attended the SSP intersection on Monday afternoon, again on Tuesday, Wednesday, Thursday and Friday. Each day, Monday to Thursday, he went home to Colac at about 5 pm. He did not attend a toolbox meeting.

1706 Against that background, Wilson said that during the week he saw wood cut with a chainsaw and himself used a chainsaw with the blade remove to annoy protesters. He did that on the Tuesday or Wednesday morning. He saw no one else using a chainsaw in that way. It was his idea to remove the bar. He ran the chainsaw for 30 to 40 seconds in total. He agreed that he was depicted holding a saw in a photograph [923], and that he had carted the saw, having removed its bar, a considerable distance to the intersection. He gave evidence, in effect, of a belief that a chainsaw can be wrecked if run without a bar for a protracted period.

1707 I accept Wilson's evidence about the belief to which I have just referred, but I consider it likely that he ran the saw more than just once. Preparation to run it in such a way suggests the probability that it was run a few times, if only for short periods. I accept his evidence that he saw no other person using a chainsaw with the blade removed. He had no reason to lie about the matter. The probable explanation for his evidence is that chainsaws without blades were mainly run when he had gone home. Finally, I do not accept that it was simply his idea to run his chainsaw in the manner which he did. I think it likely that another logger mentioned to him use of a chainsaw set up in that way.

1708 Pearce gave evidence that he used a chainsaw, always with the bar removed, at times when he was in the vicinity of SPP intersection. He did so to "annoy ... the greenies". [924]

1709 He threatened no one with his chainsaw.

1710 On the Thursday, at the banner, Fowkes reached under the banner and tried to grab his chainsaw. He pulled it back and told Fowkes to leave his fucking chainsaw alone. Fowkes told the witness to come on, hurt him, because he was going to sue him. He, the witness, walked back, calling Fowkes a frigging idiot. [925]

1711 Pearce denied holding his chainsaw over a policeman's shoulder and towards Ms Lees, as she had asserted in her evidence. He denied taking his chainsaw into the plaintiffs' camp, and denied also other specific allegations about chainsaw use made by various plaintiffs.

1712 Cross-examined, the witness denied seeing any of Wilson, Nocera, Wayne McGee or Sheppard using a chainsaw during the week. Neither did he hear chainsaws being run. However, he saw evidence, in the form of sawdust, showing that wood had been cut. To my questions he said that he hears chainsaws every day in the bush, and that he paid no particular attention to whether anyone else was running one.

1713 Further cross-examined, Pearce gave evidence that he ran his chainsaw at times both during the day and at night. He did not run it, however, on the Monday night, nor during the day on Tuesday. Tuesday night he revved it a couple of time, for 20-25 seconds each time. It was fairly late when he did so, about 10 pm. He ran it at a position about seven feet west of the banner. It was his idea to run his chainsaw.

1714 At the time of the Fowkes' incident, Pearce said, he ran the chainsaw for, it would have been, 20 to 30 seconds. If he ran it much longer, the clutch would blow up - and that is what it did when he ran his chainsaw again that day. [926]

1715 The photograph at CB 657.2, [927] the witness said, showed the scene before the Fowkes' incident occurred, because he still had his earmuffs on. Immediately Fowkes reached out, he turned his machine off. He heard what Fowkes said although he was still wearing his earmuffs.

[440]

1716 I accept some of Pearce's evidence about chainsaw use; but reject other parts of it.

1717 I consider, as I have said already, that the conduct alleged by Ms Lees was improbable, and I accept his denial.

1718 I accept his denial that he took a chainsaw into the plaintiffs' camp, an allegation raised principally, if not only, by Greig and McFadzean; an allegation which varied in its content.

1719 I accept his denials of other particular conduct alleged by Greig and Bowles pertaining to use of a chainsaw - not simply by reason of his denials, but because of the reliability, as I assess it, of the evidence raising the allegations.

1720 I accept his version of the Fowkes' incident, although in my opinion the photo exhibit AG was taken after, not before, the incident. Pearce's evidence to the contrary was based upon reconstruction. If it be thought that the conduct alleged by Pearce was improbable, reference may be made to other strange conduct by Fowkes on the Thursday.

1721 I accept Pearce's evidence that he did not run his chainsaw on the Monday night.

1722 I accept his admission, I have thus far not referred to his evidence about the matter, that a chainsaw is a pretty loud piece of equipment; likewise his evidence that he did not run his chainsaw with the muffler removed.

1723 I do not accept Pearce's evidence as to the extent to which he used his chainsaw on the Tuesday night. I think his evidence was a substantial understatement of the true situation. Further, I think it likely that when he ran it, he did so whilst close to the banner.

1724 I do not accept his evidence that it was his idea to run his chainsaw. He must have got the idea from someone else - for I could not conceive, having seen and heard the witness, that he originated it.

1725 I do not accept his evidence that he did not see Nocera with a chainsaw in hand during the week. But I can and do accept his evidence with respect to Wilson, Wayne McGee and Sheppard. McGee only used his chainsaw infrequently, and that to cut wood. Neither Wilson nor Sheppard used a chainsaw much at all.

1726 Wayne McGee gave evidence of the site of the woodheap, and from where the wood came. He used his chainsaw to cut wood, from the Monday. He did so as required, taking anything from 30 seconds to 10 minutes. [929] His schedule was to cut wood between 4 and 6 pm, between 10 and midnight, and between 7 and 9 am. I accept this evidence. As I have said in other connections, I consider that in many, though not all respects McGee was an impressive witness.

1727 McGee said he heard other chainsaws being operated from time to time. He heard them on the Tuesday night. He could not say how often.

1728 He did not hear them going right through the night, but it could have been at any time during the night. I accept the truthfulness and reliability generally of this evidence.

1729 He was not party, he said, to discussions about use of chainsaws to annoy the plaintiffs. He did not believe he saw a chainsaw being run without bar attached.

1730 I have doubts about the reliability of this last portion of the witness's evidence. It may be fairly argued that he should have been expected to know of the annoyance plan. Moreover, there was some evidence which placed him at the banner on a night when Nocera and Pearce were running chainsaws. On the other hand, it may be the case that it was essentially those who ran chainsaws without bars attached who talked about engaging in that particular conduct. All in all, I am not prepared to make a finding adverse to McGee about these matters.

1731 Sheppard was present in the vicinity of SSP intersection each day between Monday and Thursday. He spent two nights in the area, probably but not certainly Monday and Wednesday. By his admission he ran a chainsaw, without the blade attached, two or three times. He ran it with the muffler on. He saw each of Nocera and Pearce using similarly configured chainsaws that week.

1732 Cross-examined, he agreed that he ran the chainsaw to give the protesters "the shits":

[442]

1733 In the present connection, Sheppard's evidence was essentially not in contest. The only evidence, a photograph apart, of Sheppard holding or running a chainsaw was given by Molloy and Nemet. I accept Sheppard's evidence.

1734 Viva voce evidence apart, I should briefly mention photographs which depict men holding chainsaws with blades detached. Thus: part F, CB 775.1 and 777.2 (Wilson), exhibits O, part AE, CB 669.1, AG, AN and CE (Pearce). None of them, it may be observed, show a defendant with chainsaw within the plaintiffs' camp area. I mention also the discussion about chainsaws heard on the audio section of the Nocera videotape. I have referred to it already when detailing cross-examination of Molloy.

1735 Having recapitulated pertinent evidence, and indicated my acceptance of parts and rejection of other parts of it, I can move to my conclusions. Thus:

s A chainsaw was used to cut up firewood which was brought to SSP intersection by Wayne McGee. A woodheap was established near the north-east corner of the intersection, just south-east of the caravan, and quite close to the northern extremity of the plaintiffs' banner. The wood was burned in a fire-heater made up by McGees's father and sited at the defendants' camp. That wood was cut up from the Monday onwards, on a few occasions each day. It is not likely that a chainsaw was used for more than 10 minutes, as an outer limit, on any such occasion. It was not used with a purpose of annoying the plaintiffs. I doubt that it had any such effect, except perhaps on a few occasions when it was used for short periods in the late evening or early morning.

s On the Tuesday and Wednesday nights chainsaws were run, without bars and chains fitted, to annoy the plaintiffs. They were not so run on either the Monday or Thursday night.

s Chainsaws were infrequently operated in that way during daylight hours on each of Tuesday, Wednesday and Thursday.

s Persons who operated chainsaws with a purpose of annoying the plaintiffs were Nocera, Pearce, Sheppard and Wilson. The evidence does not enable a conclusion that any other persons used a chainsaw in such a way.

s Although in the audio part of a video-tape recorded on the afternoon of 25 January there is a reference to chainsaws being run without mufflers, no evidence entitles a conclusion that chainsaws were in fact so run.

s It is likely that chainsaws run to annoy the plaintiffs were run at high revs for a short period at any one time. I think that the pertinent defendants believed, rightly or wrongly, that to run a chainsaw not fitted with bar and chain at high revs for anything more than a minute or two - at the outside - could lead to damage to the machine.

s It is likely that at least several chainsaws were run at high revs over short periods for many hours on each of the nights of 26 and 27 January.

s It is likely that Nocera and Pearce operated chainsaws most frequently. It is unlikely that Nocera, who probably ran his chainsaw the most, ran it at revs for more than 20 minutes overall.

s The use of chainsaws to annoy the protesters was action conceived, informally, by some of the defendants. The action had Ms Calvert's imprimatur. Whilst the action was probably in some measure a response by the defendants to the plaintiffs having given the appearance of enjoying themselves on the Monday night, its prime purpose was, I consider, by annoying the protesters to drive them from SSP - leave aside whether or not on particular terms - and preferably out of the Otways.

s The described use of chainsaws did inhibit the plaintiffs sleeping on the nights of 26 and 27 January. The extent of the inhibition varied from one plaintiff to another. That said, some evidence given by and for the plaintiffs substantially overstated the extent of chainsaw use and its impact.

s Evidence given by certain plaintiffs in respect of an incident which occurred on 28 January and which involved Fowkes, Ms Colson, Ms Lees and Pearce, was substantially unreliable.

s Evidence of some plaintiffs that defendants or other loggers ran chainsaws fitted with bars and chains other than for woodcutting should not be accepted.

s The evidence of some defendants that they neither saw nor heard chainsaws being run whilst in the vicinity of the SSP intersection, leaving aside whether or not that evidence was truthful, does not reflect the fact.

Drums

1736 It is common ground that loggers beat makeshift drums during SSP week. It was conceded by the defendants' side that this was done to annoy the protesters.

1737 The "drums" were apparently 20 litre metal containers [931].

1738 The persons who beat on the drums included, but were probably not limited to, Nocera and Sheppard.

1739 I am satisfied that in very large part this activity took place on the Tuesday and Wednesday nights. It is doubtful that there was any evidence that it took place on the Monday night [932]. If there was a fragment of evidence to that effect, I reject it. There was no evidence that such conduct took place on the Thursday night.

1740 The frequency with which and overall period during which the drums were beaten on the Tuesday and Wednesday nights was a matter of dispute. [933] I consider it likely that the use of the drums largely mirrored the frequency with which and overall period of time during which chainsaws were operated on the two nights. It is also likely, I consider, that the drums were beaten for short periods - probably at most a minute or so - on each occasion that they were used.

1741 As to where the drums were beaten, the evidence favours a conclusion that at least sometimes this occurred in close proximity to the blue banner.

1742 Finally, it is likely that, as with the use of chainsaws, beating the drums did inhibit the plaintiffs sleeping, to a varying extent, on the nights of 26 and 27 January.

Use of Video cameras

1743 The statement of claim makes no specific reference to use of video cameras by the defendants between 25-29 January. Particulars to paragraph 5 do, however, allege that defendants and other loggers periodically "wandered through the camp" [934] and "walked through the plaintiffs' camp" [935]. Further particulars of the latter allegations specify that this conduct occurred "on several occasions" [936].

1744 As I understand it, notwithstanding there being no reference to video monitoring in the statement of claim, the plaintiffs argue that the humiliation, indignity and deprivation of privacy of which they complain was caused in part by their being subjected to what plaintiffs' counsel called, at times, "video monitoring". Further, the plaintiffs rely upon excerpts of video tapes recorded by Nocera and Molloy (or by members of their families, or friends, using their video cameras) as direct evidence pertaining to matters in issue. Again, they rely upon what was allegedly said by Ms Calvert at the Colac and Skillshare meetings concerning "video monitoring", and use of video cameras by defendants between 25 and 29 January, as tending to a conclusion that what happened in that period was action in concert in furtherance of a common design. Further, they rely upon answers in cross-examination of particular defendants upon the question whether video monitoring was mentioned at the Colac or Skillshare meetings as going to the credit of those defendants. Further again, they contend that more was recorded than the defendants will now admit; the invited inference being that damaging video material has been destroyed or simply not discovered. Finally, they rely upon dispute as to whether all video recorded material was discovered as bearing specifically upon Nocera's credit.

1745 I doubt that the plaintiffs' side ever outlined the various aspects of the video monitoring issue in the way that I have just done; but I think that that was the gist of the matter.

1746 I have already expressed a number of conclusions with respect to use of video cameras; specifically in connection with the Colac and Skillshare meetings. I will not repeat them. Neither will I say anything more about the detail of protester use of video recording and still photography before 25 January. Beyond those matters, I have reached these conclusions:

s First, the only video cameras used by the defendants between 24 and 29 January to film events at and in the vicinity of SSP intersection belonged to Molloy and Nocera.

s Second, a good part of one tape and a small portion of another tape was recorded on the Nocera video camera. The entirety of the material recorded on the first videotape was produced in discovery. The small portion recorded on the other tape was unintentionally lost not long after 29 January 1999, probably because it was recorded over.

s Third, it follows that Nocera's evidence about what was recorded by his video camera was accurate; and his credit undamaged in that connection.

s Fourth, part of a tape was recorded on the Molloy video camera. No part of that tape was not produced.

s Fifth, Nocera did enter the plaintiffs' camp area with his video camera on a few occasions. I am not satisfied that any of them occurred after the blue banner was erected on 26 January.

s Sixth, evidence of Greig particularly, also Ms Gross and Ms Colson, to the effect that they were constantly or continuously filmed, was seriously inaccurate.

s Seventh, at the Colac meeting the use of video cameras was not a headline issue. It was not mentioned in the context of direct reaction to protest action. Rather, it was mentioned in the context of timber industry workers obtaining their own evidence of what transpired in the course of forest protest action. It is, I think, clear that those who worked in the timber industry in the Otways knew that protesters and their supporters commonly took video footage and still photographs of protest actions; at times, as industry workers would say, in a contrived setting and so as to create a false impression. Sometimes, at least, such footage and photographs were taken before the arrival of DNRE officers and police. Any videotape recorded by DNRE officers in such cases was necessarily incomplete, [937] and not such as to redress inaccuracies created by protester video-footage.

s Eighth, not all the defendants who attended the Colac meeting were present throughout. Further, the meeting was evidently noisy; and not all who did attend heard clearly everything that was said. Nonetheless, excepting Ms Calvert, those defendants who did attend the meeting either denied, or doubted, that "video monitoring" or "videoing" was mentioned. It was said for the plaintiffs, in effect, that it was unbelievable that this should be so. In substantial measure, I do not agree. I have earlier said a good deal about the pertinent evidence given by those defendants who attended the Colac meeting. To that I add the following: Obtaining a fair record of what transpired at a forest protest - or at least the other side of the story - was important. But obtaining such a record was not central to what was discussed at the meeting. It was, moreover, in part an aspect of obtaining a balanced media presentation - an issue which was broadly discussed, as most defendants who were present at the Colac meeting agreed. Again, some of the defendants were cross-examined by use of the term "video monitoring", which I have concluded was not a term used by Ms Calvert at that meeting. Further, of the many people, including defendants, who attended the Colac meeting only Molloy and Nocera took video cameras to SSP intersection in the period 25 and 29 January [938]; and used them (or one at least) in a very amateurish way. Thus the use of Molloy's video camera by his 10 year old son on the Monday. Finally, why should the defendants deny mention at the Colac meeting of "videoing" protest action if they recalled such mention? From their perspective, use of video footage to record the timber industry side of the story was nothing for which apology was required; and I have already concluded that use of video cameras was discussed in that context.

s Ninth, I consider nonetheless that the mention of video cameras at the Colac meeting probably stimulated Molloy and Nocera to take their video cameras to the vicinity of SSP intersection. That is the most obvious explanation for their doing so, notwithstanding that discussion about use of such equipment took place in a different context. Mention of video cameras at the Colac meeting must have registered to some extent, then, with Molloy and Nocera despite their evidence, sometimes doubtful [939], that the subject was not mentioned.

1747 In my seventh conclusion I refer to video footage recorded by protesters and their supporters. In the course of the trial, as I have said earlier, video footage of that character was tendered by the defendants of incidents which took place before 25 January and which involved some of the plaintiffs. In a number of instances the evidence showed that such footage was recorded by Birrell, and rarely by other protesters. The video tapes, and evidence of their provenance, shows a course of conduct of recording protest action engaged in by protesters in the Otways region of which the defendants could not have been unaware. In the present context it would be immaterial that not all the plaintiffs were shown to have engaged in that course of conduct. One relevance lies in its being, as I perceive it, important background to discussion by Ms Calvert of use of video cameras; and how that was likely to have been understood by defendants who heard what she said.

1748 That is not the only relevance of the video footage recorded by protesters before 25 January. For the most part the cameraman was Birrell. That shows not only his pervasive presence at a number of forest protests - and, indeed, other incidents - in the summer of 1998/1999; but in light of his important role in the affairs of Oren, it stands with other material in explaining a role for Oren as an institution in the events which occurred between 25-29 January. That is so although Oren's structure, as described by various plaintiffs, involved almost no recognisable structure at all.

1749 Beyond what I have just said, for reasons appearing elsewhere in these Reasons I am satisfied that the video footage to which I have been referring was admissible with respect to different plaintiffs, and not always for the same reason; as was video footage recorded by DNRE officers.

1750 I turn to the evidence which has led me to the conclusions that I have expressed; and evidence which, though opposed to one or more of those conclusions, I have specifically rejected.

1751 There is clear evidence that Nocera used his video camera on the Monday. Video footage of meetings between plaintiffs and defendants that day went into evidence. Photographs [940] show Nocera holding a video camera. The content of those photographs, together with other evidence, shows that they were taken on the Monday. Further, Ms Lees [941], McFadzean [942], Ms Dawson [943], Bowles [944], Fowkes [945] and Ms Colson [946] all specifically identified Nocera as a person who operated a video camera that day in the vicinity of the plaintiffs' camp. Their evidence, photographs [947], and Nocera's own evidence all lead in the one direction.

1752 There is evidence that another video camera was in use on the Monday. A photograph [948] shows Molloy's son, Jacob, holding a video camera that day. Molloy said that his son used his video camera that day, and the Molloy video tape seems, not only because of its amateurish quality, to confirm such use. Certainly, video footage was taken with Molloy's video camera that day. Fowkes referred to "some children", apparently in connection with video cameras [949]. So did Ms Epstein [950]. It is likely, I think, that if any child other than Molloy's son was seen with a video camera on 25 January, it was Molloy's video camera - and not necessarily in use, as distinct from being held.

1753 Fowkes, Ms Dawson [951] and perhaps Ms Colson [952] gave evidence suggesting that a multiplicity of video cameras were in use on the Monday. I do not accept that evidence. It may have been a simple mistake that led to such evidence - that is, in consequence of the video cameras of Molloy, and perhaps Nocera, being held by more than one person that day.

1754 Monday apart, there was specific evidence that Nocera used his video camera within the plaintiffs' camp area on the Tuesday morning. It was given by from Fowkes [953], Ms Colson [954], Ms Epstein [955]; and probably (though she did not identify a particular day) Ms Jackson [956]. Nocera did not specifically deny using his video camera that day; though he went close to doing so [957]. He certainly denied recording footage of protesters sleeping; and no footage of such an event went into evidence. I think that he probably did stand close to one or more awakening plaintiffs that day, that he then held his video camera as if filming, but that he was not then filming.

1755 McFadzean gave evidence that he complained to Robinson, on the Wednesday, of use of video cameras to intimidate conservationists [958]. If he did say any such thing, it was said on the Tuesday in the early afternoon. It does not offer any support for a claim that video cameras were used beyond that time.

1756 Nocera's video camera was certainly used on the Thursday. A visual and aural record exists of certain things done and said by some plaintiffs that day.

1757 Molloy's video camera was used on the Friday. Material which he recorded that day is extant [959]. Nocera admitted the use of his video camera that day, though not by him [960].

1758 Not all of the material which was recorded by the Nocera and Molloy video cameras went into evidence. There is no point in speculating what the other footage shows.

1759 Beyond evidence thus far summarised, a few plaintiffs gave evidence to the effect that there had been continual video taping over the entire week. The high-water mark was Greig's evidence, referring to Nocera, that the latter

[445]

1760 Greig gave evidence also, I should note, that when people were being video taped they put on a "brave face". He did so [962].

1761 Evidence somewhat similar to that given by Greig was given by Ms Gross [963] and Ms Colson [964]. Ms Colson particularly referred to Nocera, and Ms Gross identified his involvement in a hearsay way.

1762 I am entirely unpersuaded by Greig's evidence. It had about it the grave exaggeration, not to say misstatement, which in my opinion infected much of his evidence. I have given other examples in the course of these Reasons.

1763 The evidence of Ms Colson and Ms Gross, I consider, much overstated the situation. I do not think this was deliberate. Rather, their seeing a video camera held or in use on occasions during the week created an impression which was not the reality.

1764 Extracts from the Nocera video tape pertain, though shortly, to events which occurred on 25, 26 and 28 January. It is clear that the particular tape did not commence with events occurring on 25 January. Neither did it conclude with events occurring on 29 January, for footage recorded at Garvey Track on Sunday 31 January 1999 was put in evidence as Exhibit CG.

1765 As a matter of probability, one would think that a video tape beginning and ending with material recorded outside the period 25 to 29 January was likely to embrace whatever was recorded within that period. But Nocera admitted that a small amount of footage had been recorded on a second tape, which footage, he claimed, had later been erased. His admission, non-production of a second tape, and what were said to be different explanations as to how the footage came to be erased were linked together by plaintiffs' counsel with such evidence as there was of continual video taping, this leading, as he contended, to a conclusion that footage, evidently damaging to the defendants, had been destroyed or withheld.

1766 I reject this contention for a number of reasons. First, in my opinion, Nocera gave a credible account why a second tape came to be inserted into the video camera, and when that occurred [965]. Second, the events which occurred, and which might have been recorded, after the second tape was apparently inserted were not such as were likely to have been damaging to the defendants. Third, whilst Nocera gave variant accounts of when a woman probably or possibly used his video camera [966], and for the erasure of footage on the second tape [967], I think that the differences on which plaintiffs' counsel focussed were more forensic points than points of substance. Fourth, I have left it until last because it involves something of a bootstraps argument, I have not accepted evidence that the plaintiffs were continually video taped, whether by Nocera or by he and others [968].

Drunken behaviour; complaints to Ms Calvert?

1767 Whilst, so far as I can see, the particulars to paragraph 5 of the statement of claim do not specifically alleged drunken behaviour by any of the defendants or the other loggers, particular (yy) alleges that during the week the plaintiffs frequently requested Ms Calvert to intercede to prevent "drunken behaviour"; and that she refused to do so. I understood the plaintiffs to argue, more broadly, that instances of defendants wandering through their camp [969] and of being loud and abusive on the Tuesday night [970] were alcohol-related; this bearing upon their claims for aggravated and exemplary damages.

1768 Evidence was given by a number of the plaintiffs concerning alcohol; and as well by Ms Garrett and Ms Nelson. Pertinent allegations were denied by the defendants. One of the matters emphasised by the defendants was the imposition by Ms Calvert at the outset of a no-alcohol protocol; and its implementation.

1769 Ms Jackson gave evidence that on mid to late Sunday afternoon Nocera came by in his vehicle, got out, and abused the plaintiffs. He was then holding a can of beer.

1770 Ms Colson gave evidence of a similar incident. She did not identify Nocera [971].

1771 There was an incident of the type described on 24 January. I have already so concluded, just as I have concluded that Nocera was not the man involved.

1772 The only other piece of relevant evidence given by Ms Jackson was in re-examination. Asked whether any of the loggers in her hearing asked for the ability to go through the plaintiffs' camp and to SSP coupe, she replied

[462]

1779 Ms Garrett gave evidence that on the Tuesday, her memory was coming back, a group of the loggers seemed to be drunk in their behaviour [983]. She did not see anyone actually drinking any alcohol [984].

1780 According to Ms Nelson, she could smell alcohol when at the Turton Track intersection on the Wednesday evening. She believed that there was a slab of beer in the back of the car of a former officer of the Department.

1781 I will not recite the voluminous detail of the evidence given by the defendants referring to the no alcohol protocol and to it being abided. I have concluded that there was such a protocol; and explained why, I consider, it was imposed. I will rather go to evidence pertaining to the specific allegations which were made.

1782 Ms Calvert denied that any conversations had taken place with Greig, McFadzean or Epstein as they respectively alleged; [985] save that she agreed that McFadzean had said that he thought that people were drunk, in answer to which she had assured him of the alcohol ban and its implantation [986].

1783 Nocera denied driving on SRR on the afternoon of 24 January; likewise that he had been drunk, as Greig alleged [987]. He admitted a prior conviction for being drunk in a public place.

1784 Pearce denied that he had been drunk, as Ms Epstein had suggested. He had not seen the "eskies of beer" referred to by Greig [988].

1785 Chris Wheeler denied Bowles' evidence that he had gone to the plaintiffs' camp and removed Pearce [989].

1786 On analysis, only two plaintiffs gave evidence of having seen any of the defendants drinking between 25-29 January - that is, Greig and Ms Jackson. Greig claimed to have done so on the Tuesday both before departing to Apollo Bay and after his return that evening. His evidence of what he observed suggests a state of affairs that should have been readily observable to any number of plaintiffs, the scene being susceptible of record by the use of cameras. But Ms Jackson's fragment of evidence apart, no other plaintiff gave evidence of seeing defendants drinking, let alone of the Rabelaisian scene described by Greig; and of the many photos that went into evidence, not one depicts a defendant or other logger with a can of alcohol, let alone drinking. I regard Greig's evidence on the point as having been unbelievable. It cannot have been a simple error. It was part of much evidence given by Greig that was, in my opinion, unreliable. I have given other instances elsewhere in these Reasons. I add that Ms Jackson's evidence about drinking, which emerged in the course of a non-responsive answer, and in re-examination, was fragmentary and unexplored. I regard it has having little evidentiary value.

1787 Greig, Ms Dawson, Bowles, Ms Epstein and Ms Garrett gave evidence of observations made which suggested that, on the Monday and Tuesday nights, loggers - particularly Nocera and Pearce on the Tuesday - were alcohol affected. McFadzean's complaint about "drunken behaviour" seemed to have been founded on an inference that the behaviour of which he complained must have been alcohol-fuelled. The particular allegations were as I have said, denied.

1788 I have concluded that Ms Calvert did lay down a no alcohol rule, which she stated often enough. From her standpoint it was important that whatever protest the defendants and their supporters staged did not get out of hand. She could not but have been aware of the risk that, if things did get out of hand, legal action would ensue. A ban on alcohol was likely to reduce the risk of untoward behaviour.

1789 I conclude that all the other individual defendants knew of the alcohol ban. I have already concluded that one reason for the picket at the Turton Track intersection was to screen out anyone who was perceived to have been drinking.

1790 I consider it likely that the ban was in large part honoured. To my mind the only question is whether it was infringed to some extent on one or two nights.

1791 I do not conclude from the fact that chainsaws were run and makeshift drums played that alcohol was at work. Resolution of the balance of the allegations made by the plaintiffs must primarily focus, I think, upon the observations said to have been made by Greig, Bowles, Ms Dawson, Ms Epstein and Ms Garrett.

1792 Whilst I have concluded that the evidence of those witnesses was unreliable to a greater or less extent, and despite Pearce's denials, I think it more probable than not that Pearce consumed alcohol on the Monday and Tuesday; and that he was affected by alcohol on those nights. His evidence shows that he went home to Colac on the Monday and Tuesday afternoons, later returning to the area of the intersection. Probably, I think, he had a drink at Colac, or when driving.

1793 Beyond those findings, I have no doubt that there was a good deal of noise in the loggers' camp on the Tuesday night. It may well be that complaints were made to Ms Calvert and that she answered by referring to Australia Day, and to the loggers' day out. At that stage she was condoning certain actions to annoy the protesters. If the noise of chainsaws, why not the noise of a party?

1794 That leaves open the question whether the noise of a party was alcohol-fuelled. In ordinary circumstances, the idea that a group of country working-men would have a no alcohol party would be remarkable. But these were not ordinary circumstances. I do not exclude the prospect that some logger had with him, and consumed, some alcohol on the Tuesday night; but I consider that any such incident, if it occurred, was the exception.

1795 Other than what I have said, the plaintiffs have not satisfied me of any allegation that they made with respect to use or effect of alcohol.

1796 This also must be said: in my opinion, insofar as Pearce's behaviour was influenced by drink, such behaviour could not be said to be behaviour engaged upon in concert with the other defendants.

Loud Music

1797 The particulars to paragraph 5 of the statement of claim allege that:

[475]

It is necessary to consider each of these contentions.

25-29 January: An act of persuasion?

1809 I have concluded that Ms Calvert's characterisation of the picket as an act of persuasion represented her true position, that she drew a distinction between the picket and activity designed to prevent it being crossed, and that whilst she did not describe the picket in the language of her characterisation to the other individual defendants [996] she did impress upon them the no violence aspect of the protocol. I have further concluded that the conduct of defendants and their supporters in the incident involving Ms Jackson on the afternoon of 25 January should be regarded as conduct consistent with adherence to that aspect of the protocol.

1810 Save to the extent that Ms Jackson's walk north was an attempt to leave along SRR, I am not satisfied that any protester, except for McFadzean on 26 January [997], sought to leave through the picket or leave in part along SRR during SSP week. Not only did no protester attempt to do so on foot, no protester sought to drive north or south along SRR at any time after the loggers' party arrived.

1811 In circumstances where no more than one protester attempted to leave along SRR through the picket, and where the incident involving McFadzean occurred in ambiguous circumstances, the questions which arise are whether the no violence edict meant that the picket was truly an act of persuasion; and, allied with that, whether the plaintiffs unreasonably failed to take advantage of an available means of egress - that is, through the picket and along SRR.

1812 In my opinion it should not be concluded that the plaintiffs unreasonably failed to take advantage of an available means of egress if the existence of that means was, in substance, concealed from them; and if they did not otherwise apprehend its existence. Suppose that A was locked in a house by B, and that a key to its front door, unknown to A, had been concealed by B in a drawer of some piece of the furniture. I do not think that B could be heard to say that there was no imprisonment because a means of egress was available to A. It would or at least it might be different, I think, if A, though not knowing what B had done, knew that a front door key was regularly left in the drawer, and simply failed to check whether it had been left there on this occasion.

1813 Against that conceptual background, Ms Calvert told protesters on 25 January, more than once, that if they wanted to go, they should go now. She said that when the picket was set up, people could not cross it. In what she described as the third conversation, when she announced that a picket had been set up, she said that if a person went out, such person could not come back. In the so-called fifth conversation that day she said to McFadzean and Ms Lees that if there could be an agreement with Oren and TWS, then the protesters could go. In the course of that day she intimated that there would be no problems with ingress of food and water. Whilst she asserted that there would be no violence, it is apparent also that she did not tell the protesters what, according to her approach, would happen physically if any of them sought to cross the picket. All in all, her remarks were apt to create the impression that the picket - putting to one side what keys there might be - was a true barrier to egress by protesters along SRR. What she said on 25 January, I add, was consistent with some remarks which I am satisfied she made later that week.

1814 Thus far, it seems to me that any key constituted by the picket being simply an act of persuasion was concealed. Further, with three possible exceptions there is nothing to show that any protester was likely to have been aware of the theory that a picket operates by moral force alone; and there is nothing to indicate that any of those three persons instructed their companions about that theory.

1815 It is the fact that, as I have concluded, the conduct of the loggers and their supporters when Ms Jackson approached the picket line was consistent with Ms Calvert's no violence edict, and thus with the picket being an act of persuasion. True also it is that Ms Jackson probably represented to some of her companions that she had been prevented from leaving; and that what she probably said is likely to have coloured the perception of those companions - that is, as to what they had witnessed. The defendants should not bear responsibility for an impression which Ms Jackson created in that way. But on the other hand, the loggers and their supporters had not opened a path through the line, merely retreated, when Ms Jackson approached. To Ms Jackson, and to observers unversed of the theory of the force of a picket line, what occurred was apt to suggest that the picket was a true barrier to egress along SRR. The key can be said to have remained concealed.

1816 I referred to there being possibly three exceptions to the proposition that no protester, in effect, was likely to have understood the theory of a picket line. McFadzean had been a union employee for years, having been a part-time organiser at one stage. Greig gave evidence of coming from a strongly unionist family background. According to his evidence, he understood "what picket lines are for". On his account, when he and Ms Jackson approached the loggers' group on 25 January they were told that they:

[477]

1817 Dwan claimed to have some knowledge of pickets. He agreed that he would have preferred not to cross a union picket line.

1818 I have earlier discussed Greig's evidence of his alleged attempt to leave along SRR on the afternoon of 25 January, and have rejected much of his account. I doubt whether at that time, there was any mention of "scabs" by the loggers. [999] The significance of Greig's evidence in that connection is its tendency to confirm his understanding of the force of a picket line.

1819 It does not follow from what McFadzean, Greig and Dwan arguably knew about the theory of union pickets that any of them believed that the theory represented the reality at SSP intersection. Whether I should conclude that any of them held such a belief depends upon whether, individually, they reasonably believed that they would be restrained if they attempted to cross the picket.

1820 McFadzean, I consider, was entitled to believe, at least from the Tuesday, that a protester would be prevented from crossing the picket. From his perspective, he was restrained from leaving along SRR that day.

1821 The position of Greig and Dwan, relevantly, is quite uncertain. I have rejected evidence which each of them gave about incidents of restraint and threats. Very doubtfully, I conclude that whatever they saw of the Jackson incident, coupled with Ms Calvert's remarks particularly on 25 January, caused each of them to believe that the picket was a true barrier to egress along SRR.

1822 In the event, even if the picket - which in fact very rarely took physical form - was no more than an act of persuasion, the key implicit in that situation was concealed from the protesters.

1823 It remains to add this: were it determinative, I would be satisfied that the no violence edict would have been obeyed had any protester sought to leave along SRR. My analysis of much conduct of the loggers and their supporters, and reference to the key role of Ms Calvert in the whole affair, would so satisfy me. I would conclude that the picket was, so far as egress by protesters along SRR is concerned, in truth an act of persuasion.

Leaving by agreement

1824 I have already concluded that, from the late afternoon of 25 January, Ms Calvert pursued a parallel strategy of seeking to obtain personal no-protest commitments from the protesters at SSP, and a no-protest commitment from Oren and TWS. I have also concluded that the first time that a document was shown to any of the protesters was on the Wednesday, it being a document in handwritten form. That document was not put in evidence, but was said by Ms Calvert to have been in the same form as the computer printed document, Exhibit G, a copy of which was evidently given to one or more of the protesters on 28 January. I see no reason to conclude that the documents differed. In that connection, I note the form of the agreement sought from the Gross party on 28 January.

1825 I have also noted, earlier, some of the evidence given by the protesters about their knowledge of an agreement - when they heard of it, what they understood its content to be. There was a good deal more evidence about those matters, and about discussions amongst the protesters whether or not to sign an agreement. There was also a good deal of evidence about attempts to set up a meeting between loggers' representatives and representatives of Oren. I refer to some of the latter body of evidence when discussing Robinson's evidence.

1826 The key question is, I consider, capable of being answered without reference to the additional evidence. It is this: was the failure by any protester to sign an individual no-protest agreement a failure to take advantage of a reasonably available means of egress from SSP intersection during SSP week?

1827 For the purposes of answering that question I make two assumptions favourable to the defendants and contrary to the evidence. First, that all protesters understood on and from 25 January that they could leave by signing an individual no-protest agreements. Second, that all protesters understood on and from 25 January that the agreement which need be signed was in the form of Exhibit G.

1828 Upon those assumptions, I consider that the protesters were justified in not signing the agreement. It is true that, from a lawyer's perspective, it was not a document which would have carried legal force; and I accept the evidence of Bill Gross that he told the protesters who were in his vicinity something to that effect on 28 January. But the protesters were not lawyers, and, whether it would have had legal force or not, the proposed agreement required an undertaking not to engage in protest action going beyond action which would have been unlawful. No one, even in respect of a document having a broad political rather than legal force, should be obliged to give such an undertaking.

1829 Now it may be said that in fact the situation was more clouded because -

• McFadzean, who in fact held a leading position amongst the protester group, in substance drew an inexorable link between individual protester agreements and the position of Oren/TWS.

• Individual protesters, whether because they were misled by McFadzean, or for some other reason, had an incomplete or confused understanding of what agreement was being sought; yet did not seek to ascertain its terms, or to see a document.

• Some protesters did not sign the document which was eventually proffered because they were unwilling to break ranks with their companions.

• Some protesters expressed their own distinct reasons for not signing an agreement - reasons different to that which in my view justified them not signing such agreement.

• It might be concluded, at least in the case of some protesters, that their interest throughout SSP week was in staying, not leaving, SSP intersection.

1830 In my view the evidence requires conclusions that each of the matters which I have just postulated was the fact. But it does not follow that the defendants are entitled to profit from those matters in the present connection.

A police gate?

Protester and police evidence

1831 Senior counsel for the plaintiffs trenchantly criticised the conduct of the police in his closing address. He criticised every officer who had any close connection with the SSP incident. His criticism went far beyond what had been put for the plaintiffs in opening. I have referred earlier to the plaintiffs' case having undergone a very distinct change with respect to police conduct in the course of the trial [1000]. There was a definite attempt, in the course of counsel's final address, to put the police on trial, notwithstanding that no police officer had been made a defendant.

1832 The thrust of the plaintiffs' case was that it was beside the point whether Ms Calvert had told the loggers that any police direction was to be obeyed; or had said any such thing to Robinson. For the reality of the matter was that the police would do nothing to facilitate the departure of the protesters from SSP intersection despite their requests. Worse than that, they took the loggers' side, allowing the loggers to imprison the protesters, and to harass them by noise, lights and so on. There was, in the event, no "police gate" to the picket. The defendants should have called all the police officers. I should the more readily conclude, in circumstances where not all the officers had been called, that all the requests to leave and complaints of which evidence was given had been made; and that the responses alleged to have been given had been given, and were evidence of the state of mind of the police officers - that is, that they would not assist the plaintiffs.

1833 I shall in a moment review some of the evidence that was called in the present connection. Before doing so, I am able to make certain observations and express some conclusions:

1834 First, the defendants called two police officers - Robinson and Johnson. According to the plaintiffs' case multiple requests to leave were made to each of those officers. Yet both of them - Robinson being effectively the man in charge of police operations that week - said that no such requests were made. Further, Johnson noted in his diary a remark by McFadzean which expressed a contrary intention on the part of the protesters; whilst Robinson gave evidence of an understanding that the protesters were not leaving. I have already concluded that Johnson's evidence was reliable, and the relevant protesters' evidence unreliable.

1835 Second, the police roster tendered by the plaintiffs [1001] shows the following:

[478]

Johnson's notes show him being relieved by an officer named Williams after 11 pm on the Monday night. Johnson confirmed in his viva voce evidence that he was relieved by Constable Williams. Hence the bracketed name in the Monday night shift.

Gurrie was also at SSP at some stage on 25 January. I have not inserted his name in the roster. The same applies in the in the case of Robinson, who attended on 26 January. There was also evidence that Merry was in the area on the Tuesday [1002] or the Wednesday [1003], or the Thursday [1004]. It is clear that he was present at least on 26 January at about the time of Robinson's visit. I have not included his name in the roster.

Other than what I have said in expansion of the roster, I see no reason not to accept its reliability. In some instances that suggests inaccuracy in evidence given by protesters.

1836 Third, virtually no evidence was given about interaction between the protesters and Cooper. The only protester evidence that was given [1005] was conjectural, and wrong - because Cooper was not at SSP intersection on the evening of 25 January. There was no evidence that Cooper did not accede to a request to leave. He was not shown to be a witness in the defendants' camp. I would draw no inference adverse to the defendants by reason of their not calling him.

1837 Fourth, the burden of the protesters' evidence with respect to Van Kempen showed that he acted sympathetically towards them. So, for example, according to Ms Lees he offered on 26 January to negotiate with Ms Calvert about the ingress of food and water, he told her on 27 January that Ms Nelson was at the Turton Track intersection, offered to take Ms Nelson money and a list of required supplies on that occasion, and did take such a list. He also brought in food, and on Ms Lees' account protected her from attack by Pearce on 28 January.

1838 Whilst there was a little evidence of requests to leave being made to Van Kempen, there was really no evidence that he rejected any such request.

1839 Dwan gave evidence that, he seems to have been referring to the Monday night, he said to Van Kempen that he wished to return home [1006]. But it could have been Cooper, he said, to whom he made that remark. He gave no evidence of any response. According to the roster, as well Johnson's evidence, Van Kempen was not in the area on the Monday evening.

1840 Further according to Dwan, at one stage he asked Van Kempen what would happen if protesters committed an offence and were arrested. Would they then be escorted out? Would it be enough if they smashed a headlight? Van Kempen, according to Dwan, said that it would [1007]. Mrs Dawson gave evidence of a somewhat similar conversation. But she said that it was with Tregellas, and that he replied that he could not do anything.

1841 The question which Dwan said he posed to Van Kempen is the sort of question which I could imagine him asking. If he did ask it, whether it be of Van Kempen or Tregellas, I would take it to be a question without substance. It may be said that if it was otherwise, then in light of Van Kempen's alleged reply Dwan had a readymade way out of SSP - that is, by damaging the police vehicle - which he did not take. If he was desperate, and truly seeking to leave, why should he not have taken it? Surely the risk of prosecution was slight if the damage had been caused because the police would not do their duty and assist the release of an imprisoned man - that being Dwan's case..

1842 Apart from the evidence to which I have been referring, Ms Lees and Ms Epstein gave evidence that Van Kempen told them to go to their side of the banner. That evidently referred to an occasion when protesters were playing a game on SRR. I refer discretely to that matter later in these Reasons. In short, I conclude that the plaintiffs made no point in that connection.

1843 All in all, I would not conclude that Van Kempen was shown to be a witness in the defendants' camp. If anything, I would regard him as a witness whom the plaintiffs might have been expected to call. Certainly I would not draw any inferences unfavourable to the defendants by reason of their failure to call him.

1844 Fifth, conclusions which I have so far expressed show that the sweeping attack upon all the police officers made by plaintiffs' counsel was not justified. Whether it could be made out on some basis in respect of some officers requires further consideration. It is particularly necessary to consider Robinson's evidence; and evidence given by the protesters concerning Robinson, Tregellas and Gurrie. It is convenient to begin with evidence given by the protesters concerning Robinson's visit on 26 January.

1845 Dwan gave evidence of a belief that on 27 January Robinson met with himself, McFadzean, Ms Lees and Bowles.

[558]

In the course of a subsequent answer in the VCAT proceeding he had explained why that was so. [1061] Neither answer addressed the question whether any protester sought police assistance to leave; and, if such a request had been made, what the police response would have been.

1906 It was put to Robinson that his attitude when he was advised about the arrival of the Gross party, as revealed by his notes, gave the lie to his evidence that he was prepared to use police resources to assist the protesters to leave SSP. The witness gave very clear evidence why he took a particular position with respect to the Gross party. [1062] To my mind his evident frustration at the time was understandable. I do not consider that his attitude with respect to the Gross party derogates from his expressed position about the other protesters.

1907 The witness agreed, I think, that he did not say to the protesters at their meeting that if there was a problem with them leaving, the police would facilitate it. That was because the occasion did not arise, his state of mind being that the protesters "were completely happy to be there". [1063]

1908 Robinson also agreed that he did not tell his subordinates that the protesters only had to ask and they would be escorted out. Merry, he said, was well aware that was the situation [1064].

1909 It was put to Robinson that his true attitude, which was that he would not break the picket, was demonstrated by his note of a conversation with Tipler on the morning of 29 January. That note pertained to the latter's request that a satellite telephone be got in to the protesters. It records Robinson advising Tipler that the union would probably see it as breaking the picket. His viva voce evidence was that for a phone to be taken in might be viewed as something other than neutrality between the parties [1065]. That was compatible with the witness's stated position so far as the police were concerned.

1910 Robinson was questioned about the role of the police in the evacuation of Ms Jackson. The thrust of the cross-examination was that the real decisions were made by Ms Calvert, that giving the lie to the witness's evidence that the police would take action, on request, to take, or arrange for the movement of, a protester through the picket. Later in these Reasons I discuss the evidence in that connection, and conclude that it disclosed no such thing.

1911 The witness was also cross-examined to suggest that he had told Ms Calvert that the police would not break the picket line. Reliance was placed on a sentence in a diary note at 1430 hours on 28 January. [1066] He said that the note recorded what she had said. That may well have been the case. At various points in Robinson's notes it is difficult, I think, to discern who was the author of something noted; whilst at other times there is a shift from the first to the third person when apparently the speaker was the same person. Instances are his notes at 2312 hours on 28 January; and at 0800 and 0847 hours on 29 January.

1912 The witness was pressed whether he had made, or caused to be made, an inventory of what equipment the protesters had at SSP, or enquired what navigational equipment they had, what quantity of food and water was available, and the like. Put to him, in effect, that he found the questions funny, he said:

[560]

1913 It is now possible to state my conclusions about Robinson's evidence generally, and in doing so to express my conclusions as to the protesters' evidence of what they said to him on 26 January. In part I will repeat conclusions already expressed, so as to draw the matter together.

1914 First, speaking generally I formed the very definite opinion that Robinson was a reliable witness who attempted to give a true account of his involvement in the affair. He was pressed hard in cross-examination; not unfairly, but hard. He was accused, in substance, of being derelict in his duty, and of taking sides. There would be a tendency for a witness confronted in such a way to seek to justify himself, but in my opinion Robinson maintained in very large measure an appropriate detachment.

1915 Second, I formed the very definite opinion that in January 1999, Robinson believed, from what protesters said to him at their meeting, more likely than not in response to a question which he asked, that they intended to stay.

1916 Third, he could not possibly have formed that opinion if the various protestors had said to him what they claimed to have said in their evidence about wishing to leave. It follows that I do not accept their evidence in that connection; evidence which, it will be noted was not in a number of respects consistent from one witness to another.

1917 Fourth, Robinson did not ask the protesters why they intended to stay. His belief was, I think, that their intention was unrelated to any requirement that the protesters, Oren or TWS sign an agreement not to protest.

1918 Fifth, Robinson did not discuss with the protesters on 26 January the various alternative means that the police could take to assist them to leave. The occasion for him to do so did not arise.

1919 Sixth, it is likely that Robinson told the protesters that the police would be adopting an impartial, neutral position. That was what he intended the police position should be. It said nothing about what the police would do if the protesters requested assistance in leaving SSP intersection.

1920 Seventh, at no time until McFadzean spoke about imprisonment on 28 January had any protester said any such thing to Robinson; nor had he received any report of a protester saying such a thing. Robinson regarded what McFadzean said, I add, as part of the tactics of the dispute.

1921 Eighth, Robinson would have been prepared to use police resources to remove the protesters from SSP had any request been brought to his attention. The incident involving the Gross party does not tell to the contrary. Such action would have been achievable.

1922 Ninth, Robinson did not give instructions to his subordinates that the police should assist protesters to leave if requested to do so. He believed that Merry, particularly, knew that to be the situation.

1923 Tenth, the police roster, not compiled by Robinson, but probably seen by him, emphasised at several points the need for impartiality on the part of the police. That was compatible with a policy of refraining from active intervention if that was possible; and of attempting to mediate what Robinson perceived to be a dispute which underlay the events at SSP.

1924 Eleventh, Robinson believed at all times during SSP week that it was open to protesters to leave through the bush.

1925 In expressing those conclusions I have steadfastly kept in mind the circumstances, as I take them to be, that Robinson regarded forest protesters as at January 1999 with a jaundiced eye; and that he felt he was being messed around by the protesters' side in his attempts during SSP week to find a peaceful solution to the incident. I have made every reasonable allowance for the operation of such circumstances in evaluating the reliability of his evidence.

1926 With respect to the plaintiffs' "case" against the police, there remains for consideration evidence given by protesters about conversations with, and conduct of, Gurrie and Tregellas.

1927 Gurrie was present in the area on the afternoon of 25 January; and, according to the roster, on the morning shifts of 26 and 29 January and the afternoon shift of 28 January.

1928 Greig gave evidence that on the Monday afternoon he asked Gurrie if he was able to have freedom of movement for himself and his vehicle on SRR. Gurrie replied that he could not give any assistance to cross the picket line [1068]. Greig also gave evidence that Gurrie had attended on the Sunday night in answer to a report of his vehicle being damaged. Gurrie had said that if Greig had put himself in that sort of situation, that is what would happen [1069]. Again, Greig gave evidence that, probably on Tuesday, asked why the police were not escorting them out, Gurrie had said there was nothing the police could do [1070]. Finally, Greig said that he saw Gurrie eating with the loggers.

1929 Dwan gave evidence that on the afternoon of 28 January he told Gurrie of advice he had that it was illegal for the loggers to hold the protesters there. Bill Gross had said that such was the case. Gurrie went away, returned and said that the situation was unchanged, the union was calling the shots [1071].

1930 Ms Lees gave hearsay evidence of something said to her by Ms Dawson after the latter had approached Gurrie on the morning of 26 January. Ms Dawson gave no evidence of a conversation with Gurrie at that time.

1931 In all, apart from what seems to me to have been an unremarkable, if unsympathetic, remark allegedly made on the Sunday evening, the only person who gave evidence of making a specific request to Gurrie for assistance in leaving was Greig.

1932 Even if I concluded that Gurrie was a witness in the defendants' camp in a legal sense, I would draw no inferences unfavourable to the defendants by reason of their not calling him. Greig gave imagined or exaggerated accounts about many things which happened during SSP week. The fact that I have not accepted his evidence in many respects does not mean that his evidence in the present connection must be rejected. But his evidence with respect to a conversation with Gurrie on the Monday afternoon was intimately bound up with his account of what happened in the course of that afternoon. I think it would be unrealistic to segment out a fraction of that account, which I do not otherwise accept, and consider it probable. As to the conversation said to have taken place probably on the Tuesday, it seems unlikely to me, had a request for an escort been made, that it would not have been reported directly or indirectly by Gurrie to Robinson when the latter arrived later that day. I say "later that day" because, bearing in mind the fact that Greig and Fowkes went to Apollo Bay that day, it seems impossible that any such request could have been made after Robinson attended.

1933 Tregellas was the subject of pertinent evidence given by Greig, Ms Gross, Ms Lees, McFadzean, Ms Dawson and Ms Epstein.

1934 According to the roster, Tregellas was on duty on the nightshift which commenced at 11 pm on each of 26, 27 and 28 January.

1935 On 28 January McFadzean certainly complained to Robinson that Tregellas had not been paying attention to his duty. It seems very likely to me that the particular complaint related to the alleged failure by Tregellas to respond to a call for assistance by McFadzean on the night of 27- 28 January [1072]. Certainly Robinson did not note any complaint by McFadzean that Tregellas had denied requests by protesters to assist them in leaving SSP intersection.

1936 A few protesters gave evidence of making such requests. Sometimes that evidence was combined with evidence of other complaints or requests.

1937 Greig said that he believed that he made a request on the Tuesday morning. Tregellas replied that he would give no assistance in crossing the picket line [1073]. Greig gave similar evidence about an incident on the Tuesday [1074] but implicating Gurrie. It seems unlikely that Tregellas was at SSP intersection on the morning of 26 January.

1938 Ms Lees gave evidence that well into the night of 26 January she spoke to Tregellas about the noise level, about not feeling safe and requesting another police officer, and of asking if the protesters could leave. "It was refused." [1075] Tregellas told her about imprisonment in the Sudan, where he had been stationed with a United Nations contingent.

1939 Ms Dawson gave evidence of complaining to Tregellas on the nights of 26 and 27 January about harassment of the protesters [1076]. He asked her what she expected him to do. She also said to him that she could not understand why he was not doing anything when people were blocking a public road. In her experience people blocking a public road were arrested within hours [1077]. She gave no evidence that he responded to those questions.

1940 Ms Dawson also gave evidence that she asked Tregellas what did she have to do to leave, smash car windows so that he would arrest her? He replied that he could not do anything [1078]. Compare Dwan's evidence of a conversation with Van Kempen.

1941 Ms Epstein gave evidence that in response to her complaints about noise on the Tuesday night, Tregellas said that there was nothing he could do. There were many loggers, few protesters and one of him. The figures which he gave, according to her evidence, varied from the figures which Ms Dawson attributed to him.

1942 The evidence adduced by and for the plaintiffs does not lead me to conclude that Tregellas was in the defendants' camp. I think it is likely that protesters variously told him that they feared for their safety, that the loggers were making too much noise, and so on. I think it is well possible that he got fed up by the frequency and nature of the complaints which were made and that he did not answer a particular call for him to attend the plaintiffs' camp [1079]. I consider it not at all likely that protesters requested his assistance to leave in the middle of the night. If any protester did so, it is understandable that Tregellas might not have taken it seriously.

1943 In all, not only was Tregellas not shown to be a witness in the defendants' camp, the evidence given by the protesters seems to me to show, at its highest, that they made many requests and complaints to the policeman on nightshift duty; something which I can accept they did, but which does not determine the reality of the situation, still less that they were imprisoned and that there was no "police gate".

1944 In the event, the serious criticisms of police conduct generally made by plaintiffs' counsel in his closing address, bearing upon the question whether there was a "police gate", were far from being made out.

28 January: McFadzean and Ms Jackson leave SSP

1945 On 28 January, as I have noted earlier, both McFadzean and Ms Jackson left SSP intersection via SRR. McFadzean left in the morning. He was driven to Apollo Bay by Nowell, Chris Wheeler also being a passenger in the vehicle. Ms Jackson left in the afternoon, by ambulance. According to the plaintiffs' case, the circumstances attending their departure showed that it was the defendants, and in particular Ms Calvert, who decided whether a person could leave the area that week. According to the defendants' case the circumstances showed, to the contrary, that Ms Calvert and the defendants abided police directions. In my opinion the evidence tends in the latter direction; which is not to say that Ms Calvert did not have a role in ensuring that any police direction was abided, or in arranging transport for McFadzean. In the event, the circumstances of the departure of each of these plaintiffs offers some support for the defendants' case that there was a "police-gate" at SRR during SSP week.

1946 McFadzean left SSP on the morning of 28 January. He was then suffering from an eye problem.

1947 A deal of evidence was given by McFadzean and other protesters about the extent of the problem. The evidence was far from consistent. Some witnesses said that the problem involved both McFadzean's eyes, other witnesses that it involved one only. The descriptions by the witnesses of what they observed otherwise differed. There was, I think, some attempt to dramatise the situation.

1948 McFadzean gave evidence that by the Thursday morning he had developed an infection in one of his eyes. The eye was becoming increasingly inflamed and sensitive to light. He had discomfort. He spoke to a policeman, said that he had an eye infection and wanted to get out. A little while later Ms Calvert called him over to the barrier. He explained the problem and she said it was okay to leave [1080].

1949 Ms Calvert gave a somewhat different account. She spoke with McFadzean that morning. He said he had problems with his eyes. He wanted to go out and get them fixed. He requested to leave by road. He also said that he could represent the group at the anticipated meeting with Oren. She said she would arrange for him to be taken out along SRR.

1950 No doubt it was McFadzean who raised the question of his leaving. If, as he said, he initially raised the matter with a policeman, it suggests that he saw the officer as being of importance in determining whether he should leave along SRR. In any event, it seems very likely to me that when he spoke with Ms Calvert he raised the additional potential benefit which might attach if he left - that is, that he could represent the protesters at a meeting which it was anticipated might be held between representatives of Oren and the loggers. That was just the sort of thing that was likely to have influenced Ms Calvert to agree to him leaving by road other than in accordance with a police direction; and McFadzean was clever enough to perceive that it might do so. The question of a possible agreement with Oren was surely a matter then in Ms Calvert's mind, despite the prospect of agreement, as she knew, being at best poor. Agreement with Oren representatives would at one stroke bring about the end of the confrontation at SSP. A meeting was the precursor of any agreement. The prospect of a meeting had been bandied about for several days - which is not to say, and I do not conclude, that Oren representatives ever intended that there should be such a meeting.

1951 Whether McFadzean's eye problem was intrinsically so significant as to explain him seeking to leave SSP on the Thursday morning is doubtful. Certainly he was not long in Apollo Bay before alleging to Robinson, and almost certainly to representatives of green groups and the media - whether the allegation be true or false - that the protesters were being imprisoned. It is also clear, I think, that once in Apollo Bay McFadzean did nothing to facilitate the foreshadowed meeting. Nonetheless, whether or not he duped Ms Calvert into agreeing that he should leave along SRR need not be decided.

1952 The plaintiffs sought to make something of the circumstances of McFadzean's journey to Apollo Bay, and of things allegedly said in the course of the journey. McFadzean's account was, in effect, that he was to be driven to the Turton Track intersection, where he was to be collected by a conservationist. No conservationist was at the intersection. The driver did not stop. He was told that they were taking him back to Apollo Bay. He asked why they were taking the particular route. He was beginning to be very nervous about what was happening. He was told that it was a faster route. The journey took at least three quarters of an hour as against thirty minutes by another route. In the course of the journey Chris Wheeler said that they had deliberated whether to blockade the protesters in at SSP. They had hoped to blockade 30 or 40 including some of the ringleaders. They were having trouble controlling the blockade. Seventy or eighty people were coming at nights, and they wanted to deal with the protesters. The situation was getting increasingly unsafe. The protesters should sign the document. His response had been that the protesters should be allowed to leave, and that the loggers and conservationists could then discuss the broader issue of logging in the Otways [1081].

1953 On his account, Wheeler and Nowell dropped him off in the main street of Apollo Bay, he met someone, and that person took him to Deering's house.

1954 He got drops for his eyes, he said, from a nurse at the Clinic.

1955 Cross-examined, McFadzean adhered to his account of the conversation. He gave evidence that on another occasion, not at that time, he had said he had found out that he would be protesting against Chris Wheeler again when in the Otways. During the journey he may have said that the protesters were a very inexperienced group. He denied making certain other remarks.

1956 Further in cross-examination, McFadzean gave a different account of his arrival in Apollo Bay. He was dropped in the main street, he met Ms Nelson, she took him to the Clinic, then he went to Deering's home.

1957 Ms Nelson gave evidence of meeting McFadzean in the main street of Apollo Bay, outside the Sandy Feet Café. He had reddened eyes, and was puffy around the eyes. She said also that she did not take him to Deering's home [1082]. She gave no evidence of taking him to the Clinic.

1958 Chris Wheeler gave evidence about the journey and what was said. Nowell did not give evidence, and his failure to do so was not explained.

1959 I turn to Chris Wheeler's evidence. I note as a preface, Ms Calvert's evidence that she told Wheeler to drop McFadzean off wherever he wanted to go.

1960 Wheeler denied saying the things which McFadzean attributed to him. It was his evidence that they dropped McFadzean off at the Clinic. In the course of the journey he mentioned that McFadzean had quite a number of loose cannons in his group. He mentioned names. McFadzean said that in a normal situation those type of people would not be in the front line of a protest. They would be screened out. Other than that there was some mention of plantation logging [1083].

1961 Cross-examined, he denied that McFadzean was taken on a longer route because he, Wheeler, wanted to talk with McFadzean. He had heard about an agreement, but that matter was in Ms Calvert's hands. He had not seen a document at that time.

1962 I have reached the following conclusions, having considered the evidence of the witnesses upon the particular matter, the reliability or otherwise of their evidence generally, the circumstances in which the journey and conversation took place, and the defendant's failure to call Nowell.

1963 First, the fact that McFadzean was driven to Apollo Bay was unremarkable. Even on his account there was no conservationist at Turton Track intersection when they arrived there. I do not consider that the reason why the particular route to Apollo Bay was taken was likely to have been the reason suggested in cross-examination of Chris Wheeler. I do not believe McFadzean's evidence that he was put in fear.

1964 Second, it seems likely to me that McFadzean was dropped off at the Clinic. That was the obvious place for him to go in the event that he was complaining of an eye problem. McFadzean's evidence was internally inconsistent in respect of some aspects of that sub-issue. Ms Nelson's evidence supported his evidence in part; but on her account she did not take him to Deering's home (McFadzean's first account, though he did not name Ms Nelson); and she gave no evidence of taking him to the Clinic (his second account).

1965 Third, there is no evidence of any intention on the part of the loggers, before SSP week, to blockade 30-40 protesters. I do not doubt, however, that it would have suited the loggers very well to arrive in numbers when a large number of protesters including leading figures in Oren were protesting; and to impose a so-called picket if the protesters did not flee. I think it is likely that Wheeler said something to McFadzean along those lines.

1966 Fourth, I consider it likely that Wheeler did say something along the lines that those attending the loggers' camp were getting restive. In my view it is likely that he said it because he thought it would provide an incentive for McFadzean to recommend signature of an agreement. Wheeler did not have to know much about the subject to know that an agreement would bring the SSP confrontation to an end; and he had a coupe which needed to be worked.

1967 Fifth, I think it likely that Wheeler did make remarks about the protesters as he said, and that McFadzean replied along the lines alleged. Two experienced combatants were discussing a struggle.

1968 I turn to the circumstances of Ms Jackson's evacuation from SSP. On the morning of 28 January a request was made that she be evacuated from SSP because of ill-health. Evidence, which did not fit together, was given about that matter by, inter alia, Ms Jackson, Dwan, Ms Lees, McFadzean, Ms Dawson, Bowles, Kennerson and Ms Calvert.

1969 Ms Lees gave evidence that she discussed Ms Jackson's apparent unwellness with McFadzean on the Wednesday evening. She was, I interpolate, one of a number of protesters who gave evidence that Ms Jackson appeared to be increasingly upset as the week progressed. So to shortly describe their evidence is not by any means to discount its probative worth. In any event, about an hour after she realised that McFadzean had left, that being in the Thursday morning, she spoke with Ms Calvert of her concern about Ms Jackson. Ms Calvert's reply was that if Ms Lees was concerned the protesters should sign the agreement not to protest, and they could all leave. [1084] It was after that, as I understood her evidence, that the police were approached.

1970 Bowles gave a considerably different account. He heard Ms Calvert say to Ms Lees that Ms Jackson could not get out unless she signed the bit of paper. That was said in reply to Ms Lees asking Ms Calvert for an ambulance. [1085]

1971 McFadzean said that he mentioned Ms Jackson's condition to a police officer early that morning. He heard Ms Lees asking the police officer for an ambulance. [1086]

1972 Ms Dawson said that on the Thursday morning she told Ms Calvert that Ms Jackson needed to leave. The latter replied that if Ms Dawson was compassionate she would sign the agreement and Ms Jackson could get out. The witness believed that she said something about it not being right to blackmail a person about another person's health. Then she spoke to a police officer. [1087]

1973 Kennerson said that he went with Ms Lees to Ms Calvert to seek medical attention for Ms Jackson, who was almost in a trance-like state. Ms Calvert said that she could not help. Then they spoke to the police [1088].

1974 Dwan gave evidence of speaking both to a policeman and Ms Calvert. The latter said that the situation had not changed. Ms Jackson could go if she signed the agreement.

1975 Ms Calvert's account was that she was approached, as she recalled it, by Ms Lees and Dwan. They said that Ms Jackson had run out of medication that she was taking for some mental illness. It was their opinion that she needed to be taken out. She told them to take it up with the police, and that she would liaison with the police. She thought at the time that they were hoaxing. [1089]

1976 Her position was, she said, that if Ms Jackson wanted to leave through the picket she had to agree that she would not return. But if the police wanted to arrange to get her out, the picketers would obey police instructions. That is what she told the policeman who approached her thereafter.

1977 Having noted pertinent evidence, I can express my conclusions. First, I consider it very likely that the initial approach was made by protesters, probably Dwan and Ms Lees, to Ms Calvert.

1978 It is sensible that one or both of them would have approached her because what they were asserting, in substance, was that one of their number needed to leave SSP by road. Ms Lees, at least, was aware that McFadzean had left by road that day after complaining of an eye problem.

1979 Second, I consider it likely that Ms Calvert did refer the protesters who approached her to the policeman on duty. She was not willing to countenance a protester leaving via SRR without giving a personal commitment with respect to future protesting. On the other hand, her stated position was that the police were to be obeyed. It was compatible with that position that if the police, in respect of a protester the genuineness of whose complaint she was in doubt, were satisfied that such protester needed to be evacuated, and gave a direction, she and the other defendants would abide it.

1980 Third, I consider it is probable that Ms Calvert said to the protesters who raised the issue of Ms Jackson with her, particularly when she doubted the genuineness of what was represented, that if Ms Jackson was to leave by road, and subject to the protesters taking the matter up with the police, she must agree not to protest. In my opinion the protesters who gave evidence of what Ms Calvert said focussed only upon the one aspect of her response; and thereby misrepresented the entirety of what she said. I make no finding that their evidence was deliberately false in that connection.

1981 Fourth, it is apparent that the Jackson matter was taken up with the policeman then on duty. Ms Jackson gave evidence that she was possibly going to have a breakdown because of the treatment to which she had been subjected, and the sleep deprivation. She denied in her evidence that she had experienced depression, was on antidepressant medication, or had run out of such medication. She denied also saying any such thing to the police officer in attendance on the morning of 28 January. There is no doubt, however, that the officer's diary entry, which correctly recorded the home address of her parents, and her date of birth, recorded also that she was suffering because she had run out of her antidepressant medication. Dwan gave some improbable evidence about that entry. [1090] Compare Ms Lees' evidence. [1091]

1982 Fifth, Ms Calvert gave evidence of her conversations with the police officer on duty at SSP later that morning, and of speaking to Robinson. Robinson's file note of a conversation with Ms Calvert at 1150 hours that day [1092] is consistent with the position which Ms Calvert said she took. I consider that such was in fact the position.

1983 I go forward to the circumstances immediately surrounding Ms Jackson's evacuation. It appears that an ambulance was not called until just on 3 pm. Dwan gave evidence, I think in this connection accurately, that he asked a policeman to make a call after lunch, he would say at about 3 o'clock. [1093] There was evidence suggesting that Merry made the call for the ambulance. [1094] In any event, it left within minutes of being called, and arrived at 3.36 pm. It left SSP intersection at 4.13 pm with Ms Jackson as its only passenger. [1095] The journey each way was a little over 30 kilometres. All this appears from the ambulance report. [1096]

1984 The report completed by the ambulance officers states, in a section headed "hazards at scene", that "due to picket line and protesters, entry took some time." That could not sensibly support an argument that the loggers deliberately impeded arrival of the ambulance.

1985 The report contains a deal of material which in my view does not assist resolution of this litigation, or resolution of the more limited issues pertaining to Ms Jackson's evacuation. The material cuts both ways. I observe in passing that the report notes only two objective physical findings - Ms Jackson's pulse and blood pressure. They were, I think, unremarkable.

1986 Ms Jackson and a number of the protesters gave evidence that the sides of the ambulance were banged as it departed the scene; and that loggers yelled. [1097] Defendants denied that this occurred. [1098] I think that it would be remarkable, if such an incident had occurred, that the officers would not have recorded it in the hazards encountered section of their report; the more so when they had reported what must have been modest delay in getting to the scene by reason of "the picket line and protesters". I am not at all persuaded, considering that circumstance together with all the other evidence, that the protesters' accounts of the incident should be accepted.

1987 Ms Jackson was taken to the Clinic. She was examined and released. She gave no evidence of receiving any treatment following the examination. When she left, she was taken by a woman whom she did not know to a house where, inferentially. she rested.

1988 Put to her that the calling of an ambulance was "somewhat excessive", Ms Jackson replied "No, not at all." [1099] She did not deny saying to Dr Epstein that she felt the ambulance was excessive. His report [1100] notes that she made such a remark. If she had made such a remark, she said, then it was probably to do with her being ashamed that she left the group, and feeling weak about it.

[564]

1993 So far as I can see he was not crossed-examined about that evidence.

1994 I think it is likely that Ms Jackson did say what Molloy attributed to her. It does not necessarily mean that she was then making an accurate statement. For he had made a provocative remark to her, and it might simply have been a spur of the moment reply.

1995 All in all, a number of circumstances pertaining to Ms Jackson's departure from SSP are very murky indeed. Apart from the conclusions which I expressed a little earlier in these Reasons it is apparent, I think, that untruths were told about Ms Jackson having a medical condition and being in need of medication. It is not wholly clear who told the untruths. I also consider, contrary to the evidence of some protesters, that the episode did not involve bare heartlessness by Ms Calvert or gratuitous logger violence. Neither did it show the determining hand of Ms Calvert. So far as there was any delay in arrival of the ambulance, the evidence shows, I think, misunderstanding; nothing else. Further than that, the sequence of events beginning with Ms Jackson's attendance at the Clinic and culminating in her attendance at the Parliament House rally does not suggest that she was gravely affected by events at SSP - though Dr Epstein had something to say about her attendance at the rally in evidence to which I shall later refer.

Conclusions

1996 In my opinion there was a "police gate" to the picket throughout SSP week.

1997 Robinson would have opened the gate had any approach been made to him at the time of his meeting with the protesters. No such approach was made. No doubt he would have welcomed a long term solution to the problems involving protesters and loggers in the Otways. An agreement might have achieved that outcome; and certainly Robinson was keen to act as a mediator or go-between. But I do not consider that Robinson would have denied protesters police assistance to leave along SRR. At the very least, he knew that police actions were likely to be carefully scrutinised - and, indeed, that they were being scrutinised in fact; and he had no interest in deploying officers at SSP Track for an indefinite period.

1998 Robinson would also have directed that the police gate be opened had he received any report of a request by protesters at SSP for police assistance to leave along SRR. He received no such report. McFadzean did assert, on 28 January, that the protesters were imprisoned. Robinson took that to be tactics. In any event, he obtained a report of what was being said by protesters at SSP. The reports which obtained on the afternoon of 28 January and on the early morning of 29 January did not involve any request for police assistance.

1999 Whilst Robinson did not instruct Merry that there was a police gate, he gave evidence the substance of which was that he did not do so because he did not need to do so. I accept that evidence. The roster which Merry compiled, whilst emphasising the need for police neutrality, does not lead to a conclusion that Merry had some different understanding.

2000 Protester evidence of requests for police assistance to leave along SRR was quite extensive. In the case of Robinson and Johnson it was persuasively controverted. Indeed, the burden of what those two officers were told is that the protesters were staying where they were. Beyond that, I am satisfied that other alleged requests of which evidence was given for the most part were not made, or otherwise were made at a time or in circumstances which would not have encouraged the listener to believe that they were genuine. The circumstances that the protesters could not agree amongst themselves even by the Thursday night or the Friday morning whether they would go, and if so whether on terms or otherwise, increases the improbability that during the week there were multiple requests for police assistance to leave the area. The whole question of the relationship between the protesters and the police during SSP week, including allegations by protesters about what they said to policemen, needs to be understood, I add, in the context of the "them and us" attitude which I am satisfied that some of the protesters had towards the police before 25 January.

2001 Had evidently serious requests for assistance been made, I think it is improbable that they would not have fed up through the police chain of command at least as far as Merry. If he had been in doubt, it can be supposed that he would have sought direction from Robinson. In all, it is unlikely that such a request for police assistance would have languished unattended.

2002 Next, Robinson gave reasons why it would have been best to take the protesters out by police vehicles or bus. Such an arrangement should not have caused any problem. Robinson did not suggest that the protesters' vehicles would have been left unattended by the police. In any event, there would have been little reason for the loggers to stay once the protesters had left.

2003 For reasons earlier stated, neither the departure of McFadzean nor the evacuation of Ms Jackson deny the existence of a police gate.

2004 Robinson's reaction to the arrival of the Gross party, for reasons previously stated, does not tell against the existence of a police gate.

2005 The plaintiffs' change of position with respect to the conduct of the police ultimately put a case which in my opinion was not made out.

Separate areas

2006 Evidence was led that protesters who were on SRR, within the intersection, were told on one (or two) occasions to go back to their area either by defendants or by an attending police officer. This was said to have happened when some of the protesters were playing a game called "hacky sack." [1104]

2007 As I understand it, the evidence was led to show that the plaintiffs were confined to, or imprisoned within, their camp area; and thus to show that leaving along SRR was not an option. It may also have been led in an attempt to show that SRR was obstructed; or that the police were sympathetic to the loggers, this bearing upon the question whether there was a "police gate"; and just possibly, it was led to support the plaintiffs' evidence that they were fearful of logger violence.

2008 In my opinion the evidence took the plaintiffs nowhere. It was the protesters, most particularly Dwan, who proposed that there be separate areas for the protesters and the loggers. So long as the groups remained in the vicinity of the intersection, for whatever reason, that was a sensible course. The incident or incidents of which evidence was given occurred after separate areas were established. Such incident(s) cast no light upon the question whether, and if so on what basis, it was open to the plaintiffs to leave the intersection along SRR.

2009 The incident or incidents were themselves inconsequential. The plaintiffs' account was that they were innocently playing their game. Then loggers crowded around and told them to go back to their area, the police officer chiming in. On their evidence they were forced, as it were, back to their area. The defendants' account was that the protesters played their game in the vicinity of one of the generators, and interfered with it. It was, in effect, a provocation. The protesters were told to stop it and to go back to their area.

2010 To my mind, it matters not at all which version be correct. Distinct areas having been charted out, the protesters went into the loggers' area to play their game. Whether or not it was a provocation, they could hardly expect not to be told to go back to their area. It is not as if the protesters did not make their own complaints about loggers encroaching upon their area that week. So, for example, Chris Wheeler gave evidence that protesters complained about him walking through their camp when he was on his way down into the coupe. Their objections to him doing so caused him to beat a track through the bush north of SSP Track, which path he (and Nocera) took when going to the coupe. [1105]

2011 The protesters' objections to loggers entering or passing through their area - I am not be taken as accepting that in every instance loggers did do what was alleged - do not show that the former were blockading SSP coupe during SSP week; neither that they intended to stay at the intersection regardless of the defendants' conduct. What they do show is that during SSP week the plaintiffs had their own insistence on exclusive occupation of a particular area. That insistence underlines the point that nothing is to be made out of the incident(s) in which protesters were told to go back to their area. Such incident(s), one of which was said to have occurred on the Monday evening, did not deter Kennerson, I add, from going onto "the defendants' side" of the blue banner which was erected on the Tuesday afternoon. A photograph [1106] shows him so positioned. There is no appearance of fear on his face or in his bearing. A number of protesters appear to be amused.

29 January: circumstances of protesters' departure

2012 A number of the protesters gave evidence that Ms Calvert told them on the Friday morning that they were able to leave. [1107]

2013 This evidence was led, as I understand it, as constituting an admission that the protesters had been imprisoned during SSP week. It formed part of a sequence of evidence in which protesters said that loggers ran or stormed through their camp before setting up a picket line east of the camp on SSP Track; and told of being given a police escort in a convoy which set off from the intersection. [1108]

2014 Ms Calvert's account was that, at the stage when she gave instructions to lift the picket, she also instructed the men to set up a picket on SSP Track; and that she told Rofe it was now his job to clear the protesters. [1109]

2015 A few other defendants gave mainly inconsequential evidence about events which occurred on the Friday morning [1110]. A number of the defendants, I note, were not at SSP that day.

2016 I consider it unlikely that Ms Calvert said what was attributed to her. For the most part, at least, the pertinent sequence of events on the Friday morning is depicted in part of the Molloy video tape. [1111] It shows a number of loggers walking east along the north side of SSP Track amidst complaints by some protesters of invasion of their area; and then forming a picket line. It does not show loggers storming through the protesters' camp. It shows a policeman in close attendance. A female voice is heard saying "We'll let you go, go on." It seems clear to me that the voice comes from the protesters' camp. Ms Calvert is nowhere to be seen; and the voice does not sound like Ms Calvert's voice. The import of the remark was that the protesters would let the loggers go by.

2017 But suppose that Ms Calvert did say what was attributed to her. Then she would have given inaccurate evidence. Plaintiffs' counsel submitted that in a number of contexts lies had been told by defendants out of what would be called in the criminal context a consciousness of guilt. He submitted that the concept applies also in the civil law. [1112]

2018 Accepting that such is the law, the questions would then be whether Ms Calvert's evidence was deliberately false; and, if so, what conclusions should be drawn in the particular circumstances. Even if I was to conclude that she had given deliberately false evidence in the present instance, I doubt that it should justifiably be concluded that the same had been given out of consciousness that the protesters had been unlawfully imprisoned during SSP week.

2019 It remains to note, with respect to evidence concerning a police escort, that the same was apparently not a police initiative bespeaking a police perception that the protesters were at risk of harm. It was Dwan who requested an escort. His account of why he did so [1113] included an alleged concern on the part of the protesters that a further ambush might take place. Further, contrary to Kennerson's evidence that the escort was provided all the way to Apollo Bay, the burden of the evidence suggests that it was provided only to the intersection of Turton Track and the Forrest/Apollo Bay Road.

Conclusions

2020 First, throughout SSP week egress along SRR was available via a police gate. The evidence which I have accepted leads to the conclusion that such gate did not represent, at all, an unreasonable means of egress. Protester evidence which disputed the availability of that means of egress was unreliable. The circumstances of the departures of McFadzean and Ms Jackson do not tell against there having been a police gate. The same may be said of the agreement which was reached about the use of separate areas by the protesters and the loggers. Further, the circumstances of the protesters' departure on 29 January do not bespeak any admission by Ms Calvert that the protesters had been imprisoned during SSP week. That also bears upon the availability of a police gate.

2021 Second, although I am satisfied that the picket in fact did operate, and would have operated if challenged, as an act of persuasion, the key to the picket constituted by that circumstance was unknown to the protesters. They did not unreasonably fail to take advantage of that means of egress.

2022 Third, whatever be the reasons in fact why individual protesters did not sign no-protest agreements, the form of the agreement sought requires a conclusion that the means of egress offered thereby - it requiring ascertainment of the form of the document and then signing the same - was not reasonable.

Leaving through the bush

The physical component

2023 There is clear evidence that, for some people at least, travelling overland from SSP to Turton Track during SSP week was achievable. I have already noted those who made the journey and on what days.

2024 A question arises whether that was a reasonably available means of egress in the case of each plaintiff. Pertinent to answering that question is the physical difficulty of the journey, which must be considered in the context of the characteristics of each plaintiff including any infirmity that the plaintiff might have had, and considered also in the context of the suitability of the person's available clothing and footwear.

2025 I earlier estimated the distance of the journey as being something in excess of 1.5 kilometres unless the traveller moved along the strip of relatively flat land which runs parallel and fairly close to SRR; and I gave some description of the topography. I said also that my description was incomplete. That takes me to an examination of the evidence of those who made the journey.

2026 Greig and Fowkes were the first persons to do so that week. They left and returned by different routes on 26 January. On their outwards journey they were accompanied by Jaskierniak and Ms Douglas. On their return journey they were accompanied by Ms Gross.

2027 Fowkes gave the appearance, both in 1999 and at trial, of being a fit young man. That appreciation fits in with his previous employment as a carpenter and joiner and as a rouseabout. Remember also his ability to ascend a bipod. The clothes and footwear which he wore during SSP week consisted of jeans, a short-sleeved shirt, a jumper and sneakers. [1114].

2028 Greig, both in 1999 and at trial, appeared to be a much less robust individual than Fowkes. His employment history up to 1999 did not suggest the contrary. On the other hand, he claimed to have an experience with bushwalking that he understood Fowkes did not possess [1115].

2029 Jaskierniak, to judge from photographs put in evidence, was in his twenties in January 1999. Photographs in evidence show him wearing a long-sleeved shirt and long trousers. Greig gave evidence that he lent Jaskierniak a pair of sandals before the journey began. [1116]

2030 Ms Douglas, to judge from photographs and video tapes put in evidence, was a woman in her early twenties in January 1999. One photograph shows her wearing a short-sleeved shirt and (probably) trousers.

2031 Ms Gross, 21 or 22 years of age in January 1999, was then a shop assistant and jewellery maker. She created no particular impression of athleticism as depicted in photographs taken at that time. Apparently she was a mild asthma sufferer. She made the journey wearing a pair of shoes which Ms Nelson lent to her, a pair of pants and short-sleeved t-shirt or top. She must also have carried a jacket with her.

2032 The next person to make the journey - he did it both ways - was Molloy. He did so on the Wednesday morning. He gave no direct evidence of what he was then wearing. Photographs put in evidence [1117], though not taken that day, imply the likelihood that he was wearing boots and a singlet. In those photographs he is shown wearing shorts. In cross-examination he agreed that he wore shorts during the week. [1118] I see no reason to doubt that evidence. Molloy would have been aged about 40 (he is now aged 45) in January 1999. He was a long-time timber worker, and I would take him to have been a fit man.

2033 It is convenient, before going further, to say something about the physical characteristics of the other plaintiffs and about the clothing and footwear that they wore that week. I will not recapitulate what I have already said about their ages, and about their prior employment and other activities.

2034 Ms Jackson, as depicted in January 1999, appeared not to be a very robust person. On the other hand, she experienced no difficulty, it appears, in walking into and out of SSP coupe on 24 January. That journey, down and up hill, was made on tracks that probably had quite uneven surfaces - but not akin to the bush. Her clothes included long trousers, a jacket and sandals.

2035 Dwan was not quite 39 years old as at January 1999. He referred in his evidence to doing hard days' work, in connection with thereafter using cannabis. Just what the work entailed was not made clear. Certainly he attended a number of protest actions over the years. A deal of walking both in coupes and on tracks was probably involved. He gave evidence that at SSP he had cotton pants, a t-shirt, a thin jumper, perhaps a leather jacket, a beanie and Blundstone boots [1119].

2036 Ms Lees, whatever her past problems with alcohol and other drugs, appeared to be quite a fit young woman as at January 1999. Her recent protest actions had included walking into coupes and spending protracted periods at particular protest activities. She gave evidence of making what must have been quite a long walk, certainly exceeding two kilometres, in company with Ms Dawson and Kennerson on 27 January. [1120] The walk, necessarily up and down hill, was evidently made on tracks of differing types and quality. At SSP she had walking boots, woollen leggings, cotton and woollen jumpers [1121].

2037 McFadzean, as depicted in January 1999, gave the impression of being quite a fit young man. He wore glasses, but nothing turns on that for present purposes. He had evidently attended many forest protest actions before January 1999, implying some level of physical fitness. At SSP his clothes included a long-sleeved shirt, long trousers and boots [1122]. He had a compass and a topographical map.

2038 Ms Dawson was another person whose recent experience in forest protests bespoke a certain level of physical fitness. At SSP she had a pair of boots, [1123] long trousers, a long-sleeved shirt and vest [1124].

2039 Ms Dawson gave evidence that on 24 January she was suffering from a tropical ulcer on her right foot. It got worse during the week. By the Friday it was much more painful. The ulcer made it very difficult to walk and, "by the end of it" to wear shoes. [1125] It was dressed by an ambulance officer, she said, on 28 January. [1126]

2040 Ms Dawson made mention of the tropical ulcer when she attended the Clinic on 29 January. The nurse recommended that she attend a doctor the next day. It is not clear that she did so. There is evidence, however, that on the preceding Wednesday she made quite a long walk, necessarily up and down hill, in company with Ms Lees and Kennerson. Again, on the Friday she was wearing a boot or shoe on her right foot. [1127] Further again, on the following Monday she was standing and moving without evident discomfort when she attended the rally outside Parliament House in Spring Street. For completeness sake, the ulcer in its early stage did not prevent her from walking into and out of SSP coupe on 24 January.

2041 Ms Dawson evidently did suffer from a tropical ulcer during SSP week. There is a real question, however, whether its effect was ever such as would have precluded her journeying through the bush to Turton Track.

2042 Bowles was another plaintiff experienced in protest action. He was not unused to discomfort. He had recently spent protracted periods locked-on under a vehicle. As depicted in January 1999, and as at trial, he was a thin man, not well-built. By his account he was asthmatic. [1128] Cross examined why he had not left SSP by walking up SRR, he replied:

[566]

His clothes at SSP included, photographs show, a long-sleeved shirt and long trousers. In one photograph [1130] he is depicted barefooted.

2043 Ms Colson gave evidence that she did not attempt to leave through the bush because she did not have bushwalking experience, had weak ankles and was too scared. She made no mention of inadequate clothing or footwear. Her weak ankles did not prevent her walking six to eight kilometres at Riley's Ridge not long before SSP week, nor prevent her running after the truck involved in the incident near the base camp, nor prevent her walking into and out of SSP coupe on 24 January. None of those walks was in the bush; but none bespeak particular difficulty in movement, even on surfaces that in some instances were probably uneven.

2044 Ms Epstein was evidently equipped whilst at SSP with long trousers, a shirt, a jumper, a cardigan and a hat. She wore shoes or boots. [1131] She gave evidence that she made no attempt to leave through the bush because she was afraid of loggers in the bush and was afraid that she could not do the walk. Asked about previous experience in the bush, she volunteered that she had been lost in the bush for five days in New Caledonia several years earlier. [1132] I did not understand her to say that the incident to which I have just referred, about which she gave no detail, caused her not to attempt the journey to Turton Track. I do not understand why it should have done so if she had travelled with a person equipped with a topographical map, the more so a person equipped with a compass.

2045 I return to describe the persons who made the journey between SSP and Turton Track during SSP week. The last group comprised Bill Gross, Forrester, Sarah Gross and the Dutch tourist.

2046 Bill Gross is a man, I should say, now 50 or thereabouts. In January 1999 he was living on a 160 acre farm, but his main activity was in property investment. He had been a dairy farmer. He made the journey to SSP carrying a number of items for his daughter, Donna. He mentioned a tent, a sleeping bag, some warm clothes, a rain coat and some food.

2047 Forrester, who was aged 22 in January 1999, is an artist and furniture designer. Before January 1999 he had experience of bush walking in the Otways. He made the journey to SSP wearing jeans, a t-shirt, and Blundstone boots. It being drier than he had anticipated, he removed a japara and oilskin trousers during the journey. He wore a backpack. He estimated its weight at 30 kilograms. [1133] I think it likely that this was an over-estimate.

2048 Sarah Gross was not quite 19 in January 1999. On her account she was then of average fitness [1134]. Her father said that she was not all that fit, and had not spent a lot of time in the bush. [1135] She made the journey wearing, inter alia, walking boots, light trousers and raincoat; and carrying a backpack.

2049 Bill Gross gave evidence that the Dutch tourist had been engaged on a voluntary work scheme. He was aged between 18 - 22, and was very fit.

2050 What approximate length of time did the journey take? How difficult was it? In my opinion the evidence permits the following conclusions: first, the journey could evidently be made by different routes. Greig and Fowkes took different routes on 26 January. Molloy took different routes on 27 January.

2051 Second, the length of time which the journey took would certainly have been influenced by the route taken. A journey made through the forest close to SRR was likely to have taken a shorter time than a journey made much further to the east. Again, a journey made partly through areas that had been logged in 1996/7 and 1997/8 was likely to have taken a shorter time than a journey made wholly through forest. Again, the physical fitness of the travellers, and whether or not they had and could use a compass, and whether they had and could use a topographical map, were all matters that would come into play.

2052 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.

2053 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. [1136] On his account he left at maybe 9 - 10 am 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. [1137] 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.

2054 Greig and Fowkes gave an account of the period which they spent getting to Turton Track which is inconsistent with my conclusions. Even allowing for the fact that they were accompanied by a man wearing sandals and a young woman, and even accepting that they first came out onto SRR south of the Turton Track intersection, and that they then retreated into the bush, Greig's estimate that the journey took four and half to five hours, [1138] and Fowkes' estimate that the journey took, he thought, four hours [1139] were just not credible. Their evidence generally about the times at which different events occurred that day and about just what they did was both internally inconsistent and inconsistent one with the other. There are numerous examples. Two of them are the time at which they set off from SSP, [1140] and what they did whilst in Apollo Bay. Again, the burden of their evidence was that the return journey took about two hours. [1141] Yet that was made after the rigours of the outward journey, with more goods in their backpacks, and in the company of an asthmatic young woman. [1142]

2055 I turn to the difficulty of the journey. Here again I mention the submission of counsel for the plaintiffs that evidence given by Greig and Fowkes and by members of the Gross party about the difficulty of the journey was not subject to cross-examination. Literally, the submission was correct. Evidence of the difficulty of the journey was not directly attacked. What defendants' counsel did do, however, was challenge the estimates of time that the journey took, elucidate the physical characteristics of the various travellers - their age, sex, fitness and apparel - and elucidate what the travellers carried with them. Further, the evidence given by Greig and Fowkes of injuries which they suffered - cuts and so on - could be compared with the complaints made and observations recorded at the Clinic on 29 January. Again, comparison could fairly be made of the descriptions of difficulty given by the various witnesses.

2056 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:

[568]

2057 Forrester was a young, fit man. But he was carrying a backpack which on his account was quite heavy, and also a japara and oilskin trousers which he had discarded. His evidence was consistent with that given by the much older Bill Gross, [1144] who was also burdened by a backpack. See also the evidence of Sarah Gross, a young woman of at best average fitness, without much experience in the bush, and also wearing a backpack. [1145]

2058 I have not referred to the evidence of Greig and Fowkes in the present connection. I consider that, insofar as it departed from the burden of Forrester's evidence, it was not reliable and would not advance an understanding of the difficulty of the journey.

2059 In all, the difficulty of the journey as I apprehend it is consistent with estimates of it taking, as a generality, about two hours.

2060 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.

2061 The only plaintiffs about whose physical ability to make the journey I have entertained any doubt were Ms Jackson, because her footwear was sandals [1146] and Ms Dawson, because of her foot ulcer. It appears, however, that Jaskierniak made the journey whilst wearing sandals; and the extent of Ms Dawson's disability is doubtful in light of matters to which I have earlier referred. I should add that I have not been at all persuaded that the weak ankles of which Ms Colson gave evidence would have made egress through the bush unreasonable for her.

Reasons given by the plaintiffs for not leaving through the bush

2062 Of the eleven plaintiffs, those who on their own accounts made no attempt to leave through the bush during SSP week [1147] were Ms Jackson, Ms Gross, Dwan, Ms Lees, Ms Dawson, Bowles, Ms Colson and Ms Epstein. Of the remainder, Greig and Fowkes left the area and returned on 26 January; and McFadzean attempted to leave the area on 26 January in the incident which involved Kennerson.

2063 All of the plaintiffs gave evidence why it was that they did not attempt to leave; or, in the case of Greig and Fowkes, why they did not attempt to leave on a second occasion. In a moment I will summarise the reasons which they respectively gave. It will become apparent that in a substantial number of instances plaintiffs gave reasons that depended upon evidence which I have earlier rejected; or that depended upon a belief being allegedly held which, I have earlier concluded, could not be sheeted home to conduct engaged in by the defendants. Beyond that, it is necessary to carefully bear in mind the fact that mere recitation of reasons, if repeated often enough, may tend to convey an impression that the reasons must have substance. That is not so. An unsound reason, often repeated, remains unsound; just as the converse is the case.

2064 In addition to describing the reasons which the various plaintiffs gave for not attempting to leave through the bush I will mention, shortly and not exhaustively, other evidence which they gave of logger conduct which allegedly caused them to be fearful; that is, evidence of conduct inducing fear which the particular plaintiff did not plainly identify as a reason for not attempting the journey. I will do so in case I have mistaken the true intent of the plaintiff's evidence; and in any event because, if a particular plaintiff was fearful by reason of circumstance A, it might be said to set a context in which circumstance B provided the immediate reason why a journey through the bush was not undertaken.

2065 I should add this: I intend to say no more about the allegations of logger violence, focussing upon Arbuthnot's conduct, before 25 January. I have earlier expressed conclusions about the impact of that conduct upon the protesters [1148]. Beyond that, so far as I can see no plaintiff plainly identified fear allegedly generated by that conduct as a reason for not attempting to leave through the bush. It is unnecessary, in the circumstances, to decide whether, if there had been fear deriving from such conduct, it could be relied upon by the plaintiffs against the defendants to justify the plaintiffs not attempting to leave through the bush.

2066 I should also add this: Greig and Fowkes gave evidence why they left their camp to travel to Turton Track on 26 January, what they did after they were picked up by Tipler and Ms Nelson, and why they returned. I will note that evidence in this section of my Reasons but discuss it later. Potentially, it is able to cast light on the intentions of individual protesters, and of the protester group, at times during SSP week.

2067 In this section of my Reasons I will not only outline the reasons which the various plaintiffs gave for not attempting to leave through the bush, and evidence which they gave of other conduct allegedly engendering fear, I will consider what part of that evidence, if any, should be accepted. In doing so I will not address a different, and relevant, question - that is, whether the reasons advanced were the true reasons why the particular plaintiff did not attempt to leave through the bush.

2068 Ms Jackson gave evidence that, after seeing the incident which she described involving Jaskierniak and Ms Dawson on 25 January, she did not consider attempting to leave through the bush. She did not want to be caught by the loggers [1149]. She also gave evidence that her past bushwalking experience had been on well defined paths and with the right footwear, clothes and equipment. She had never been in bush such as was at the end of the coupe. She had no map, no compass and no sense of orientation; nor the right footwear. Also, she thought that someone told her that the terrain was very steep [1150].

2069 Ms Jackson gave evidence also of being fearful because of the operation of chainsaws at night. She did not relate that fear to not attempting to leave through the bush.

2070 In my opinion none of the reasons which Ms Jackson advanced why she did not attempt to leave can withstand scrutiny. First, I have already discussed the physical component of the journey, and specifically have concluded that it was not beyond Ms Jackson.

2071 Second, it is the fact that Ms Jackson, personally, did not have either a map or compass at SSP. But there were maps and there was a compass. They were adequate to permit travel to and from Turton Track, which was not a long journey. Sensibly, had Ms Jackson decided to leave through the bush, she would have done so in company with a person or persons capable of reading a map and compass.

2072 Third, if Ms Jackson was dissuaded from leaving the area because of some overstated account of the difficulty of the journey offered by Greig or Fowkes, such overstatement stands apart from conduct of the defendants.

2073 Fourth, apart from the uncertainties of the Jaskierniak incident generally, Ms Jackson's account of the same - it involving an allegation that both Jaskierniak and Ms Dawson suffered injuries - was very probably unreliable. Ms Jackson's evidence that she was made fearful by an incident of which she gave an unreliable account should not be accepted.

2074 Fifth, bear in mind also the fact that the Jaskierniak incident occurred on 25 January, and that thereafter Greig and Fowkes left and returned through the bush, Ms Gross accompanying them on their return. Those circumstances, of which Ms Jackson could not have been unaware, were a powerful confirmation that travel through the bush was possible without loggers being encountered. That was the fact, whatever might have been said about loggers' patrols by Greig, Fowkes, or loggers.

2075 Sixth, any fear of non-existent loggers' patrols engendered by something said by Greig or Fowkes could not be laid at the defendants' feet.

2076 I turn to Greig. As I understand his pertinent evidence, having made the journey to and from Turton Track, he did not think he could do it again. Such had been its difficulty. Indeed, he had been very afraid before making the return journey. He doubted if he could go back in [1151]. When on Turton Track on the outwards journey he had been fearful of being apprehended and caught by patrolling loggers [1152]. Moreover, he knew that he was not allowed out [1153]. Further again, on the night of his return Molloy had said to him:

[570]

Finally, as to loggers' patrols, he gave the evidence of common knowledge to which I have earlier referred.

2077 That specific evidence apart, Greig gave much evidence of being fearful whilst at SSP. He was "absolutely terrified" when the windows of his car were broken on the Sunday night [1155]. From the Tuesday night he was "too scared" to sleep in his car [1156]. Speaking more generally, he said that on the Tuesday and Wednesday there was "a feeling of fear in the camp" [1157]. On the Wednesday and Thursday the prevailing mood was "absolute fear, total uncertainty" [1158].

2078 I now refer to Greig's evidence as to the circumstances in which he and Fowkes made their journey on 26 January, what they did at Apollo Bay, and why he returned.

2079 It was always his intention, Greig said, to return to the camp. There were many reasons. He had to go back for his car, his dog and his possessions. He did not want to leave his companions behind. He had told his companions that he would get back and tell them he had rung their parents. He had to tell his companions what was happening [1159].

2080 As to what he did having arrived at Turton Track, Greig gave evidence that after being picked up by Tipler and Ms Nelson they drove to the Mt Sabine camp. There he called his brother and told him to call the police; or may have asked his brother to do so [1160]. Driven to Apollo Bay, he made more phone calls, went to the health food shop where he met Ms Gross, then to an op shop where he bought some warm clothes and waterproof pants, then to a supermarket, and then to the Oren office, where he showered.

2081 Later in his evidence, contrary to his earlier account, Greig said that he did not make phone calls whilst in Apollo Bay. He did not have time. He asked others to do so. Again, having given evidence that one of his reasons for returning was to tell his companions that he had rung their parents, he later said that he had probably been asked to make phone calls by others, but that he did not have time [1161]. He was, he said, rushing to get back. They had made contact with the outside world and people knew what was happening to them [1162].

2082 Put to him that there were circumstances of which he was aware that showed that the "outside world" knew what was happening, Greig replied:

[572]

2083 On his account, Greig did not speak to Whitehead whilst at the Oren office [1164]. He had not met Whitehead before. Whilst he was in the office there may have been persons there other than Ms Nelson.

2084 It is evident that Greig's evidence about what he intended to do having made the outward journey, and of what he did do, was not always consistent. Further, some of it was improbable. Further again, as will be seen, some of it conflicted with Fowkes' evidence.

2085 I return to the reasons given by Greig why he did not attempt to leave through the bush after 26 January. They may be summarised as the difficulty of the journey, fear of patrolling loggers, knowledge that he was not allowed out, and a specific threat made by Molloy on the Tuesday night. In my opinion those reasons definitely do not withstand scrutiny.

2086 First, Greig gave a highly coloured account of the difficulties of the journey.

2087 Second, loggers' patrols were not the fact, and Greig had no proper reason for believing the contrary. I have rejected his evidence about unsuccessful attempts to leave through the bush on earlier occasions. His experience on the journeys to and from Turton Track contraindicated patrols by loggers. Moreover, his experience whilst at Turton Track on the outwards journey was against there being any such patrols. For on his account several vehicles had passed by before he and Fowkes were picked up by Tipler and Ms Nelson. Had the earlier vehicles been patrolling loggers' vehicles, that surely would not have occurred - particularly as, if Greig was to be believed, he had dirt and blood and grime on his face when he attempted to hail them down [1165]. Finally, insofar as Greig relied upon any remarks by loggers to found what he described as "common knowledge" of patrols, such remarks were inconsequential.

2088 Third, Greig's alleged knowledge that he was not allowed out, he speaking of the situation after his return, stood in stark contrast to what had in fact taken place.

2089 Fourth, whatever remark Molloy made surely was not made on the Tuesday night; and the implication in Greig's evidence that he took it at face value could not, for reasons previously discussed, be accepted.

2090 Ms Gross gave evidence that Ms Calvert told the group, some day during the week, that it could leave through the bush. The group response was that due to the difficulty of the walk and as well loggers having said that there were people in the bush, they did not see it as a feasible method of getting out with all their equipment as well [1166].

2091 Ms Gross also referred in her evidence to a version of the Molloy remark and of death threats made by an unidentified logger or loggers [1167]. She further said that she was aware that Kennerson and Donato had attempted to get away; and she referred to the difficulty of the inwards journey and to her mild asthma.

2092 Let me assume that the reasons said to have been given on behalf of the group why its members could not leave through the bush, or the witness's own experience of the journey, or the witness's knowledge of the Molloy remark and other threats, or any combination of those matters, should be understood to explain why Ms Gross did not attempt to leave through the bush. Upon that assumption, I do not accept that they show that leaving through the bush was not a reasonable means of egress for her.

2093 First, I have already commented upon the physical demands of the journey, and have concluded that they were not unreasonable for any plaintiff.

2094 Second, if there was a group response [1168], and if the response mentioned that loggers had said there were men in the bush, and if that was intended to convey belief by the protesters that they would not be permitted to leave through the bush, or would be subjected to violence if they did so, then in my opinion far too much was sought to be made of remarks made by loggers. Moreover, the actual experience of Greig, Fowkes and Ms Gross was opposed to there being loggers' patrols, let alone reason to fear violence at the hands of such loggers.

2095 Third, for reasons previously indicated, I do not accept that the Molloy remark or the night time threats to kill caused a protester to fear for his/her own safety.

2096 Fourth, Ms Gross had no equipment at SSP.

2097 Dwan gave evidence of exploring the possibility of walking out to the south. That was the only direction which he thought was safe. To travel north would have necessitated travelling close by SRR. There were loggers in the bush. It would have been very difficult to pass them by. To the south, however, there was no passable route. He estimated, also, that it was a two day walk to Apollo Bay, travelling south [1169].

2098 The witness further gave evidence that he would have felt very vulnerable by himself in the bush. He would have been fearful to walk out because of blackberries, drop-offs, snakes and so on. In addition, he did not feel that he wanted to desert his friends; and he thought that his car would be damaged if he left it there.

2099 Again, Dwan gave evidence that he did not believe some members of the group were capable or fit enough, or had the right equipment, to make the long journey to Apollo Bay. There would have been difficulty in carrying sleeping gear. Had they left in large numbers it would have been obvious, and he feared being pursued through the bush.

2100 It will be remembered also that Dwan gave evidence of seeing loggers in the bush spying on the women protesters, of a frightening encounter with Flannigan in the bush, of encountering fishing wire, and of an incident on 25 January when loggers told him to go back to his camp. He further gave evidence of being put in fear on the Thursday afternoon in the incident involving the Gross party [1170].

2101 My resume of his evidence shows that Greig advanced almost every imaginable reason why it was not reasonable for him to have left through the bush during SSP week. It is extremely difficult to take what he said at face value; and, even taking it that way, impossible to discern out of it support for his general proposition. The following considerations are pertinent: First, his proposition that the only safe way to leave through the bush was by a physically impossible two day trek south to Apollo Bay was simply setting up a straw man. Turton Track was a relatively short distance to the north, and it was not obligatory, contrary to Dwan's evidence, to travel to Turton Track only by travelling close to SRR.

2102 Second, Dwan's reliance on loggers' patrols as a reason for not leaving was, for reasons previously discussed, not tenable; neither any suggestion implicit in his evidence that he was fearful of logger violence in the bush.

2103 Third, Dwan was a man who regularly entered the bush by himself. It seems improbable that he would have been fearful of the incidents of bushwalking - blackberries, rough terrain, the risk of encountering snakes.

2104 Fourth, had the protesters departed as a group through the bush, it is true that their path would readily have been discernible. That was of no consequence unless Dwan believed that loggers would offer the group violence during such journey. I do not accept that he had any such apprehension. If he did, then it was unfounded on any rational consideration of the circumstances. I do not consider that the defendants should be held liable for an irrational belief founded upon a distorted and unreasonable view of the circumstances.

2105 I should add this: Assuming for argument's sake that Dwan or any other plaintiff was truly concerned for his or her safety in the event of leaving through the bush, that person could always have informed the on-duty policeman of an intention to leave through the bush, heading for Turton Track, a journey of about two hours. Such a communication surely would have induced the policeman to contact his superiors. The protesters, had they thought about it, could not but have foreseen such a sequence of events. Moreover, it was inevitable, had they thought about it, that the officer in charge would have been anxious at least to ensure that there was no breach of the peace, as by assault by a logger upon a protester, in the course of the journey. For the protesters knew not later than 26 January that Oren was aware of the SSP incident; and it followed that the police, most particularly the officer in charge, could not have been unaware that police conduct was under scrutiny.

2106 In fact, had the situation which I have been discussing transpired, it is very likely that Robinson would have contacted Ms Calvert, emphasising the importance of there being a true means of egress; and that Ms Calvert, at least because she would have been anxious to avoid herself or the union facing any legal proceedings founded upon allegations of violence, would have instructed the loggers accordingly. That is not to say that the protesters should have foreseen that sequence of events. The point is simply this: that had plaintiffs truly apprehended a risk of logger violence in the bush, a communication to the policeman on duty at SSP intersection of their intention to leave through the bush, and their destination, should sensibly have alleviated such concern.

2107 Fifth, I return to the reasons which Dwan gave for not leaving through the bush, I note that various matters which he said caused him to be fearful of the loggers either (as I have concluded) did not happen, or were inconsequential.

2108 Sixth, Dwan's asserted concern for the safety of his vehicle, if truly held, and if there was reason to fear for its safety, would tend in favour of a conclusion that a means of egress which was only available by leaving his vehicle at the intersection was not a reasonable means of egress.

2109 It is the fact, which runs in favour of Dwan having a reasonably held concern, that the vehicles of Greig and Donato had been damaged on the night of 24 January. On the other hand, the damage to those vehicles was inflicted before the arrival of Ms Calvert, before the picket was established, and before the loggers agreed to act in consonance with the protocol.

2110 Next, I have concluded that on the night of 27-28 January McFadzean's vehicle was struck by small stones thrown from the loggers' side of the banner; and I have noted Ms Garrett's evidence, not the subject of cross-examination, that Donato's vehicle was rocked and pounded on its right-hand side on the Wednesday night; also her evidence that on the Tuesday night "rocks" were thrown against it.

2111 The evidence pertaining to vehicles apart, there was some evidence of "rocks" being thrown at the protesters' tents during SSP week. There was, moreover, evidence of attempts to remove tent pegs or to kick down the tents. [1171]

2112 I have already concluded that small stones thrown by loggers struck McFadzean's vehicle. I should accept that the same thing happened in the case of Donato's vehicle and the protesters' tents. That conduct took place whilst protesters were within the vehicles or tents, and as a means of annoying or inconveniencing them. The object was not one of damaging property. McFadzean's account of damage to his vehicle was not corroborated, I add, by viva voce or other evidence.

2113 I next refer to the incident, involving Arbuthnot [1172], which occurred on the Thursday afternoon. It occurred very late in the course of the week. Its capacity for inducing an apprehension of damage to property in the event that the property was left unattended was extremely limited. It could not have influenced Dwan to be concerned for his vehicle at any preceding time, just as the incident in which stones struck the vehicles of McFadzean and Donato could have had no such antecedent effect. Moreover, the Arbuthnot incident occurred whilst, it seems, the policemen on duty were occupied down SSP Track.

2114 Then consider the probabilities of what would have happened had the protesters left as a group - it matters not whether along SRR or through the bush. The reason for the loggers remaining at SSP Track would have disappeared. There would have been no one for the loggers to inconvenience. It is unlikely that loggers, with work to do, would have stayed. But for so long as they stayed, and, indeed until the protesters had later come to collect their vehicles and possessions, it is highly likely that a police presence would have been maintained. That is what Robinson said would have happened had the protesters been assisted to leave along SRR. He spoke about ensuring "the security of the vehicles" [1173]. If only because he was aware that police conduct was being scrutinised, it is likely that Robinson would have provided adequate security.

2115 The protesters, so far as I can see, did not enquire what the police would do about protecting their possessions in the event that they left through the bush. There was no reason, if the protesters had wished to leave through the bush, and intended to do so, why they should not have asked the police to protect their possessions; and no reason why they should not have believed an assurance that protection would be afforded. Nor did the few incidents which occurred after the night of 24/25 January sensibly imply that the police would be unable to provide security for the protesters' possessions for so long as was necessary.

2116 In all the circumstances which I have discussed, I do not accept that Dwan's asserted concern about his vehicle gave reason why leaving through the bush was not a reasonable means of egress.

2117 Ms Lees recalled, as she said, Kennerson, Greig, Donato and Fowkes returning from attempts to leave on the Monday. On that day Dwan alerted her to there being people in the bush, and she heard rustling; whilst Jaskierniak told her that he and Ms Douglas had been thrown to the ground [1174].

2118 On the Tuesday, Ms Lees said, Kennerson told her that there were a lot more men in the bush than on the previous day; and Donato told her of having climbed a tree and having been surrounded by people [1175]. Further, McFadzean told her, that morning, that he had been put in a car and brought back.

2119 On her account, she did not see Greig and Fowkes leave the camp on 26 January. She was aware that Jaskierniak and Ms Douglas were in the camp that morning; but not in the afternoon.

2120 On 28 January, according to Ms Lees, Ms Calvert said that they could evacuate Ms Jackson through the bush; but she explained to Ms Calvert, inter alia, that there were men in the bush [1176].

2121 The witness expressed some doubt in her evidence about her ability to make the journey out. She did not know the country well enough to confidently say that she would get out to a safe place.

2122 Summarising her state of mind on 26 January, Ms Lees said that she understood the situation to be that the protesters could not leave along SRR or through the bush [1177].

2123 Before going on, I should mention some other matters which Ms Lees said caused her to be fearful during SSP week, and occasions on which she was fearful, albeit that she did not implicate them as bearing upon her belief that she could not leave through the bush. She gave evidence of being very anxious about being trapped in the bush [1178], being uncomfortable on the Tuesday night, it being Australia Day and there seeming to be quite a number of loggers present [1179] and of being more fearful on the Wednesday than the Tuesday night by reason of the noise and yelling [1180].

2124 I return to the matters which Ms Lees particularly identified as causing her to believe that she could not leave. They consisted almost entirely of assertions made by other protesters; and some observations which she claimed to have made.

2125 So far as the assertions of other protesters are concerned, what Kennerson allegedly told Ms Lees about loggers' patrols was not justified by the facts; neither the gist of what Dwan told her on the Monday. Again, what Jaskierniak allegedly reported to her was unsupported by the evidence. Donato's account of having been surrounded whilst he was up a tree had nothing to do, so far as the evidence reveals it, with an attempt by him to leave the area. Again, what McFadzean told her was generally accurate, viewed from his perspective; but it bore only upon leaving via SRR.

2126 Turning to observations, Ms Lees gave evidence, as I have said, of witnessing the aftermath of attempts by a series of people to leave through the bush on the Monday. The persons whom she identified either gave no evidence at all, gave no evidence of any such attempt, or gave evidence about an attempt which I have rejected.

2127 Starkly by contrast with Ms Lees' evidence of her alleged observations and fears was the certain fact that, notwithstanding that she did not see them leave, she knew of the journey made by Greig and Fowkes, just as she knew of the departure of Jaskierniak and Ms Douglas and the arrival of Ms Gross. Further, she had direct experience of the longish journey which she, Ms Dawson and Kennerson, together with all the dogs in the camp, made on 27 January. A number of circumstances of which she knew told against the journey to Turton Track being too difficult, or too difficult for women, or too difficult for people wearing light clothes or light footwear; whilst the circumstances to which I have just referred strongly told against there being loggers' patrols in the bush.

2128 In all, I cannot accept that Ms Lees believed during SSP week that she could not leave through the bush. But if she did, then it was a belief which she not only held in defiance of facts, but was also reliant upon her alleged observation of events some at least of which did not happen, and upon assertions the unreliability or irrelevance of which was readily perceivable.

2129 McFadzean gave evidence of what he said were two attempts to leave on 26 January. He gave evidence also of a conversation with Greig and Fowkes after their return, and of coming to an understanding that it certainly looked as if the walk was as difficult as his topographic map suggested [1181]. Speaking of his conversation with Robinson, he gave evidence of telling the latter that he had been prevented from leaving the bush and that loggers were patrolling the bush to prevent protesters doing so.

2130 The gist of the witness's evidence, as I perceive it, was that having made two unsuccessful attempts to leave, and having been apprised of the difficulty of the journey through the bush, and of loggers patrols, he had reached the conclusion that such a method of egress was not really available.

2131 Apart from evidence directly pertaining to leaving through the bush, McFadzean gave general evidence of having been put in fear during SSP week. So, his fright and anxiety was such, on his account, that he did not take his contact lenses out at night. Again, he, Ms Dawson and Ms Epstein were extremely frightened and distressed by the incident involving his vehicle on the night of 27-28 January. Further, noise and abuse so frightened him on the night of 26-27 January that he did not get out of his vehicle and speak to the policeman on duty.

2132 McFadzean's first attempt to leave, assuming for argument's sake that he made it, was close to SRR. He learned from it. Hence the route he took with Kennerson. So long as that journey was in the bush, nothing untoward occurred. The problem arose when he emerged onto SRR.

2133 So far as loggers' patrols are concerned, the witness gave evidence of referring to the same in a conversation by Robinson. I am satisfied that no such conversation took place. If, nonetheless, McFadzean had a belief that there were loggers' patrols in the bush it did not represent the fact and, in any event, should not be ascribed to the conduct of the defendants. Whatever few remarks loggers made were at odds with actual experience - at least other than in close proximity to SRR. Moreover, it would not follow that McFadzean believed there to be a risk of violence if loggers encountered protesters in the bush; and I do not conclude that he did so.

2134 The other incidents which McFadzean said made him fearful, and the extent of the fright and anxiety which he described, did not on his account bear upon his belief that leaving through the bush was not a reasonably available option. I pause only to note that I have earlier concluded that one of the incidents, so far as it occurred, did not make McFadzean extremely frightened and anxious as he claimed; and to note my conclusion that his evidence about the other incident, and about the extent of his alleged fright and anxiety, did not carry the ring of truth.

2135 Ms Dawson gave evidence that she believed Ms Calvert said that the protesters could leave if they went through the bush. But that was not an option. She was very scared what the loggers would do if they caught her in the bush [1182]. She mentioned also the account of their journey given her by Greig and Fowkes - its difficulty, and the presence of patrolling loggers. Other matters she mentioned were her unfamiliarity with the area, her tropical ulcer, and a report by Donato on 25 January that he could not leave and that there were loggers in the bush.

2136 Speaking more generally, and not specifically addressing a belief that she could not leave through the bush, Ms Dawson gave evidence that she was very fearful when she saw Flannigan at SSP, of being frightened of the loggers who were holding her against her will and intimidating her, of being scared for her life by the Wednesday morning, and of sleeping in McFadzean's car on the Wednesday and Thursday nights because she was so scared. She agreed that at times she may have yelled abuse at the loggers, but said that most of the time she was scared.

2137 The gist of Ms Dawson's evidence, as I perceive it, is that she made no attempt to leave through the bush principally because she was fearful of logger violence. That was necessarily connected with her having a belief that there were loggers in the bush. What Greig and Fowkes probably told her in that connection was unfounded, and should not be made the responsibility of the defendants.

2138 But assume that conduct for which the defendants were responsible had caused Ms Dawson to believe that there were loggers in the bush. She having been jammed between the boom of the coupe gate and the front of Donato's vehicle on 24 January, should she not have anticipated violence if loggers encountered her in the bush? Was not that the greater risk because the vest which she sometimes exposed to view had on it a patch which was very offensive to loggers?

2139 Notwithstanding the unusual circumstances of the incident which occurred on 24 January, I consider that Ms Dawson would have had reason to fear logger violence upon the postulated assumption. But the assumption cannot be made. There is, of course, an antecedent question - whether she had the fear of which she gave evidence. In that connection Ms Dawson's conduct during SSP week might well lead to a conclusion that she had no such fear.

2140 Bowles gave evidence that Greig and Fowkes described the terrain after they returned. Following that conversation he did not consider doing what they had done [1183].

2141 Later in his evidence, Bowles said that he is an asthmatic and not a great bushwalker. He did not know how to use an orienteering compass. Asked about his ability to read a map he responded that he had no problem [reading] a Melways.

2142 Other than the matters to which I have just referred, Bowles gave evidence that the loggers made it clear they were looking for the protesters, and would not let them past if they were found. He said that Molloy made that clear in the pig hunter remark, which he overheard from a distance of 15-20 feet.

2143 Bowles also referred to seeing the Jackson incident on 25 January, and to Jaskierniak and Ms Dawson returning that day. Those incidents caused him to believe that he could not get out, and it scared him [1184].

2144 I am quite satisfied, as I said earlier in these Reasons, that Bowles had the physical capacity to make the journey to Turton Track. Further, any journey from SSP was likely to have been made by protesters in company. The question of his asserted compass and map-reading inadequacies was unlikely to arise.

2145 I do not accept that Bowles believed that he was likely to be subjected to logger violence in the event that he attempted to leave through the bush. If he did, however, hold such a belief, it was held in defiance of the facts. That is a powerful reason for concluding that he did not hold it. Five matters are pertinent. First, as I have said a number of times, there were no such patrols, and the defendants should not be held accountable because fevered imaginations perceived the contrary. Second, it is a related matter, the actual experience of those who travelled through the bush for lengthy periods was not an experience involving contact with loggers - violent or otherwise. That is an important circumstance which Bowles - if his evidence that he feared logger violence was to be accepted - must have put to one side. Third, if Bowles relied upon the pig hunter remark, in context it could not sensibly bear the connotation he sought to give it. Fourth, the Jackson incident occurred on SRR, did not involve violence, and said nothing about leaving through the bush. Fifth, Bowles' account of the Jaskierniak incident was much overblown.

2146 I note, for sake of completeness, that Bowles was another plaintiff who said that he was put in fear by incidents of which he made no mention when giving evidence why it was that he did not leave through the bush. He gave evidence of being scared by what he heard loggers saying on the Monday night [1185], and of being kept scared by what Arbuthnot said on 28 January [1186]. His account of events on the Monday night was, I have concluded, wrong in a number of respects. I later conclude that his evidence of being put in fear by what Arbuthnot said was unreliable.

2147 Fowkes gave evidence that he did not attempt to leave on the Monday because he was frightened of what might happen if he was caught in the bush or if he tried to walk into the throng of people. He gave account of incidents involving Donato, Jaskierniak and Ms Dawson [1187].

2148 On 26 January, Fowkes said, he did not think that he and Greig would get out. The loggers had patrols in the bush [1188].

2149 That day, the witness said, he returned to the camp because Ms Colson was still there, likewise his dog [1189]. In the course of the return journey he heard - I have earlier referred to this evidence - noises in the bush.

2150 His belief on the Wednesday night, he said, was that the protesters were imprisoned. They could not walk out through the bush or up the road. There was nothing they could do. Ms Calvert, he said, told him that, many times; though he then added that she would not answer him when he spoke to her [1190].

2151 Fowkes gave other evidence of being fearful on 24 January and during SSP week. He was very frightened by Chris Wheeler in the incident at the coupe gate. He feared recapture when he and Greig arrived at Turton Track on 26 January. He was very afraid when Molloy made the pig hunter remark. He was too scared to sleep on the Tuesday and Wednesday nights. He believed the whole time that there was going to be violence at any moment [1191]. He explained his repeated abuse of loggers as an attempt to scare them from acting violently towards him, an attempt made because he was scared.

2152 Conveniently, as in the case of Greig, I refer to aspects of Fowkes' evidence about the trip to Apollo Bay on 26 January. He said that their leaving was preceded by a discussion involving most of the protesters. It was to the effect that they had to get out and let somebody know what was happening to them [1192]. It was, he said, his idea to go with Greig. He just wanted to tell someone on the outside, and get back.

2153 After being picked up on Turton Track by Tipler and Ms Nelson, the witness said, they went first to the Mt Sabine base camp. He had no recollection of any phone call being made whilst they were there. He, the witness, saw Ure at the camp. He did not tell Ure when he expected to be out again, nor to do anything for him, nor accompany him to Apollo Bay [1193]. He collected no clothes whilst at the camp; he was not thinking straight.

2154 At Apollo Bay, they went to the Oren office. That was where, as he recalled, they met Ms Gross [1194]. They spent 15-30 minutes at the office. Greig spoke to Whitehead, whilst he sat on the step [1195]. There was no discussion about obtaining legal advice, or about wrongful imprisonment. Whilst in Apollo Bay they did not go to the op shop.

2155 Fowkes' account of what occurred at Apollo Bay diverged substantially from the account given by Greig. The significance, if any, of the divergence, and the place of the journey undertaken by Greig and Fowkes on 26 January in coming to an understanding of the intentions of individual protesters, and the protester group, at particular times during SSP week must later be considered.

2156 I return to the reasons assigned by Fowkes for his not attempting to leave through the bush other than on 26 January, and the reason assigned for his return.

2157 It is really not possible to accept Fowkes' evidence that he feared to leave through the bush on 25 January. His asserted fear implicitly derived from incidents involving Donato and Jaskierniak that day. Fowkes gave unreliable evidence concerning Donato. His evidence of what he saw of the Jaskierniak incident varied. It seems likely to have been influenced by the photograph, Exhibit AC. Particularly that is so having regard to the vantage point that Fowkes described. For reasons which I have given, what is known of the Jaskierniak incident does not permit a conclusion that it involved restraining or violent conduct by a logger or loggers.

2158 Further as to the fear which Fowkes said he had on the Monday, it is the fact that on the following day he undertook a journey through the bush. The import of his evidence was that he volunteered to do so. It might be argued that he undertook the journey out of desperation, despite being fearful, because of a need to inform the outside world what was happening. But such an argument would face real difficulties.

2159 Food and water were brought into the protesters' camp on 25 January, after the picket was established. Fowkes probably agreed in his evidence that he knew food had been brought in [1196]. The fact that food and water were brought in was certainly known by Ms Epstein; and probably by Dwan. Fowkes said he was unaware that Ms Gross and Ms Nelson had brought food to the picket line on 25 January. Let that be accepted. Nonetheless, from what he knew, and from what was known by one or more of the other protesters, the inevitable conclusion was that the food and water had been brought to the picket by sympathisers. That conclusion was the more compelled by the circumstance that McFadzean had obtained an assurance on 25 January that food and water would be let in through the picket. It beggars belief that Fowkes did not apprehend, before he set off on 26 January, that the protesters' situation, speaking generally, was known to the outside world. There is, in fact, much evidence that the outside world did know of the plaintiffs' version of the incident as at 25 January. I have referred to it already. But I have not taken that evidence into account, of course, in reaching the conclusion just expressed.

2160 Fowkes' conduct in undertaking the journey on 26 January, in the event, was not readily consistent with it being undertaken despite fear of the presence of loggers, and logger violence, in the bush. In so concluding I have put to one side, for the moment, the question whether that journey was made in fact for a reason different to the reason assigned by Fowkes.

2161 I go to Fowkes' evidence of his belief as at the Wednesday night. It was not credible. First, in the context of his evidence it depended upon statements by Ms Calvert - whether or not directed to him - which I am quite sure she never made. Second, insofar as it may have depended upon him having a belief about the existence of loggers' patrols, his evidence provided no basis for him forming such a belief. Third, insofar as his asserted belief was dependent upon him having a fear of logger violence engendered by some aspect of the incident which occurred on 24 January, or by other described incidents which occurred during SSP week up to and including 27 January, I simply do not accept his evidence that he was put in fear by any such incident.

2162 Almost completely, then, I reject Fowkes' evidence as to the reason why he did not attempt to leave through the bush on 25 January, and as to his state of mind on the Wednesday night. There is, however, one aspect of his evidence which I do accept. Whatever be the reason why he travelled to Apollo Bay on 26 January, I am satisfied that he did return because Ms Colson and his dog were still at the camp.

2163 Ms Colson gave evidence that on the Monday afternoon she formed the belief that she was not free to leave. Ms Jackson reported that the loggers would not let her leave. The loggers brought in equipment. Molloy said that the protesters were not allowed to leave through the picket or through the bush [1197].

2164 Speaking of 26 January, Ms Colson gave evidence that Fowkes described the difficulty of the journey on his return. He told her that there was no way she would have been able to go through the bush. She formed a belief to that effect [1198].

2165 The witness gave evidence that Molloy's pig hunter remark was conveyed to her by Fowkes; and of her reaction to it.

2166 Asked why she did not attempt to leave through the bush, the witness replied that she had no bushwalking experience, weak ankles, and was too scared. In the last connection she was told, she said, that the bush was being patrolled; and she was scared of breaking bones [1199].

2167 Ms Colson gave evidence, as did other plaintiffs, of being put in fear by incidents to which she did not refer when explaining why she did not attempt to leave through the bush. In that connection she gave evidence, inter alia, of being scared of the threat made by a logger on the afternoon of 24 January, and of night time threats made by loggers that the protesters were all going to die. I have discussed those incidents earlier [1200].

2168 Returning to the reasons given by Ms Colson for her forming a belief that she was not free to leave, it should first be noted that the Jackson incident at most said something about ability to leave along SRR.

2169 Second, I accept Ms Colson's evidence that the fact that loggers brought in equipment caused her to believe that they intended to maintain the picket. But again, that spoke about SRR and its very near vicinity.

2170 Third, I am sure that on 25 January Molloy did not say to Ms Colson what she attributed to him. It is quite inconsistent with his position that he should have done so. I do not think that any other protester gave like evidence.

2171 Fourth, I accept that Fowkes told her what she attributed to him; and that she formed a belief that she could not leave through the bush in consequence of what he said. But I am also satisfied that the journey was not in fact one that was beyond her reasonable physical capacity. The situation, as Fowkes described it, was exaggerated; and her belief, in consequence, ought not be made the responsibility of the defendants. That is so even if Fowkes was being truthful, from his perspective, when he told Ms Colson that, in effect, the journey would be beyond her.

2172 Fifth, I do not accept, for reasons previously stated, that Molloy's pig hunter remark induced fear of logger presence/violence in the bush.

2173 Sixth, Ms Colson's alleged lack of bushwalking experience was unlikely to have been relevant to any journey through the bush; for surely it would have been made in Fowkes' company.

2174 Seventh, even if Ms Colson believed that there were loggers in the bush, I do not accept either that she feared violence from the same, or had reason to fear violence.

2175 Ms Epstein gave evidence that she did not attempt to leave through the bush because she was afraid of loggers in the bush and was afraid that she could not do the walk [1201]. Her latter fear was founded upon what Greig told her on his return.

2176 Ms Epstein said also that she really had no navigational skills, did not really know how to use a map and compass, would "not be able to navigate with orientation skills" and had previously been lost in the bush in New Caledonia [1202]. I did not understand her to mean that her experience in New Caledonia made her afraid to enter the bush in the Otways.

2177 The witness also gave evidence of other sources of fear during SSP week. So, for instance, she described feeling scared when, as she claimed, Nocera stuck his tongue out and moved it up and down whilst looking at her [1203]; and she was scared by the fact that Arbuthnot was going to be there, as she said she was told by Sheppard in response to an enquiry which she initiated.

2178 I return to the reasons assigned by Ms Epstein why she did not attempt to leave through the bush. In my view, it is improbable that she ever believed that there were loggers in the bush - at least otherwise than in close proximity to SRR. The journeys made by Greig and Fowkes on 26 January told to the contrary. So did journeys made by McFadzean, Kennerson and Donato that day. Again, the longish walk undertaken by Ms Lees, Ms Dawson and Kennerson on 27 January told to the contrary. Further, I note than on 26 January Ms Epstein together with Ms Jackson went for a walk down to what the former described as "the bottom of SSP road", travelling to "a clearing with a whole lot of piles of logs" [1204]. It appears that she and Ms Jackson must have travelled as far as what I have called "the top landing", or else to the western log landing in the 1998/99 coupe. I have estimated the distance from SSP intersection to the former at a little more than 500 metres, and the distance from the intersection to the latter at not less than 1250 metres. Ms Epstein gave evidence that the walk down took 5 to 10 minutes. Perhaps they walked to the top landing. In any event, she gave no evidence of encountering any logger in that walk. Neither, it appears, did fear of loggers in the bush deter her from making the walk in the company only of another woman.

2179 Absent a belief that there were loggers in the bush, no belief of risk of violence by such persons could have been formed. But even if Ms Epstein did believe in the presence of such persons, I do not accept that it could have led her to apprehend a risk of violence.

2180 Next, I very much doubt that Ms Epstein formed the belief, based upon what Greig told her, that the journey was physically beyond her. I do not doubt Greig's capacity to dramatise the difficulty of the journey; but any rational person would weigh what he said against the certain fact that four people, including one woman and a man wearing sandals, had travelled to Turton Track through the bush that day; and that three people, two of whom were making a return journey, and one of whom was a woman, had travelled through the bush from Turton Track. If, however, Ms Epstein did form a belief that the journey was beyond her, based upon what Greig told her, then I consider that the defendants should not be held accountable.

2181 Finally, Ms Epstein's expressed doubts about her ability to navigate a distance of something less than 2 kilometres through the bush had little application to the reality of the situation at SSP. I have already said why that is so. In any event, I do not conclude that in fact those expressed doubts had anything to do with Ms Epstein not attempting to leave. That was not the tenor of her evidence.

The plaintiffs' case against the sixth defendant

2182 The only specific reference in the statement of claim to the sixth defendant, Colin Arbuthnot, is in particular (mm) to paragraph 5. There it is alleged that on the afternoon of 28 January Arbuthnot said to one of the other protesters, within the hearing of Bowles and Ms Epstein, that

[574]

2183 I have earlier referred to the content of Arbuthnot's defence. I will not repeat it, save to recall that he admitted, in effect, being at SSP intersection on the afternoon of 28 January, and pleaded a different version of what then occurred.

2184 By the time the matter came to trial Arbuthnot was unrepresented. He attended Court on various occasions during 2003, but not at all this year. He was present during some at least of the evidence of Ms Jackson, Greig, Forrester, Bill Gross, Dwan, McFadzean, Ms Dawson, Ms Epstein, Dr Epstein, Kennerson and Mrs Jackson. He did not cross-examine any of those witnesses. In some instances, as I have earlier noted, any matters which he would have wanted to address were incidentally raised in cross-examination by counsel for the other defendants.

2185 The only evidence of Arbuthnot's presence in the vicinity of the SSP intersection between 25-29 January was given by Bowles, Ms Epstein, Kennerson, Ms Calvert and Dent. It concerned what was apparently his short-lived attendance in the latter part of the afternoon.

2186 The evidence of Ms Calvert and Dent was to this effect: Arbuthnot was one of a relatively few people who were to be screened out at the Turton's Track intersection from going down to the SSP intersection. The arrangement broke down and he was allowed through. Dent went to retrieve him. By the time Dent arrived at SSP, Arbuthnot was already in a vehicle ready to go. As Ms Calvert travelled down SRR towards SSP to attend the arrival of Bill Gross and his companions, she saw Arbuthnot and his wife in a vehicle on the way out.

2187 The evidence given by and for the plaintiffs of what Arbuthnot did in the short time he was in the vicinity of SSP intersection was not in all respect consistent.

2188 Bowles gave evidence that another person, whom he identified by a photograph as "porn star" tried to kick down the protesters' tent. Then he, Bowles, went down SSP Track with gear for protesters. When he returned Arbuthnot was speaking to Kennerson. Arbuthnot said that the last bloke that pissed him off got an axe through the head. Kennerson looked rather shocked, and moved away. Bowles said nothing about Arbuthnot participating in damage to the protesters' tent, or belongings; but, inferentially, he was not present at all times that Arbuthnot was there.

2189 Ms Epstein gave evidence that she ran back to the camp on the Thursday afternoon after being down SSP Track. She saw Bowles, Kennerson and Arbuthnot. She heard Arbuthnot say

[583]

He, Kennerson, said that he would be waiting, told Arbuthnot to leave again, and Arbuthnot left. [1206]

2191 Ms Garrett said that she ran back to the protesters' camp for a second time. Two men from the loggers' side were trying to rip down the camp - pulling out pegs and ripping down tarps. One of the men said that he was the one who had smashed Whitehead up, that he enjoyed every minute of it and that he was going to come back and chop them all to pieces. [1207] The man who said that was in the vicinity of the camp for 15 to 20 minutes. She did not remember Kennerson brandishing a cricket bat. Some part of the time they were standing and yelling; and at other times walking around and yelling. Some of the time the men bent down to pick up a peg. One of the tarps came down. Bowles and Kennerson were with her at the time. Bowles continued to make a meal for the entire time. Kennerson was standing out in the storm. She didn't speak to the police about the incident. What was pulled down was a tarpaulin erected at the back of the tent, a tarpaulin put up at night and taken down during the day. The man who referred to Whitehead went away by himself. [1208]

2192 I consider it probable that Arbuthnot made a comment to the general effect of which Bowles gave evidence. Ms Epstein's version added a reference to Oren. Perhaps that was said. Nothing much turns on it.

2193 I am confident in rejecting Kennerson's account of five to eight people including Arbuthnot ransacking the protesters' tent. Kennerson gave a great deal of evidence which I consider was quite unreliable. I have referred to other parts of that evidence elsewhere in these Reasons.

2194 The only area of doubt in my mind is whether some attempt was made by Arbuthnot and one other person to disrupt the protesters' camp as Ms Garrett described. I consider it likely that something was attempted in that connection, but that it did not get very far. I so conclude despite the conflict in evidence called for the plaintiffs, and although it does seem surprising that, on Ms Garrett's account, Bowles continued throughout the alleged incident to cook a meal, whilst Kennerson stood out in the storm. Note also the specific allegation made by particular (mm) to paragraph 5 of the statement of claim. It could not be said, speaking generally, that the particulars to paragraph 5 are otherwise than expansive.

2195 As to the duration of the incident involving Arbuthnot, I consider that it probably did not exceed 15 to 20 minutes; and that only a fraction of that time was taken up by threats by Arbuthnot.

2196 So much for Arbuthnot's presence at SSP. There was no evidence that he attended any relevant meeting, or that he otherwise had any awareness of the objectives of whatever occurred at SSP, or that he was aware of any protocols applicable to the conduct of those on the loggers' side.

2197 There was, as I have noted elsewhere in these Reasons, a good deal of evidence of Arbuthnot's conduct on earlier occasions towards protesters. That evidence was received as bearing upon the apprehension of violence at the hands of loggers that various plaintiffs said they had during the week. It might also be taken to indicate that, in general, he was ill-disposed to protesters, and would have been in favour of action designed to get them out of logging coupes. But that is far from saying that anything which he did on 28 January fitted either of the allegations made by paragraph 45(a)(b) of the statement of claim.

2198 Of the plaintiffs who overheard what Arbuthnot said to Kennerson, only Bowles said that it did have any effect upon him. It

[585]

2199 There was no evidence that what Arbuthnot said was reported to any other plaintiff - the first step to such person thereby being put in fear.

2200 In my opinion, the plaintiffs have not proved that Arbuthnot acted with the other defendants and other loggers in furtherance of a common design to commit the various torts of which the plaintiffs complain; nor that he actively authorised, provoked and/or caused those torts. Nothing shows that he should be fixed with responsibility for any act done by some other person either before or after the Thursday afternoon. Neither should the other defendants be fixed with responsibility for what he said or did on the Thursday afternoon. The mere fact that he was temporarily at SSP does not justify such a conclusion; the more so in circumstances where I accept the evidence of Ms Calvert and Dent that this was, in effect, the consequence of a breakdown in a screening process.

2201 Further, the only evidence of any plaintiff being put in fear by Arbuthnot's remark was given by Bowles, he not being the person to whom the remark was directed. I am not satisfied that he was put in fear. Elsewhere I have remarked upon what I consider was the unreliability of his evidence. This was, I consider, another example of that unreliability. The measure of his alleged fear may be gauged by the evidence of Ms Garrett that throughout the time Arbuthnot was in the near vicinity Bowles simply continued to cook a meal.

2202 In the event, the plaintiffs' case against Arbuthnot fails.

The plaintiffs' case against the thirteenth defendant

2203 The statement of claim raises no discrete allegation against the thirteenth defendant, Brian Wheeler.

2204 According to the submissions of counsel for the plaintiffs, I should find that this defendant, I use the language of paragraph 45 of the statement of claim, actively authorised, promoted and/or caused each of the torts of which the plaintiffs complain; and acted in concert with the other defendants and other loggers in furtherance of a common design to undertake each such tort. I should so conclude in light of the admissions in the defence that each defendant engaged in peaceful protest, that "no additional exculpatory facts were pleaded, none were opened", that counsel for the defendants had opened that Ms Calvert was spokesperson for Brian Wheeler amongst others in saying that the plaintiffs were not able to leave through the picket, that there were several photos of him at SSP, and that there was video footage of his presence. Further, according to counsel, it was for Brian Wheeler to have pleaded the physical infirmities of which he gave evidence, particularly the hearing loss which he claimed had impaired his ability to hear what was being said on various occasions. The infirmities, counsel submitted, were not in any way corroborated. [1210]

2205 A little evidence was adduced by the plaintiffs' side pertaining to this defendant. First, Ms Dawson gave evidence, doubtfully, that he was present at the incident at SSP gate on 24 January. [1211] Fowkes said that was not the case. [1212] Plainly, in fact, he was not there. So far as he was identified in part exhibit I [1213], the identification was wrong. The man thought to be Brian Wheeler was in fact Wilson.

2206 Second, there was some evidence that he is depicted in three photographs which were probably taken on the Monday; [1214] and he is shown on the sidelines in the Nocera videotape. [1215]

2207 Brian Wheeler is an elderly man who gave evidence that he cannot hear at all in his left ear and has impaired hearing in his right ear not assisted by use of a hearing aid. The problem on the left side, he said, had been present for 10 years. It had been picked up when he had a brain tumour. His hearing in the right ear had been impaired since his last big operation, around seven years ago. He gave evidence of having particular problems when there is background noise.

2208 In January 1999, he said, he was working for the Otway Logging Company at Forrest, working from the DNRE office. On Monday 25 January he went to SSP at about 3 o'clock -

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2227 Mr Wheeler presented as a most unusual witness, both in his manner and his choice of language. He certainly appeared to be deaf. Those things said, I consider it near certain that his evidence accurately revealed his lack of understanding of, and participation in, the events of which the plaintiffs complain. I am positively satisfied that he knew nothing about the objectives of whatever it was that was done at SSP, assuming that there were clearly defined objectives. I am positively satisfied that he attended the intersection only for three short periods, and that whilst there he said or did nothing which was intended to or did constitute conduct of the kind alleged by paragraph 45(a)(b) of the statement of claim. I am positively satisfied that he had no conception that "the union" was in charge. He made it clear that he was not union minded, and so would be unlikely to accept a union-inspired dictate. Assuming it to be the fact that he is depicted in exhibits J, AL or AO, his role is shown to be no more than that of a passive onlooker. The same may be said of his fleeting appearance in the Nocera videotape. The admissions made on his behalf in the defence (ie: of participation in a peaceful protest) carry the plaintiffs nowhere. The alleged admissions in counsel's opening, about which I have already dealt in some detail, could not withstand the impact of the witness' evidence, evidence to the receipt of which no objection was taken.

The plaintiffs' case against the sixteenth defendant

2228 Wayne Andrew Benson is the sixteenth defendant. He was one of three men by that surname who were briefly referred to in the evidence. He worked in the timber industry in the Otways as a cartage contractor. [1227]

2229 There was no oral or other evidence that Benson ever visited SSP intersection in the period 24 - 29 January; or even that he visited the intersection of Turton Track and SRR. There was no evidence that he attended any of the meetings of which evidence was adduced - Victree, Colac, Skillshare, or Beech Forest. There was no evidence that he acted in any of the ways pleaded by paragraph 45 of the statement of claim.

2230 According to the plaintiffs' case, however, Benson had acted in such ways. That was to be concluded from the admissions of peaceful protest by the defendants made by paragraphs 5(h) and 43 of the defence; and from the admissions allegedly made by counsel for the defendants in opening his clients' case. Counsel for the plaintiffs submitted also that such a conclusion was supported by Benson not giving evidence in the face of the admission in the defence that he was there.

2231 In my opinion the plaintiffs have failed to establish their case against Benson. First, the admission in the defence was not an admission of any tortious conduct. Second, the defence denied conduct in concert. Third, apart from conduct in concert, no allegation of particular misconduct was made against Benson. Fourth, if my opinion concerning the alleged admissions in counsel's opening was wrong, then in any event the alleged admissions were quite limited. They involved reference to events before 25 January 1999 at which Benson was not shown to be present. Fifth, if it should be assumed, in light of the defence, that Benson visited the site at some time during the week, it does not at all follow that he thereby either actively authorised tortious conduct, or acted in concert with others in furtherance of a common design to act in such a way. In all, the plaintiffs sought to construct against this defendant a case in defiance of an evidentiary hiatus, a case founded on an ingenious but unsustainable analysis of the defence and the opening by defendants' counsel.

False Imprisonment

2232 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.

2233 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 [1228] and Ms Dawson [1229] gave evidence.

2234 Second, there is no reason to conclude that the availability of a police gate was limited to some particular hours of any day.

2235 Third, delay in opening the police gate was not the necessary accompaniment of its availability. Operationally, it is plain that Robinson would have preferred to take the protesters out as a group - had they intimated a desire to leave - rather than that they leave in their own vehicles [1230]. But that was a matter of preference only, and does not lead to a conclusion that there must have been delay in the protesters leaving - which is not to say, and it does not follow, that any such delay would have set up a fragment of imprisonment. In that connection other considerations, including the availability of another means of egress, would become pertinent.

2236 Fourth, it is a corollary of what I have just said, it would not have been obligatory for any plaintiff to leave his or her possessions behind if leaving through the police gate.

2237 Fifth, supposing however that Robinson or one of his officers at his direction had told the protesters, in response to a request to leave, that they must leave in a police - supplied vehicle. Would that have made the police gate an unreasonable means of egress? I would answer that question "no". All the circumstances of the particular case must be considered. An important consideration in this case would have been the provision of police security for the plaintiffs' possessions. I have earlier noted Robinson's evidence and have explained - in the context of Dwan's expressed concern about the safety of his vehicle - why the provision of security was likely to have been effective; and why the protesters should have believed that to be the case. Further, for reasons which I have explained, the need for provision of security was unlikely to have been lengthy. There was good reason why the loggers would soon have left. In the event, the plaintiffs were unlikely to have been separated from their possessions for long at all.

2238 Sixth and finally with respect to the police gate, I earlier noted the evidence given by protesters of requests which they made to the police for assistance in leaving; and I rejected the substance of that evidence. It is not the case, then, on their account, that the protesters did not realise that police assistance would provide a key to unlocking the picket. Indeed, their evidence that they sought assistance underlines their awareness of that circumstance; and their evidence that the police would not provide assistance further underlines it.

2239 Concerning, next, travel through the bush - by which I mean travel other than in very close proximity to SRR - the plaintiffs' essential case was simple: The journey was physically too arduous, and so was not a reasonably available means of egress. That simple case was supplemented by submissions to the following effect: first, if any of the plaintiffs had left through the bush, those remaining would have been more out-numbered, and more vulnerable, without the protection of the fitter persons who had left. So the reasonableness of travel through the bush had to be considered from the point of view of the person least fit and least equipped.

2240 Second, travel through the bush to Turton Track was not a true or reasonable means of egress because what would happen if and when a plaintiff arrived at Turton Track was itself uncertain, as any plaintiff understandably should have believed. A plaintiff who arrived at Turton Track would still have been in "hostile" territory. Who could say that Ms Nelson or Tipler or some other supporter of green protesters would have been on hand to provide that plaintiff with a means of leaving the general area.

2241 Third, counsel in his closing address referred to "violent extremes of weather" in the context of travel through the bush [1231]. I understood him to be submitting that such conditions, or the risk thereof, rendered travel through the bush an unreasonable means of egress.

2242 Fourth, there were patrols in the bush and on Turton Track; or at least the defendants caused the plaintiffs to believe that such was the case.

2243 I have already concluded that the journey through the bush would not have been unreasonably arduous for any of the plaintiffs [1232]. The position was no different, in my opinion, in the case of other protesters. It follows that I reject the plaintiffs' essential case, and the first submission noted above. I do so in the latter case because, even if I accepted the thesis inherent in that submission, I consider that journey through the bush was not an unreasonable means of egress for even the least fit and least equipped protester.

2244 I reject counsel's second submission. Assuming for argument's sake that egress from the place of supposed imprisonment necessitated an ability to leave the general area, the food drop made on the Monday afternoon showed that sympathisers were aware of the presence of the protesters at the intersection. Next, the protesters had travelled to SSP intersection along Turton Track. They knew that it gave access both to the base camp and to the Forest-Apollo Bay Road. It was an obvious point at which to meet sympathisers - the more obvious as the week progressed. Again, viewed from the stand-point of sympathisers, Turton Track was the obvious place for which any protesters leaving through the bush would make. That was so even before Tipler and Ms Nelson encountered Greig, Fowkes and their companions on 26 January; the more so, after that. Further again, and moving to 27 January, Ms Nelson's note to the protesters disclosed an intention of trying to maintain a continuous presence on Turton Track. Finally, it goes to the underlying thesis, there was very little evidence that any protester did not leave through the bush because of concern for the "weakest link" who would then be left behind.

2245 I go to counsel's third submission. There was, of course, evidence of the storm which occurred on the late Thursday afternoon. That evidence apart, Ms Epstein gave evidence of a storm on the Wednesday night [1233] and Greig gave evidence of it starting to rain on the Tuesday [1234]. Again, Fowkes said that he could not climb a tree on the morning of 26 January "due to the rain and slipperiness"; [1235] and there was evidence of misty rain on 24 January.

2246 The evidence enables a conclusion that, the Thursday afternoon storm apart, there was some rain during SSP week. It does not enable a conclusion that there were "violent extremes of weather". Moreover, whilst Fowkes gave evidence that "down the bottom of the forest" it was "pretty dark, dank and grisly", [1236] Forester described the conditions as being a lot drier than he had anticipated [1237], and the journey was in fact made by people wearing light clothes and footwear.

2247 Ms Gross gave evidence of a protester response to Ms Calvert saying that they could leave through the bush. According to her memory, the response - evidently she was not a party in the conversation, for she said that any communications with Ms Calvert were through protester representatives [1238] - had referred, inter alia, to:

[611]

2248 She did not recall what day the conversation took place [1240].

2249 All in all, there was little evidence that weather conditions, or the risk of inclement weather, precluded journey through the bush; or that the protesters considered that one or other or both did so. Nonetheless, in my opinion there were times at which weather conditions did make leaving through the bush an unreasonable means of egress. That was so on the Thursday late afternoon, and probably also at some stage on the Wednesday night. The position on the Tuesday night is less clear.

2250 That takes me to a matter which was not, I think, raised by counsel for the plaintiffs - that is, the distinction between hours of daylight and darkness. Although SSP week occurred during high summer, there were still a considerable number of hours of darkness. In my opinion leaving through the bush was not a reasonable means of egress during those hours.

2251 I should mention counsel's fourth submission. I do so only to note that conclusions which I have earlier expressed require its rejection.

2252 I should refer to the incident involving McFadzean, Molloy and Chris Wheeler on 26 January [1241]. I have concluded that McFadzean was prevented from walking north along SRR; and that, having been offered, in effect, the options of going back into the bush or travel back to SSP intersection in the vehicle, he had opted for the latter.

2253 The former option gave McFadzean the opportunity of continuing his journey through the bush, if he had possessed a continuing intention to leave. That was no less a reasonably available option than it had been when he commenced his journey. McFadzean's choice to travel in the vehicle should not, then, be characterised as an imprisonment. His choice also shows, in my opinion, the fragility of his intention to leave - a fragility understandable in light of his leading role in the protester group and his repeated statements on 25 January that the protesters intended to stay.

2254 I said earlier that there was no false imprisonment because, subject to qualification which followed, there were at least two means of egress that were not unreasonable from the perspective of any plaintiff. That is enough to dispose of the issue. Strictly it is not necessary to consider why the plaintiffs did not take advantage of either means of egress - that is, why they did not do so in truth, as distinct from reasons which they advanced and which I have rejected. I should say something more, however, about the intentions of the plaintiffs from time to time during SSP week.

2255 I have earlier concluded why it was that the protesters camped at SSP intersection on the night of 24 January [1242]. Their decision to do so was contributed to by the events of the day set against a background of conflict between protesters and loggers - a conflict of which most of the protesters were aware, and in which many of them had participated - either over a protracted period or in recent times. Their decision and its execution was an instance of what I have earlier called the collegiate spirit of protesters, an aspect of which was the "them and us" mindset in which the "them" embraced loggers, police and DNRE officers. That decision and its execution must be understood in the context which I described at paragraph [193] of these Reasons.

2256 Moving forward to the morning of 25 January, it is the fact, as I have noted earlier, that many of the protesters gave evidence of not intending to stay at SSP beyond that day; and advanced a reason for intending to leave. I have concluded, however, that excepting Ms Garrett, it is highly likely that each of the protesters who was at the camp that morning had decided to stay, and to preclude work at SSP coupe - certainly that day, and for an indefinite period. [1243] Their decision to stay had not been affected by the events of the night of 24-25 January.

2257 It is next the situation, as I have concluded, that on 25 January, on a number of occasions, McFadzean stated that the protesters were staying. He did so before and after the arrival of the loggers' party. The fact that the protesters [1244] remained at the intersection up to the arrival of the loggers is consistent with him stating the intention of the group as it was on the morning of 25 January. The fact that, after the arrival of the loggers, only Ms Jackson made any attempt to leave that afternoon, is consistent with McFadzean's statement of the intention of the protesters at that time.

2258 Moving forward to 26 January, I have concluded that none of the protesters told Robinson that they wished to leave, sought police assistance to leave, or told him they could not leave through the bush. In my opinion they said none of those things because they then intended to remain. The fact that at trial a number of protesters gave evidence, which I have rejected, of telling Robinson one or more of those things tends in favour of the conclusion just expressed.

2259 A question arises whether that conclusion is compatible with the departure of Greig, Fowkes and other companions on 26 January; and with McFadzean's attempt to leave. I do not consider that there is necessary incompatibility.

2260 Just what Greig and Fowkes intended to do, and just what they did, on the afternoon of 26 January is a matter of considerable uncertainty. Putting minute detail to one side, they certainly found their way to the Mt Sabine base camp and to the Oren office. On Fowkes' account, those were the only two places they visited. Fowkes gave evidence also that he sat around whilst Greig spoke to Whitehead. The import of Greig's evidence, however, was that he did not speak to Whitehead.

2261 Apart from whatever occurred at the Oren office, Greig gave inconsistent evidence whether protesters asked him to make phone calls, and whether he made any such calls. He certainly did not attempt to contact any senior police officer directly; and I regard his explanation why he did not do so as unsatisfactory. Neither, for that matter, did he contact the employer with whom, he said, he had been about to undertake a work trial on 25 January. Again, his explanation why it was that he made the journey at all adapted to changing circumstances. [1245]

2262 Fowkes gave evidence which in some respects conflicted with the evidence of Greig; and which was in several respects at least surprising. In the latter connection I instance his evidence of what occurred at the base camp. Further, Fowkes gave a reason for the journey which, as in Greig's case, faced real difficulties.

2263 I think it is probable that the main reason for Greig and Fowkes making their journey was to enable them to contact Oren. The fact that they were picked up by Tipler and Ms Nelson may be regarded as a bonus.

2264 There are a number of possible reasons why the two men, for the protester group, may have wished to contact Oren:

• first, to seek help in facilitating the release of their companions (which implies imprisonment);

• second, to provide detail of the alleged imprisonment to Oren, for use in Oren publications;

• third, to seek Oren's views about the protesters signing no-protest agreements;

• fourth, to discuss any no-protest agreement sought from Oren;

• fifth, to seek Oren's views about protesters cutting and running.

2265 In my opinion the first possible reason is the least likely. Greig, Fowkes, Jaskierniak and Ms Douglas had in fact left through the bush. Further, they had no reason to believe that there was no police gate. Neither, I conclude, did they have any such belief. Further again, they did nothing to contact any senior police officer.

2266 The third and fourth possible reasons are, I think, improbable because the protesters' understanding of what agreement was being sought from them, let alone Oren, was imperfect as at 26 January.

2267 The second and fifth possible reasons, alone or in combination, are, in my view, the most probable. Oren was a major player in Otways forest protests, as a number of the protesters knew. They knew also that it produced arguably effective publications, and that in the summer of 1998/99 it had already made much of alleged logger violence against protesters. The potential for Oren to exploit the detail of an alleged imprisonment of green protesters was surely evident. In fact, by 26 January it had already issued two media releases pertaining to events at SSP [1246].

2268 Again, Oren's approach to the broad conflict between loggers and green protesters, so far as it emerged at trial, did not involve protesters cutting and running. It is understandable that a group of protesters for whom that was one option would be concerned about Oren's viewpoint notwithstanding that, in the end, the decision was one which they must make.

2269 In all, I consider that what Greig and Fowkes intended to achieve by their journey on 26 January is consistent with an intention on the part of the protesters to remain at SSP intersection at that time other than because they were, or believed themselves to be, imprisoned.

2270 McFadzean's attempt to leave, such as it was, could have had as its objective seeking the release of the protesters - this again implying that there was imprisonment. But that is unlikely, particularly in light of McFadzean's failure to say anything to Robinson about imprisonment; a failure at odds with his evidence to the contrary.

2271 The more likely explanation, I think, lies in one or both of the following: first, a wish to discuss the matter with Oren representatives - for McFadzean at least knew that Ms Calvert was seeking some kind of no-protest agreement from the protesters, and he had drawn a link between any such agreements and Oren's position; and second, to take steps, with or without Oren, to maximise the political impact of an alleged imprisonment of protesters by loggers.

2272 It is the fact that on 28 January, after his arrival at Apollo Bay, McFadzean contacted Robinson and alleged that his companions were being imprisoned. That conduct, it might be argued, evidenced McFadzean's belief that such was the situation; in which circumstances it should be concluded that such was his belief on 26 January, and the likely explanation of his attempting to leave that day. I would not accept that analysis. It sits ill with what occurred, as I have concluded, on 26 January when Robinson attended. It sits ill with what, as I have concluded, McFadzean told Johnson on 25 January. It is more compatible with McFadzean making a false complaint on 28 January, which is what Robinson took it to be.

2273 In all, then, McFadzean's attempt to leave on 26 January was not inconsistent with an intention on the part of the protesters, McFadzean included, to remain at SSP intersection as at that time. It is likely that McFadzean, had he succeeded in leaving, would have returned to the camp after achieving his purposes. McFadzean had a leading role in the protester group, regardless of the professed equality of its members. Moreover, his vehicle and all his possessions remained at SSP intersection.

2274 In the event, I consider that the principal reasons which actuated the protesters [1247] to remain up to and including 26 January were those which I have already described. That is so notwithstanding events which occurred on the afternoon of 25 January; events one or more of which probably caused particular protesters to believe that the defendants would not allow them to leave along SRR. [1248]

2275 There were evidently changes in the intentions of McFadzean and Ms Jackson subsequent to 26 January. They left SSP intersection, for reasons genuine or otherwise, on 28 January.

2276 The position of the other protesters subsequent to 26 January is, I consider, more complicated. I am satisfied that, as a group, their continuing intention up until the picket was lifted was to stay. I am satisfied that such a group intention prevailed although, later in the week, the disposition of some of the protesters was to leave. I consider that those who wished to stay prevailed upon their companions to do so; and that the collegiate spirit which I have described was sufficiently strong to bring about that outcome.

2277 It is one thing to say that the personal disposition of some protesters altered later in the week. It is another thing to say when that happened in the case of any particular person.

2278 I am able to conclude that some protesters wished to leave by 28 January, and that a considerable divergence in views was expressed at a meeting of protesters held either on the Thursday night or the Friday morning. [1249] It is probable, I consider, that by the morning of 29 January the protesters other than Dwan, Fowkes, Greig, Kennerson and Ms Lees wished to leave; and were prepared to do so either on limited terms or else unconditionally; [1250] whereas those five persons, other matters apart, intended to stay at least so long as the picket was not dissolved. I consider, further, that such was the approximate divergence in position from the morning of 28 January - that is, following the night on which the loggers' harassing activities reached their peak. Beyond those conclusions I am unable to make any positive finding. The many assertions by protesters that they wished to leave throughout the week do not, for reasons previously discussed, carry the matter any further.

2279 I next consider 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. The additional reasons to stay were these:

2280 First, some protesters would never have agreed to sign a personal no-protest agreement in return for the ability to leave along SRR.

2281 Second, it seems likely to me that the actions of loggers to harass or annoy the protesters in some instances hardened the intention of protesters to see the incident through - rather than cause them to flee the intersection. Such a reaction was predictable when the particular mindset of the protesters is borne in mind. The willingness of some of them to endure discomfort for what they could characterise as the greater good should not be underestimated. Amongst the plaintiffs, I would say that at least of Dwan, Ms Lees, McFadzean, Ms Dawson, Bowles and Fowkes.

2282 Third, from 25 January the protesters were face to face with a logger majority. Flight, though possible, for reasons discussed would have been highly unpalatable to the protesters; perhaps the more so insofar as it depended upon the assistance of "them" in the form of the police.

2283 Fourth, at least from 26 January the protesters knew that they were being championed as the victims of logger imprisonment. Despite denials, I think that this perception, and its continuance, was not unpalatable to the protesters - at least until the loggers' harassing activities peaked on the night of 27-28 January.

2284 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]-[121] of these Reasons. Even from the afternoon of 25 January, notwithstanding that the dominant considerations informing the protesters' intentions were those which operated on the Sunday night and Monday morning, other considerations were beginning to intrude.

2285 Finally upon the issue of false imprisonment I should say this: it might be argued that the fact that Greig and Fowkes left the protesters' camp, travelled to Apollo Bay and then returned makes a nonsense of any suggestion that they, at least, were falsely imprisoned; and that it is a strange notion that Ms Gross, having chosen to go to the camp, and having made her way there, should then claim to have been imprisoned. Each of Greig and Fowkes gave a reason for returning. I have accepted the reason given by the latter. It is arguably consistent with there being an imprisonment notwithstanding his journey to and from Apollo Bay. The position so far as Greig and Ms Gross are concerned is more doubtful. The former assigned a number of reasons for his return. The latter sought to explain her imprisonment by saying, in effect, that once she arrived at the camp she could not leave. In the case of each of these three plaintiffs, however, I have concluded that there was no false imprisonment upon the same bases as with the other plaintiffs. The principal significance of their journeys is that they were made by people [1251] of different sexes, with different experience of the bush, differently attired; and that none of the travellers suffered anything but the most minor injuries.

Wilkinson v Downton

2286 The plaintiffs plead that the defendants engaged in a great deal of conduct the aim of which was to cause them harm, fright and terror. As I earlier pointed out, they rely upon each of the matters particularised under paragraph 5 of the statement of claim - that embracing, for practical purposes, the entire range of activity in which the defendants and other loggers allegedly engaged throughout SSP week.

2287 The plaintiffs further plead that in consequence of such conduct they suffered "physical and mental harm and distress" as set out in paragraph 50 of the statement of claim. As I earlier pointed out, they also plead that each incident of tortious behaviour to which, respectively, they were allegedly subjected was a cause, sufficient in law, for all their injuries; a pleading which in some instances is an evident nonsense. [1252]

2288 The plaintiffs' pleaded case in some respects was not the case argued by their counsel in his final address. As I have earlier noted, he said that in support of the claim he relied upon "everything other than the imprisonment and the nuisance". [1253] He particularly referred to the use of chainsaws, the operation of generators, the banging of drums, rocking McFadzean's vehicle, the throwing of stones, verbal threats, floodlighting the plaintiffs' camp, isolating the plaintiffs without telephone contact, not ensuring that the plaintiffs had adequate food, water, shelter, bedding, clothing and access to personal hygiene facilities; and persisting despite it being apparent that at least some of the protesters were becoming very distressed.

2289 That was a case which did not rely upon the bare facts of the alleged imprisonment and nuisance; but which sought to implicate almost everything else that was alleged by the statement of claim; and other matters besides. So it was contended, in effect, that everything allegedly done by the defendants and other loggers during SSP week, whether mundane or otherwise, should be characterised as intended to cause the plaintiffs alarm, fright and terror. Moreover, the plaintiffs, in effect, sought to ascribe such an intention in respect of things which were not done - for example, providing them with adequate bedding and clothing. It was a case which, in my opinion, went beyond the area marked out by Wilkinson v Downton.

2290 Whether one begins with the claim as pleaded or the claim as finally articulated, problems (other than that to which I have just adverted) arise. There are large parts of the plaintiffs' case which I have either rejected, concluded was not proved, or have concluded were much overstated. Those parts can be grouped into four categories.

2291 First, I have concluded that certain of the pleaded tortious conduct was not made out. Instances are the plaintiffs' plea that they were falsely imprisoned; and the assaults (using the word other than as a term of art) pleaded by paragraphs 15, 17, 19, 23, 25 and 39 of the statement of claim. [1254] Because I have concluded that such conduct was not established, pleas by the plaintiffs that they or any of them suffered all their alleged injuries by reason of such conduct becomes an impossibility.

2292 Second, in some instances I have concluded that pleaded incidents did occur; but that they were not productive of the fear or distress of which evidence was given. Instances are evidence of plaintiffs that they were put in fear by Molloy's pig hunter remark, evidence of some plaintiffs that they were made fearful by the other threats to which I refer at paragraphs [1463]-[1473] of these Reasons, and McFadzean's evidence of being put in fear by the incident pleaded at paragraphs 29 to 33 of the statement of claim.

2293 Third, I have concluded that certain of the defendants' conduct was not reliably characterised by the protesters. So, for example, there is no doubt that lights were set up, and generators run. But I have positively concluded that the lights were not set up so as to shine into the plaintiffs' camp as an instrument of oppression; and whilst I have concluded that one generator was on some occasions run near the plaintiffs' camp in order to harass or annoy them, I have concluded that most often the generators were run, not close to the plaintiffs' camp, for the purpose of powering the lights. Again, I have concluded that some allegations of alleged oppression - I instance interference with supplies of food and water - were unfounded.

2294 Fourth, there are instances where, as a step to a final conclusion, I have not accepted an account of events given by one or more plaintiffs, which events were themselves said to be productive of fear. So, for example, in coming to an ultimate conclusion that the plaintiffs were not falsely imprisoned, I have decided, contrary to the evidence given by some protesters, that there were not loggers' patrols in the bush, neither fear nor apprehension of the same in consequence of any conduct for which the defendants could bear responsibility.

2295 I should mention an additional circumstance bearing upon the Wilkinson v Downton claims. In a number of instances the plaintiffs simply did not lead evidence of conduct pleaded in the statement of claim as being causative of their injuries. See paragraphs 23, 28A and particular (mm) to paragraph 5 of the statement of claim.

2296 Each of the four categories of conclusions and the additional circumstance just mentioned has implications not only for the plaintiffs' case as pleaded and as argued in counsel's final address, but also for the medical opinions adduced from Dr Epstein referable to Ms Jackson, Greig, Dwan, Ms Lees, McFadzean and Ms Dawson. Insofar as the doctor predicated his respective opinions as to the psychiatric injury which he diagnosed upon acceptance of a history that certain events had occurred, or that certain events had caused that plaintiff fright, terror or alarm, there may well be a serious question whether that opinion can stand in the face of my conclusions that some at least of those events did not occur, were misrepresented, or, insofar as they occurred, did not cause the particular plaintiff distress or alarm.

2297 I turn to the defendants' case at trial. They admitted engaging in activities aimed at annoying the protesters. In that connection they admitted the use of chainsaws other than to cut wood; and the beating of makeshift drums. I have expressed conclusions as to the frequency with which and the overall period during which such activities occurred. [1255]

2298 I have concluded, also, that a generator was run at times close to the protesters' camp with a view of annoying the occupants. [1256]

2299 Further again, I have concluded that small stones were thrown into the protesters' camp on occasions, striking the tents and on one occasion McFadzean's vehicle; and that this was done to annoy or inconvenience the protesters [1257].

2300 Again, I have concluded that Nocera entered the protesters' camp with his video camera on a few occasions on 25 and 26 January, and either used the same or pretended that he was doing so. [1258] Use or pretended use on those occasions, I consider, went beyond making a fair record of events. I conclude, on balance, that it was conduct that had an intention of harassing or annoying the protesters.

2301 There are other incidents which might conceivably bear on the Wilkinson v Downton claims. I have in mind the incidents involving Ms Jackson and Jaskierniak/Ms Douglas on 25 January, the incident on SRR involving McFadzean on 26 January, the incidents in which Donato went into the bush, and the incidents in which protesters came upon fishing line in the bush. I have described all those incidents in detail. The accounts given by plaintiffs about them, and their impact, was often overstated. I will nonetheless consider the present claims on an assumption that such logger conduct, so far as I have concluded it was established, was accompanied by a pertinent intent.

2302 Other matters occurred during SSP week upon which, in my opinion, the plaintiffs could not successfully rely in the present connection. First, there was much evidence, as I have noted on a number of occasions, of logger abuse; just as there was much evidence of protester abuse. Specific instances to which I have referred put to one side, I conclude that logger abuse neither aimed to cause the protesters fright, terror or alarm; nor did so. Simply, sporadic abuse, sometimes vulgar, sometimes outlandish, was flung between the opposing parties.

2303 Second, it is the fact that Ms Calvert demanded, putting it at its highest, that protesters sign no-protest agreements in return for their ability to leave along SRR with the blessing of the defendants. But I have concluded that such demand was not an element of imprisonment because means of egress were reasonably available to the protesters. It is not the case that refusal of the demand carried with it the consequence that the protester must remain at SSP intersection, which would or at least might have been a cause of alarm, fright or terror.

2304 Third, it is the fact that a number of plaintiffs became very wet when they were caught in the storm late on the afternoon of 28 January. But I have concluded that there was then a reasonable means by which they could have returned to their camp. It is not the case that those protesters were imprisoned at the time. Had they been imprisoned in such circumstances, the same would or might have been a cause of alarm, fright or terror.

2305 I consider that it cannot be said that in undertaking any of the conduct which I have particularly implicated the defendants had an actual desire to inflict mental distress involving physical injury upon any of the plaintiffs. Some of that conduct, however, was by the defendants' admission aimed at annoying the protesters; and I proceed on the assumption that other conduct which I have mentioned should also be so characterised. I further consider that within such conduct lies, if at all, the plaintiffs' avenue to success upon the claims now under consideration. Most particularly that is so, for reasons which I will discuss in a moment, insofar as the conduct caused or contributed to the plaintiffs being sleep-deprived.

2306 The conduct which the defendants admitted was aimed at annoying the protesters had, as its desired outcome, driving the protesters away from SSP; and preferably out of the Otways. The same desired outcome should be attributed to the other conduct of the defendants which I have identified. Such conduct was likely to produce that outcome, if at all, because it engendered at least alarm or fright in the protesters. It seems to me to follow that in undertaking such conduct the defendants should be taken to have intended to alarm or frighten the protesters. Such an intent is pertinent to Wilkinson v Downton claims if the situation falls within the parameters described in paragraph [123] of these Reasons.

2307 I have earlier concluded that the principal harassing conduct in which the defendants engaged, particularly the use of chainsaws other than to cut wood, and the beating of drums, did inhibit the sleep of the plaintiffs to a varying extent on the nights of 26 and 27 January. It can reasonably be inferred that the defendants engaged in such conduct either with the intent of causing sleep disturbance, or at least with the reasonable apprehension that this might occur. Realistically, sleep disturbance to some extent was the probable consequence of the defendants' conduct. Normal people deliberately deprived of sleep by the actions of others might, I think, become alarmed or frightened - if not directly, then via the medium of fatigue or exhaustion. I should think that would be reasonably apprehended. It is another question whether in a particular case a person was so affected. That is likely to depend on the personal characteristics of the individual, the extent of sleep deprivation, and perhaps the overall context in which the sleep-depriving conduct occurs. Other conduct of the defendants to which I have referred in the last few moments - conduct capable of causing alarm or fright - would be of potential significance in that last connection. If a person was to become alarmed or frightened that might cause or contribute to an injury compensable under Wilkinson v Downton principles.

2308 It follows from what I have said that the question to be decided is whether any or all of the plaintiffs have established that the defendants' offending conduct (simply, "the conduct" or "the offending conduct") caused some and what compensable injury [1259]. That is subject to a qualification. Counsel for the defendants contended, in effect, that there was a complete answer to the plaintiffs' claims. He made this submission: Chris Wheeler and his crew had a sufficient possession of the land in the coupe and SSP Track to assert a right against trespassers. The plaintiffs were trespassers. A person in possession of land has some right to self-help, that is, to exclude trespassers. It was reasonable self-help to cause a measure of inconvenience to the plaintiffs as an encouragement to them to vacate the area.

2309 Counsel for the plaintiffs contested each step in that argument; but in my view it is unnecessary to resolve all the competing submissions. It is sufficient to conclude that the offending conduct went beyond what could be fairly described as reasonable self-help by Chris Wheeler and his crew, or by others on their behalf.

2310 In addressing the question whether the conduct was a cause of any or all of the plaintiffs suffering compensable injury, five matters should be mentioned at the outset.

2311 First, whilst I have concluded that the plaintiffs' sleep was inhibited to a varying extent on the nights of 26 and 27 January, the extent of sleep deprivation in any particular case, and its effect upon any plaintiff, is very difficult to determine. That is so for a number of reasons. Thus:

• The protesters, generally speaking, misstated the nature of and overstated the extent of the conduct. I have earlier expressed many conclusions in that connection.

• Many of the plaintiffs, I am satisfied, overstated the extent of disturbance of their sleep. That follows because their evidence about sleep disturbance was linked to their evidence about the extent of the conduct.

• There were certainly periods of time in each 24 hours on the critical days when sleep was possible; and in some instances plaintiffs gave evidence of sleeping during such periods.

• The protesters gave a good deal of evidence that there was crying and despair in their camp, particularly from the Wednesday onwards. I have referred to a little of that evidence earlier. Such evidence must be considered, however, in the context that the protesters gave much evidence about the conduct of the loggers and the police which I have concluded was unfounded. Their evidence about crying and despair was surely linked with a scenario which I have concluded was in many respects not the case.

Furthermore, the evidence about crying and despair must be considered along with pictorial and other evidence susceptible of casting light on the apparent emotional and physical condition of the plaintiffs as the week progressed. Such other evidence, from the standpoint of the plaintiffs, was at best ambiguous. I have earlier referred to a variety of activities undertaken by different protesters on 27 and 28 January - both interactively with the loggers and amongst themselves. Such activities do not on their face bespeak exhaustion or despair. Is it credible that Ms Lees, Ms Dawson and Kennerson, if exhausted and despairing, let alone fearful of loggers, would have made a longish walk into SSP coupe on 27 January? [1260] Evidently they were not at the time intending to permanently leave their camp. Consider also the walk made by Ms Epstein and Ms Jackson, albeit on 26 January [1261]. Again, the sporadic confrontations between loggers and protesters at the banner seem not to have changed in character as the week progressed. A number of protagonists on the protesters' side seem not to have been cowed or defensive. Witness the behaviour of Fowkes on 28 January, Ms Colson's attempt to take advantage of a photo opportunity that day, the language used by Ms Epstein, and my conclusion that Ms Dawson used bad language towards the loggers throughout SSP week [1262].

• Means of egress, I have concluded, were available to all the protesters during SSP week. Yet they were not availed. There were, as I have concluded, reasons why the protesters stayed on. Yet the fact that means of egress were not availed of suggests that the offending conduct and its impact upon sleep were not as substantial as the protesters generally asserted.

2312 Second, there is a question whether the defendants should be liable to the plaintiffs, or at least to the persons whom I identified at paragraph [2279] of these Reasons, insofar as any injury was attributable to an unnecessary exposure to the offending conduct. By that I mean that the plaintiffs determined to stay at their camp during SSP week for reasons which varied over time; reasons in the case of some plaintiffs which included resistance to the defendants' conduct aimed at getting them to leave.

2313 The question is not likely to be a question of great practical importance. Any difference in the impact of the offending conduct would be unlikely to be great. It would principally consist of the effect generated by behaviour on two nights rather than one.

2314 That aside, I think that the plaintiffs' potential entitlement to ordinary compensatory damages should not be affected by the circumstance in question. The fact is that by the Wednesday night the plaintiffs had not departed, for whatever reason; and yet the defendants resumed their offending conduct. On the other hand, I think that the circumstance under discussion might conceivably be relevant to deciding whether, in the case of a particular plaintiff, exemplary damages ought be awarded.

2315 Third, no medical evidence, other than an accident and emergency record compiled at the Clinic on 29 January, was adduced in respect of Ms Gross, Bowles, Fowkes, Ms Colson or Ms Epstein. Records of the same kind were tendered in the case of the other plaintiffs except Ms Jackson. The records [1263] were compiled by two nurses - in five instances by Mrs Anne Beaumont and in five instances by Ms Nelson.

2316 The records consist in substantial measure of complaints made by the plaintiffs. There is a real question whether, at least in many instances, the complaints could be taken at face value. It seems clear to me that the plaintiffs primarily attended the Clinic as an insurance for possible ensuing litigation. It had been threatened often enough during SSP week. Further, the records compiled by Ms Nelson, for reasons later discussed, appear to be less than objective in some respects.

2317 But there is a deeper question. In order to sustain a Wilkinson v Downton claim a plaintiff must establish that the mental distress caused by the defendant's conduct was accompanied by consequences of the kind described at paragraph [127] of these Reasons.

2318 In the case of each of the 10 records, virtually no abnormal physical findings were noted in terms of temperature, pulse, respiration or blood pressure. In only two instances, involving Ms Lees and Ms Dawson, was the pulse rate slightly increased.

2319 Further, the record form allowed the nurse to assign a priority for the patient having medical attention - priority 1 being the highest and priority 5 the lowest; and for the nurse to notify a doctor if that was deemed necessary. In the case of the five plaintiffs seen by Mrs Beaumont - Greig, Ms Gross, Ms Lees, Ms Dawson and Fowkes - a priority of five was noted in four instances, and no priority at all in the other. Further, in no instance does the record show that a doctor was notified. In the case of the five plaintiffs seen by Ms Nelson - Dwan, McFadzean, Bowles, Ms Colson and Ms Epstein - no priority at all was noted; and in no instance does the record show that a doctor was notified.

2320 Beyond what I have said, and focussing upon the five plaintiffs in respect of whom no other medical evidence was called, the records contained a note of presenting problems and observations as follows:

Records compiled by Mrs Beaumont:

[617]

2321 Mrs Beaumont gave evidence that she did not believe Ms Gross had been severely dehydrated. Her note, in the case of Fowkes, that the presenting problem was "stress, fatigue", was a combination of her observations and what she was told. I add that her observations with respect to Fowkes, it seems clear, must have reflected what he told her were the causes of his stress and fatigue.

2322 Ms Nelson gave evidence that the references in the records which she compiled to stress and fatigue were based upon history and observations. In the latter connection she referred to a flattened effect, tiredness, a haggard appearance and edginess.

2323 It is the fact that Ms Nelson observed, according to the records which she compiled, mental fatigue and stress in the case of every plaintiff - attributable to what she variously called "blockade in the Otways", "harassment and hostage situation in the Otways" and "harassment at blockade". Certainly those records disclose a point of view, and I cannot accept that they were objective in that connection. Moreover, I cannot understand how observations, which should ordinarily be taken to be a record of observed abnormalities, could be said to include assertion of a relationship between any described mental fatigue and stress and its cause.

2324 Assume, however, in the case of the five plaintiffs in respect of whom no other medical evidence was called, that the records should be taken at face value. Assume also that the offending conduct caused those plaintiffs to suffer mental distress. Do the records, or any of them, disclose an injury compensable under the Wilkinson v Downton cause of action? I have already said something about the type of injury which is required. Now I must say something more.

2325 As I understand it, in claims of this type, where non-physical injury is concerned, a distinction is to be drawn between recognised (or recognisable) psychiatric illness and distress. It is a distinction found elsewhere in torts law. Most often, though not in all cases, the former is compensable but the latter is not. So, in the tort of negligence, what is (or may be) compensable is, at least most often, the former [1264]. There are, on the other hand, torts and statutory causes of action where only damages for distress may be awarded; and other torts where damages may be awarded for both injury and distress. [1265] Cases where damages for distress may be awarded (false imprisonment is one such) serve to point up, for present purposes, the distinction between recognised psychiatric illness and distress.

2326 There may in particular cases be a difficulty drawing the line between emotional distress and recognised psychiatric illness. In my respectful opinion that difficulty, in the particular context of the tort of negligence, was very clearly explained by Hayne J in Tame [1266].

2327 Keeping in mind the circumstance that a court must determine each case upon consideration of all the evidence, and not merely (expert) medical opinion, it may be that a court will determine that a case falls on one side of the line despite expert opinion to the contrary. Whayman v The Motor Accidents Insurance Board [1267] was, as I perceive it, such a case.

2328 It needs to be borne in mind also, I think, that whilst distress and recognised psychiatric illness fall on different sides of a line, it may well be in a particular case that the one will lead onto the development of the other.

2329 Against the background of what I have said, I return to the question which I earlier framed: making the two assumptions, do the Clinic records, or any of them, disclose an injury compensable under the Wilkinson v Downton cause of action?

2330 In my opinion, "stress" and "mental fatigue" should not be so characterised, although they might lead on to recognised psychiatric illness (conveniently, "psychiatric injury"). No evidence was called to suggest that either of them is a psychiatric injury. Moreover, the absence of any suggestion that the particular plaintiffs should be referred to a doctor by reason of those symptoms suggests their perceived likely transience. [1268]

2331 Other than "stress" and "mental fatigue", in the case of Ms Gross, Mrs Beaumont noted a superficial scratch on the neck. So far as I can see, Ms Gross gave no evidence of any such injury. Even had she done so, I find it difficult to see how it could be related to mental distress arising from the offending conduct, or even to that conduct directly.

2332 Next, Ms Nelson's record relating to Ms Colson mentions presenting problems including "chest, throat"; but her observations suggest no abnormality in either area. The record also notes Ms Colson's complaint of a migraine starting that day. I think that a migraine would fit the description of physical injury. If it could be related to mental distress associated with the defendants' offending conduct, then I consider it would be compensable. Ms Colson, I add, gave evidence of suffering a migraine that day. [1269]

2333 Again, according to Ms Nelson's observations Bowles suffered "ear irritation and reverberation". Her note thereof was followed by "no apparent injuries". It is not clear whether the one was an intended reference to the other. If Bowles suffered damage to his hearing apparatus, even temporarily, that would be regarded as physical injury. It might readily be associated with the offending conduct, but not through the intervention of mental distress.

2334 Bowles gave a little evidence about the matter. He said that his ears were ringing, reverberating. He could not hear quite properly.

[619]

He gave no evidence how long the symptoms remained; or, indeed, when they commenced.

2335 The state of the evidence, as I have described it, does not in my view permit a conclusion that Bowles suffered any physical injury, quite apart from the fact that the evidence discloses nothing that would permit an assessment of damages to be made, other than by guesswork.

2336 In Ms Epstein's case, Ms Nelson observed the presence of a reddened throat. That might be, or might bespeak, some physical injury. But how it could be connected with the offending conduct I do not know; and plaintiffs' counsel did not attempt to make any connection. Further, Ms Epstein gave no evidence of having suffered a sore throat. Nor did she give evidence of having suffered ear irritation, another matter recorded by Ms Nelson. Absent any pertinent evidence by Ms Epstein, there could be no question of physical injury to the hearing apparatus having been established. The same observation applies to weight loss, if it could be injury. Ms Nelson noted "loss of weight", as an observation. It could not be so. Ms Epstein gave no evidence of having suffered weight loss.

2337 In all, then, accepting Ms Colson's evidence that she suffered a migraine, the same would be compensable if it accompanied distress caused by the offending conduct. Other than that, the records of the Clinic for Ms Gross, Bowles, Fowkes, Ms Colson and Ms Epstein do not demonstrate - first making an assumption that the offending conduct caused them mental distress - that any of those plaintiffs suffered physical or psychiatric injury in consequence.

2338 Fourth, I have devoted a deal of time to analysing the Clinic records relating to the plaintiffs in respect of whom no other medical evidence was called. But I should add that whilst counsel for the plaintiffs maintained in his closing address, as I understood it, a submission that all plaintiffs were entitled to ordinary compensatory damages on their Wilkinson v Downton claims, he specifically did not claim general damages for psychiatric injury in the case of Ms Gross. [1271] Concerning Bowles, he sought compensatory damages of $10,000 for "psychological distress" on the false imprisonment claim, but said that he was not claiming psychiatric injury. [1272] Concerning Ms Epstein, counsel submitted that there was a proper claim for distress, but that psychiatric injury could not be claimed. [1273] Concerning Fowkes, counsel said that no general damages for psychiatric injury were claimed. He noted that Fowkes had given no evidence of an impact of SSP week upon him. [1274] Concerning Ms Colson, counsel mentioned her evidence that she had suffered nightmares for six months, queried whether that should be categorised as distress or injury, and in any event sought ordinary compensatory damages in an unstated amount. [1275] In the case of four of those five plaintiffs, then, counsel specifically disavowed any suggestion that the evidence established recognised psychiatric illness.

2339 Fifth, counsel for the plaintiffs submitted, following upon a lengthy analysis of the principles pertaining to aggravated and exemplary damages, and of factors which he contended were pertinent in this case, that each plaintiff should be awarded aggravated damages of $100,000 and exemplary damages of $100,000. [1276] That submission necessarily assumed that each plaintiff was entitled to ordinary compensatory damages in some amount.

2340 Taking as an important starting point the first four of the five matters which I have discussed, I go to the question whether the individual plaintiffs have established that they suffered compensable injury. Within that enquiry there are questions whether the offending conduct in fact caused the particular plaintiff alarm, fright or terror; and, if so, whether such alarm etc led on to compensable injury.

2341 As I have noted earlier, Dr Michael Epstein, psychiatrist, was called to give evidence on behalf of six plaintiffs. The doctor had examined each of those plaintiffs on a single occasion. He provided reports, which went into evidence as follows:

• Greig: Report dated 13 December 2000 [1277] following examination 11 December 2000.

• Ms Lees: Report dated 5 March 2001 [1278] following examination 28 February and 5 March 2001.

• Ms Jackson: Report dated 15 March 2001 [1279] following examination 14 March 2001.

• Dwan: Report dated 29 March 2001 [1280] following examination 28 March 2001.

• McFadzean: Report dated 12 April 2001 [1281] following examination 11 March 2001.

• Ms Dawson: Report dated 16 October 2003 [1282] following examination 15 October 2003.

2342 In the case of those six plaintiffs, apart from records of the Clinic pertaining to all of them except Ms Jackson, and the viva voce evidence of Mrs Beaumont and Ms Nelson, the only other medical or like evidence which was adduced was as follows:

• Ms Jackson: ambulance record [1283];

Report of Dr Nathan Serry, psychiatrist, dated 26 August 2003 [1284];

• Ms Dawson: Report of Dr George Mendelson, psychiatrist, dated 26 November 2003 [1285].

2343 Each of doctors Epstein and Mendelson gave a little further evidence in chief, and was cross-examined and re-examined.

2344 Other than that, it is the case that in August 2003 and early September 2003 Dr Serry examined, on the defendants' behalf, Greig, Dwan, Ms Lees and McFadzean. The potential significance of him doing so is, obviously enough, that the defendants did not call him, with whatever consequences that might have in terms of inferences drawn.

2345 The cross-examination and re-examination of Dr Epstein touched both upon his interviews with and opinions generally concerning the plaintiffs; and upon his interviews and opinions pertaining to the plaintiffs individually. It is convenient to mention aspects of his generic evidence before dealing with his evidence, and other evidence, pertaining to the individual plaintiffs. The doctor said this:

2346 First, his reports were based upon what he was told by the individual plaintiffs, together with what he had read in the pleadings (in most instances he was provided with the statement of claim and amended defence and counterclaim). Further, by the time that he saw the last two or three plaintiffs he already had some sense of the background of the situation. His reports concerning those plaintiffs contained or were informed by understandings that he had gained from previous plaintiffs.

2347 Second, he did not consider it part of his responsibility to seek corroboration of matters reported, or contradiction of such matters.

2348 Third, it was a "reasonable assumption" that all the plaintiffs had told him that they had been entirely denied their liberty during some part of SSP week.

2349 Fourth, save for Ms Lees, he saw each plaintiff for an hour or a little more.

2350 Fifth, he assumed the reality of the symptoms reported by the plaintiffs. In the case of each plaintiff, he agreed, there was a high level of subjectivity both as to the symptoms reported and as to what the plaintiff believed to be their causes.

2351 Sixth, he always looked for internal consistency in a patient's account.

2352 Seventh, to my question whether it was necessary for him to take at face value what the plaintiffs had said about the circumstances of their alleged imprisonment, he felt he had little choice in the sense that he had no reason to doubt that they were credible witnesses, though because of what others told them there would be some distortion of memory over time.

2353 Eighth, he was told of a police presence during the week. So far as any plaintiff had referred to the police, it was in terms of bitter disappointment. The plaintiffs felt that the police were siding with the loggers. That added to their sense of anger, frustration and betrayal.

2354 Ninth, it was his impression that the plaintiffs were idealists, that their involvement at SSP arose from idealism. That impugned against the "increasingly harsh reality of apparent deprivations, deprivations of sleep" [1286].

2355 Tenth, he knew something of a confrontation on 24 January. He understood that the purpose of the protesters' camp being at the particular point "was to interfere with a logging activity" [1287].

2356 Eleventh, he was unaware that Ms Calvert had said to the protesters that if they wanted to go, they should go now, because the loggers were going to set up a picket.

2357 Twelfth, he was sure that the protesters had no idea "it was going to last as long as it did or be as unpleasant and miserable as it was" [1288]. Even treating the protesters as "volunteers", studies showed that protesters who became torture victims had been deeply traumatised.

2358 Thirteenth, isolation is one of a number of factors which people can find traumatic. He had found that isolation in combination with fear, fatigue and uncertainty creates a vicious circle. It was his impression that the plaintiffs felt that few people knew what was happening; and that even after 26 January they believed themselves to some extent to be abandoned by the wider community. He did not know that a television crew had been at the camp on the Monday or Tuesday, or that Ms Miller had attended on the Tuesday. He was not aware of Ms Nelson's Wednesday message referring to "good media". He had approached the matter on the footing that the people within the camp at least had a perception that they were isolated and without help.

2359 Fourteenth, it was his impression that the plaintiffs became increasingly exhausted with the passage of days. Sleep deprivation over a couple of days has some impact on a person's capacity for coping.

2360 Fifteenth, subsequent attendances at rallies and protests would only tell him that whatever symptoms the plaintiffs had were not severe enough to prevent such attendances; not that his diagnosis was wrong. Further, it would not necessarily be relevant to know how soon after SSP week a plaintiff resumed protest activity. There can be a period of euphoria, or denial.

2361 Sixteenth, the evidence seemed to indicate that if a sufferer from post traumatic stress disorder perceived what had happened to him or her was the deliberate act of another, then the disorder may be more severe and more prolonged.

2362 The general aspects of Dr Epstein's evidence create, I consider, a number of problems in determining whether any of the plaintiffs in respect of whom his reports were tendered suffered compensable injury - that is, injury in consequence of the offending conduct.

2363 First, his diagnoses of psychological injury were founded upon his acceptance that the plaintiffs, being credible witnesses, had given him a generally accurate account of their symptoms. But I have concluded, having seen each of them in the witness box for protracted periods that, in respect of what occurred during (and in some cases before) SSP week, they were unreliable witnesses, and seriously so. It is hard to see that such unreliability can be quarantined from the plaintiffs' accounts of symptoms allegedly flowing from the events of the week.

2364 Second, it seems very clear that the doctor assumed that the plaintiffs had been imprisoned during SSP week; and I have concluded that they were not.

2365 Third, it is in part a corollary of the previous matter, the doctor seems to have concluded that isolation, in the sense that he described it, was an operative feature in causing the mental disturbances which he diagnosed. He knew nothing, however, of the attendance of the television crew and Ms Miller, nor Ms Nelson's note and its attachments. Neither - it seems an inevitable inference - did he know anything of the attendance of the regional journalist on 27 January.

2366 Fourth, the accounts given to Dr Epstein about what transpired during SSP week - this will become more obvious when I discuss his individual reports - were generally along the lines of the evidence given by the plaintiffs in examination in chief; evidence which in substantial measure I have rejected.

2367 Fifth, it is one aspect of what I have just said, the doctor seems to have accepted the reliability of asserted protester belief that the police were, in effect, in the hands of the loggers. I have concluded that this was not in fact the position; and that, to the contrary, the evidence of Robinson and Johnson was to be preferred to the contrary evidence of, inter alia, McFadzean, Ms Lees, Dwan and Bowles. If any plaintiff examined by Dr Epstein held the belief stated, it was not justified by the events of SSP week. But even if such belief had been held, in circumstances where police conduct justified it, how could that become the responsibility of the defendants?

2368 Sixth, subject to further analysis of his individual reports, the doctor seems to have concluded that all the events of SSP week, as he understood them, came together to cause the mental disturbances which he diagnosed. But I have concluded that what could be relevant is injury of which the offending conduct was a sufficient cause. The doctor did not address that question, although, clearly enough he identified sleep deprivation and its assumed consequence as a matter of relevance.

2369 Was it for the plaintiffs to make out a connection between the offending conduct, particularly so far as it caused sleep deprivation, and the diagnosed conditions; or, the doctor having included sleep deprivation and its consequences as matters which, together with others, caused the diagnosed conditions, was it for the defendants to unscramble the egg? That is not the same issue as faces a defendant who wishes to show, if he can, that an apparently compensable condition was in part, at least, attributable to some pre-existing condition - an issue which also arises in this litigation in several instances.

2370 Very little was said by counsel about either of the issues just mentioned. Counsel for the plaintiffs submitted, I think addressing the first of them, that it had been for the defendants to put alternative scenarios, and then ask Dr Epstein whether it altered his opinion [1289]. That sort of thing was done by defendants' counsel, to an extent, in cross-examination [1290]. But it was evidently a task which, had it been undertaken comprehensively, would have taken a long time; for the possible variations in my possible conclusions were extremely numerous, and on the plaintiffs' submission, as I understand it, each of them must have been addressed.

2371 What I have called the first issue is not one of a defendant seeking to show that some part of an accepted injury was not attributable to tortious conduct. It rather addresses the question whether a plaintiff has shown that the defendants' tortious conduct caused any injury, in circumstances where a key witness connects the injury with tortious conduct consisting of A and B and C, and where the court later holds that the tortious conduct consisted of A alone. That situation is unlike the situations which arose in cases such as Watts v Rake [1291] and Purkess v Crittenden [1292]; just as it is unlike the situation which arose in Bonnington Castings Ltd v Wardlaw [1293], where it was held to be enough for a plaintiff to show that "guilty" dust contributed materially to a disease. That, by analogy, was not what the plaintiffs sought to show here.

2372 In the event, I doubt that it was for the defendants to adduce evidence that the doctor would have abandoned his opinion that there was a causal link between the conditions which he diagnosed and the events of SSP week had he known that only some aspects of those events were pertinent. But I do not consider that this determines the causation issue adversely to the plaintiffs. For whilst the doctor's expert opinion was of course very relevant, the questions whether a plaintiff suffered any injury and if so whether it was sufficiently caused by any offending conduct of the defendants must be answered by me on a consideration of all the evidence.

2373 I go to the evidence of injury suffered by the individual plaintiffs.

Ms Jackson

2374 The import of Ms Jackson's evidence was that she did not really sleep on any of the Monday, Tuesday or Wednesday nights. She referred in her evidence to the use of chainsaws, particularly on the Tuesday and Wednesday nights, generator noise, floodlights, and constant death threats. [1294]

2375 This plaintiff was evacuated by ambulance to Apollo Bay on 28 January. I have earlier described the somewhat murky circumstances which led up to her evacuation. A photograph of her leaving the area went into evidence. [1295] She gave evidence of attending and being examined at the Clinic, and of remaining there for about 40 minutes, maybe a bit longer. She gave no evidence of being given any treatment after the examination. She gave no evidence of having suffered physical injuries.

2376 Ms Jackson said that for a number of months after SSP week she was extremely edgy and nervous. She often had nightmares. She became edgy when she heard chainsaws or chain movers. Even as at trial, when she heard chainsaws, she became nervous or it took her back to the time of the SSP incident. For a few weeks after the incident she became edgy when she saw big or fat men wearing fluorescent Tee shirts. Generally, she was extremely anxious and nervous for a period of several months after SSP week. [1296]

2377 Ms Jackson gave evidence also of an incident about a year after SSP week when she felt herself unable to persist with a visit to the Otways.

2378 A number of the protesters gave evidence that Ms Jackson's condition deteriorated during SSP week. Reference was made to her withdrawing from the group, and crying; and to her being shaky, distressed and exhausted. That evidence suggests that her immediate response to the events of the week exceeded that of any of the other protesters.

2379 Ms Jackson's mother gave evidence that when saw her daughter on the Sunday after SSP week the latter looked very bedraggled and tired, and did not want to talk much. Normally, she said, her daughter is extroverted.

2380 At a time prior to SSP week, the witness said, her daughter had participated in family counselling; but she had not recommended that her daughter seek medical treatment by a psychiatrist or psychologist.

2381 After the SSP incident, according to Mrs Jackson, her daughter did not seem to cope very well with her life. She suggested that her daughter see a doctor; and also referred her to a psychotherapist. Her daughter's apparent loss of self assurance had continued, she said, on and off for a good few months. Even at trial her daughter was not as confident as before.

2382 Neither the general practitioner nor the psychiatrist whom Ms Jackson attended after SSP week was called; nor was the counsellor whom Ms Jackson had attended before the SSP incident. Nor again was any record made at the Clinic put into evidence.

2383 The ambulance record, as I have earlier noted, was seemingly unremarkable insofar as it noted any physical findings.

2384 I go to Dr Epstein's report. The history which the doctor took diverged in a very considerable number of respects from Ms Jackson's evidence of events preceding, during and following SSP week. Further, in a considerable number of respects, so far as it pertained to the events during SSP week, the history provided was contrary to conclusions which I have reached.

2385 So, for instance, Ms Jackson apparently told the doctor that

• When attempting to leave on 25 January she was, inter alia, pushed.

• On the Monday night her sleep was very disturbed. There were floodlights, generators and chainsaws and people wandering through the camp.

• On 26 January, the noise was almost constant with yelling, chainsaws and generators. Overnight the noise continued.

• The situation remained much the same on 27 January.

2386 Ms Jackson also gave the doctor a history, as at March 2001, of continuing to have "intermittent panic attacks", which she had suffered from the outset; and she told him of having had "flashbacks" in the period following SSP week. Further, she told the doctor of then being uneasy going into the forest, and seeing loggers; and apprehensive and uneasy about becoming involved in environmental activity.

2387 Dr Epstein evidently accepted that in the course of the SSP incident Ms Jackson had been imprisoned; and had been subjected to abuse, noise and lights, so as to effectively prevent her from sleeping. Against that background, and having regard to her account of symptoms, his diagnosis was that she had developed a mild phobic anxiety disorder which by the time of his consultation she had substantially overcome.

2388 Dr Serry was also provided a history which differed markedly from conclusions which I have reached about what happened during SSP week, most particularly as it involved Ms Jackson. Further, her complaints to him as to the emotional consequences of the incident and their persistence did not mirror her evidence.

2389 On the footing that Ms Jackson had been denied her liberty, deprived of sleep, subjected to verbal abuse including death threats, this being accompanied by a "profound sense of confusion in relation to justice issues via the role of police", Dr Serry concluded that

[621]

2390 He further concluded that the severity of the post-traumatic anxiety symptoms had diminished significantly "over the last few years".

2391 Dr Epstein gave oral evidence with respect to Ms Jackson. I should mention a few aspects of that evidence.

2392 In examination in chief, referred to Dr Serry's report, Dr Epstein said that it suggested that his prognosis had been too optimistic.

2393 Cross-examined, Dr Epstein said that:

• Ms Jackson had regarded herself as being weak, as having failed. This, he concluded, had contributed to some of her distress after the incident.

• Ms Jackson had not told him of the confrontation of 24 January. It would have been relevant to know of the same.

• Ms Jackson had not told him of a network of support during the week, or of media attendances.

• Ms Jackson had not reported the presence of the police.

• Ms Jackson had not referred to any proposed agreement.

• He did not know that Ms Jackson had said, at a confrontation with Ms Calvert on 25 January, "This is excellent, no work today. I think that's a win for us."

2394 Re-examined, the doctor said that the remark just mentioned contrasted with the need for Ms Jackson to be evacuated on 28 January. It reinforced his conclusion that she was unable to cope.

2395 I go to my conclusions. It is, I think, a question of considerable difficulty whether Ms Jackson suffered compensable injury attributable to the offending conduct of the defendants. Ms Jackson herself was an unreliable witness. Her evidence of events which occurred at SSP intersection was distorted. It did not fit the account of events which she gave Dr Epstein. Her account to Dr Epstein was notable for what it omitted, as well as for what it said. The symptoms of which she gave evidence did not mirror the symptoms which she described to Dr Epstein. Again, the circumstances of Ms Jackson's evacuation from SSP were murky; and this was compounded by her attendance at the Parliament House counter-rally on the following Monday, and her remark to Molloy. It is not obligatory for me to conclude that she attended the rally because she was euphoric, or in denial. Further, there was a notable failure to call treating doctors. Finally, for reasons indicated, it was Dr Epstein's opinion that Ms Jackson's condition was attributable to a range of circumstances during SSP week, some of which I have concluded either did not happen, or were significantly misrepresented.

2396 On the other hand, it is the fact that the other protesters seem to have considered that Ms Jackson was the person most affected by the events of SSP week at the time. Again, Mrs Jackson did give evidence which to an extent supported her daughter's evidence, and each of the doctors, albeit on an unsound foundation, concluded that Ms Jackson was suffering from psychiatric injury.

2397 It is a very close run thing, but I conclude, looking at all the evidence, that Ms Jackson did suffer such an injury of which the offending conduct was a cause sufficient in law. Of all the things alleged by the plaintiffs to have happened, and to have affected them, one thing that was established was that on two nights sleep was made difficult by the defendants' conduct as earlier described. That was apt to cause fatigue and distress in some people. I think that, compounding such impact as the incident of 25 January had upon her, it did so in Ms Jackson's case, and I think that it led on to psychiatric injury.

2398 In my opinion Ms Jackson should be awarded compensatory damages including aggravated damages. I consider that she should be awarded such damages on the footing that in very large measure, though not completely, the effects of her compensable injury were spent within, say, six months of SSP week; and that even in that time their impact in terms of day to day living was not great.

2399 Counsel for the plaintiffs submitted that Ms Jackson should be award $250,000 damages including $50,000 for her psychiatric injury. That submission was based upon a view of the facts dramatically at odds with the conclusions which I have reached. It is not to say, one way or the other, whether on the view of the facts advanced by counsel damages in such amounts would have been appropriate.

2400 In my view, in respect of her Wilkinson v Downton claim, Ms Jackson should be awarded $30,000 damages against all the defendants save Arbuthnot, Brian Wheeler and Benson, that sum including $10,000 aggravated compensatory damages. As to aggravated damages, I have considered the evidence in the context of the matters which I discussed at paragraphs [102]-[106], [114] and [116] of these Reasons, and I have considered also the extensive submissions of plaintiffs' counsel in relation to the matter. To my mind, aggravated damages should be awarded, and in the amount specified, most particularly because the harm which was inflicted by the offending conduct was probably made the worse, from the plaintiff's perspective, by the way in which the defendants conducted themselves in inflicting that harm. Regardless of their purpose, what the defendants did in that connection showed little regard for the plaintiffs, specifically Ms Jackson.

2401 I have not been at all persuaded, however, given consideration of all the circumstances, that an award of exemplary damages should be made. Other matters apart, I am well-satisfied that the amount of $30,000 is adequate to punish the defendants for their conduct (which for this purpose I assume was outrageous), to mark the Court's disapproval of such conduct, and to deter its repetition [1297].

Greig

2402 I turn to Greig. According to his evidence in chief, the SSP incident had affected him in many ways. He had experienced periodical bouts of depression, and anxiety attacks. Politically, he was in total disbelief that this could happen. He was fearful for his safety. He had trouble communicating his feelings to his partner because he did not want to revisit the issue. He did not feel safe to travel in the Otways on his own. He sold his car so that he could travel and not be identified. He moved to a shared house so that there were men around to protect him in the event of some sort of retribution. He moved out of his girlfriend's house, and she did not understand why he did so. He had not been bush walking in the vicinity again because of fears for his safety [1298].

2403 Ms Nicole Cleary, a journalist, gave evidence that she is Greig's de facto partner. She met him shortly after SSP week. They began living together one month after they met. For a period of months, during 1999, they lived in Griffith, NSW, where she was working. Whilst in Griffith, Greig did bar work and studied at the local TAFE. He socialised with friends that she made through work. Before going to Griffith, Greig had bar work and was as happy in his work as any barman. They had a circle of friends, and had happy occasions with them almost every weekend. He had worked in a bar at Mt Hotham. She had visited twice at weekends. She had thought he was enjoying his time there.

2404 After their return from Griffith, Ms Cleary said, Greig became distant, a lot more argumentative and not happy, and increasingly anxious. They separated after 18 months. The separation lasted six to seven months.

2405 Three months after they met, she said, they went to the SSP site. Greig became very quiet and said that he could hear trucks. His reaction was to get out.

2406 On one occasion in 2001, Ms Cleary said, they drove to East Gippsland and stayed in their car overnight on a track leading into a logging coupe. Greig did not sleep.

2407 The witness gave evidence that she and Greig have quite often visited a property at Wye River owned by the latter's grandfather. When there, Greig is obsessed with going to places early in the morning.

2408 In his present job at Monash University, the witness said, Greig was committed, and sometimes worked back. But he had told her that he was thinking of leaving the job.

2409 Further according the witness, Greig remained obsessive about ensuring that doors were locked; and he could not make decisions, whether they be simple or complicated.

2410 Greig attended the Clinic on 29 January 1999. Mrs Beaumont saw him. His presenting problems were identified as

[624]

2413 The first of those notes, she said, reflected her description of Greig's presentation, the next was Greig's own description, and the last was something that she could observe. She knew, she said, that some of the patients had said they could not sleep because of noise.

2414 Dr Epstein interviewed Greig on 11 December 2000. He reported that Greig "appeared to have an even handed approach to the situation which had occurred", and that Greig impressed him as "trying to give a genuine account of his perception of the situation". The doctor opined that Greig has been subjected to a "frightening ordeal", and that "there seemed little doubt that during [SSP week] he was in a state of considerable fear, at times in fear of his life". The doctor diagnosed Greig as suffering from a "mild post traumatic stress disorder" in consequence of his ordeal. He concluded that Greig would benefit from four sessions of psychiatric or psychological treatment, that his prognosis was generally good, and that Greig did not appear to be significantly disabled by his condition.

2415 The history which Greig provided to Dr Epstein was considerably misleading. The following are instances:

• Nothing was said about Ms Calvert inviting the protesters to leave before the picket line was established.

• Greig's account that two people who attempted to cross the picket line were "dragged back by their hair" was unsupported by evidence.

• His history that on the Monday night generators were run without mufflers and that floodlights were shone into the camp conflicts with my conclusions.

• His history that on the Monday night faeces were thrown [into the camp] was unsupported by evidence.

• Contrary to the history which Greig gave, no logger made a throat-cutting gesture on the Monday night.

• Contrary to my conclusions, Greig told Dr Epstein that on 26 January the loggers and their families were drinking heavily.

• Contrary to my conclusions, Greig told Dr Epstein that food arrived on the Tuesday but that much of it had been thrown out.

• Contrary to the fact, Greig told Dr Epstein that the "break out" had been made on 27 January. He also told the doctor that the journey had taken in all five and a half hours.

• On the day of the break out, according to the history supplied, the "shop steward" had said he was a pig hunter and that if Greig did it again he would "kill [Greig] like I kill pigs", a threat which Greig took very seriously.

• On the Wednesday night, according to the history supplied - contrast the evidence - faeces were put in the protesters' cars.

• According to Greig's history, police officers arrived on 28 January "as they realised the situation was out of control". In fact they had been present since 25 January.

• Journalists and photographers arrived, according to Greig, on the Friday. In fact they were present on 26 and 27 January.

2416 Greig said nothing, it may also be noted, about his involvement in the occupation of the DNRE office at Ballarat on the Tuesday following SSP week. He gave, in my opinion, evasive evidence about that matter.

2417 Dr Serry, as I have said, interviewed Greig for the defendants in August 2003. He was not called.

2418 Greig has not in fact had any medical treatment since January 1999, specifically the treatment to which Dr Epstein referred. It could not be concluded that he has any intention of seeking such treatment.

2419 It is extremely difficult to conclude that Greig suffered any psychiatric injury of which the offending conduct was a cause. That is so for a number of reasons.

2420 First, Greig's evidence generally was extremely unreliable. It would be an act of faith to conclude that either his evidence about symptoms, or the history of symptoms which he gave to Dr Epstein, was reliable.

2421 Second, Dr Epstein's opinion that Greig suffered from psychiatric injury, and its relationship to the SSP incident, was founded upon a history which was far from even-handed. The history was very wrong about very many things, almost always in a way that created the impression that Greig had undergone an ordeal different in kind and magnitude to that which, as I have concluded, occurred. There could be no satisfaction that opinion based upon such a flawed history was sound. The doctor's opinion that there was a relationship between the diagnosed condition and the events of SSP week depended, I add, upon the whole gamut of circumstances which Greig described.

2422 Third, Ms Cleary's evidence was all "after the event". It said nothing as to what Greig's presentation had been like before SSP week. Moreover, and importantly, the burden of Ms Cleary's evidence was that Greig had become anxious and obsessive after they returned to Melbourne from Griffith. That was about 11 months after the SSP incident, and for some of that time Greig had lived in Melbourne and otherwise in Victoria.

2423 Fourth, Greig's evidence as to his symptoms suggested that in late 2003 his condition was at least no better than it had been nearly three years earlier when seen by Dr Epstein. Such a situation would run counter to the doctor's prognosis, and was unexplained by medical opinion.

2424 Fifth, in circumstances where there is otherwise room to doubt whether Greig suffered any psychiatric injury, I consider that his attendance at the occupation of the DNRE office within a matter of days after SSP week tells against him having suffered injury, or at the very least that any injury was of significant extent.

2425 Sixth, I would not draw any inference adverse to the defendants by reason of their failure to call Dr Serry. The evidence adduced for Greig was so open to attack that the defendants were entitled to think that nothing more could be achieved by calling Dr Serry. Such a forensic decision is at least as likely an explanation why the doctor was not called as an explanation that the defendants did not call him because they knew or believed that his evidence would not help their case.

2426 It could easily be said, in light of the considerations to which I have referred, that there is no way in which a conclusion favourable to Greig could be reached. But I have come to a different conclusion. Having heard Greig give his evidence, and having watched him in the witness box, I take him to be a person of emotional lability. He was exposed to sleep depriving conduct, and I would accept that his sleep was disturbed [1299]. I consider, in an emotionally labile individual, that sleep deprivation and exposure to other offending conduct might lead to mental distress which in turn could contribute, I think, to symptoms of a post traumatic stress disorder. That is what I conclude happened in Greig's case.

2427 On the other hand, I cannot accept that the disorder was ever significant or that it was long-lived. Ms Cleary's evidence of Greig's disposition before they left for Griffith tells to the contrary. Dr Epstein's evidence also suggests that, to the extent that any symptoms remained as at December 2000, they were not a significant disability. To that may be added the fact that Greig's history of work and study since January 1999 is compatible with his history of work and study prior thereto.

2428 I consider, in the event, that in respect of his Wilkinson v Downton claim Greig should be awarded $22,500 damages against all the defendants save for Arbuthnot, Brian Wheeler and Benson, that sum including $7,500 aggravated compensatory damages. I consider there should be no award of exemplary damages. What I said in connection with Ms Jackson's claim about aggravated and exemplary damages equally applies.

2429 Finally, I mention the submission as to damages made by Greig's counsel. He contended that an award of $240,000 should be made, including $40,000 ordinary compensatory damages for the psychiatric injury. Those submissions, as in the case of other plaintiffs, were founded on a perception of what occurred at SSP which is very different to what I have concluded was the fact.

Ms Gross

2430 Counsel for Ms Gross made no claim on her behalf for ordinary compensatory damages for psychiatric injury. Neither did he make any mention of a claim in respect of distress - at least in a Wilkinson v Downton context. Quite apart from those matters, the record of the Clinic pertaining to Ms Gross, for reasons stated, does not provide evidence that she suffered psychiatric injury. She herself gave no evidence of adverse consequences of the SSP incident, let alone relate any consequences to the offending conduct. There is, in the event, no basis for making an award of compensatory damages in favour of Ms Gross on a Wilkinson v Downton claim.

Dwan

2431 In his evidence in chief, Dwan gave this account of injuries which he had sustained.

[632]

2440 The doctor considered that the symptoms had settled, were then stabilised, but were still present to some extent. He opined that Dwan would benefit from four consultations with a psychiatrist or psychologist.

2441 The history provided by Dwan to Dr Epstein made no mention of Ms Calvert's invitation to the protesters to leave before a picket was established. It did refer to incidents in which Dwan claimed to have been personally threatened. I have concluded that those incidents either did not happen or caused no fear.

2442 Dwan's history to Dr Epstein adverted at three points to his sleep having been impaired, and once to him having become increasingly exhausted and frustrated.

2443 Dwan apparently led the doctor to understand that bruising and a broken tooth may have been the result of a scuffle on 28 January. He gave no evidence of suffering such injuries.

2444 Dwan's girlfriend, to whom he referred in his evidence in connection with his asserted injuries, was not called. But neither was Dr Serry, who examined Dwan on the defendants' behalf in August 2003.

2445 Dwan was, in my opinion, a thoroughly unreliable witness. I have described his presentation, generally, at paragraph [230] of these Reasons. In the paragraphs which follow I have described a pattern of unreliable evidence which he gave, and his willingness to mislead DNRE officers. When describing the events of SSP week, I have often declined to accept his evidence.

2446 I am not satisfied that Dwan suffered post traumatic stress disorder at any time. To conclude otherwise would require acceptance as a first step of his account of his symptoms given in evidence (to the extent that such evidence was compatible with the description of symptoms which he gave to Dr Epstein).

2447 Whilst Dwan was exposed to the offending conduct, and to sleep deprivation over several nights, and whilst I can accept that this might cause or contribute to the onset of post traumatic stress disorder, it does not follow, because Dwan described symptoms, that they represented the truth of the matter from his perspective. In considering whether Dwan's account of symptoms should be accepted I think that assistance can be got not only from the quality of his evidence generally, but from what is to be made of him from my seeing him in the witness box over a period of days, his presentation on video tapes which were made before and during SSP week, and as well the nature and internal consistency of the symptoms which he reported. I add that in determining whether Dwan probably experienced the symptoms of which he complained, the absence of treating medical evidence, in particular for the period between January 1999 and March 2001 - that is, between SSP week and the time when he consulted Dr Epstein - at least does not positively assist a conclusion that he did suffer the same.

2448 Apart from Dwan being a generally unreliable witness, my seeing him in the witness box, and on video tape recorded before and during SSP week, disclosed a very similar presentation. Dwan gave the distinct impression of having been before and during SSP week, and of still being, self-contained and confident in his very distinctive way. Again, in his evidence he described consequences of his mental upset - I instance fear of going into Colac except in disguise - which could not withstand scrutiny. I have said why that is so in the case of the matter just mentioned. Another instance is his history of having been less trusting of authority since SSP week. It is, in my view, clear that before SSP week Dwan regarded those in authority as the other side. The idea that he was trusting of authority before SSP week is not tenable.

2449 I have not forgotten that Dr Serry was not called, nor that Ms Nelson gave evidence in support of Dwan. The defendants' failure to call Dr Serry is open to equally rational explanations, as was the case with their failure to call him in Greig's case. Ms Nelson's evidence assisted Dwan, but I do not regard her as having been an objective witness. Moreover, I think that Dwan gave no evidence of erecting a fence after SSP week, let alone advance a reason for doing so.

2450 Even if I had accepted Dwan's evidence of symptoms experienced since SSP week, and even if I was to accept Dr Epstein's diagnosis, it would not follow that Dwan's Wilkinson v Downton claim should succeed. It is one thing to conclude that Dwan was exposed to the offending conduct and suffered some sleep deprivation, perhaps in association with other offending conduct, and that in a given case sleep deprivation might cause mental distress, this causing or contributing to the onset of post traumatic stress disorder. It is another thing to be satisfied of such a connection in a particular case. For several reasons, Dr Epstein's report would not assist such a conclusion in Dwan's case; and I would not have been satisfied that Dwan's evidence carried the matter sufficiently far.

2451 In the event, Dwan's Wilkinson v Downton claim fails.

Ms Lees

2452 In examination in chief, Ms Lees gave evidence that the incident, she felt, had had a huge impact on her and her life and her life plans. After her release she was very jumpy and angry and could not relax. She was paranoid about four wheel drive vehicles. She could not leave the group for 10 days. When she returned to Melbourne she could not relate to her housemates. She was very angry and still very nervous about four wheel drives. In the intervening years she had returned to the Otways and returned to protest in the Otways. Whilst, however, she had kept the same vehicle, she was fearful driving through forests at areas in the Otways. She had suffered recurring nightmares of being chased through the bush with chainsaws, and of being trapped. For the first couple of years, she believed that she had nightmares twice a week. Now it was about once a month. She had been told that she screams in her sleep at times. At times she had felt guilt over not being able to be more involved because she is too scared. In 1999 she resumed her course, but deferred for six months in 2000. She felt that her studies had been affected, although she got good marks.

2453 The only other lay evidence of after-effects of SSP week upon Ms Lees was given by Ms Nelson. The latter said that since that time Ms Lees had been more edgy and had not come out to forest protests. She said also that Ms Lees becomes very emotional when referring to the SSP episode.

2454 Ms Lees gave evidence of sleep disturbance, particularly on the nights of 26 and 27 January. In that connection she mentioned, inter alia, the noise of chainsaws, a generator, a drum; and as well floodlights and abuse. She said that she did not "fully sleep" on the night of 26 January. She napped at times [1302]. On the night of 27 January she was, she said, awake for the majority of the night, although she did slip into sleep at times [1303].

2455 The record of Ms Lees' attendance at the Clinic was made by Mrs Beaumont. The only abnormal physical finding on formal examination was an increase in Ms Lees' pulse rate. Mrs Beaumont did, however, note that Ms Lees was teary - apparently in connection with a reported death threat; and that she, the nurse, had given her patient advice about obtaining a restraining order if any further threat was made. Mrs Beaumont also noted in her observations: "Exhaustion, mental fatigue".

2456 Pausing for a moment, the Clinic record does not suggest that Ms Lees was suffering from physical injury. Neither does it disclose psychiatric injury. On the other hand, the record probably indicates a degree of anxiety, at least in the lay sense, when attention is trained on Ms Lees' teariness - and perhaps upon the increase in her pulse rate, despite her blood pressure being unremarkable.

2457 Dr Epstein's report chronicles Ms Lees' disturbed upbringing, her prolonged problems with alcohol and other drugs, the violent death of a boyfriend, her failed relationship with Dwan, her work with Oren from the time of its foundation, and her resumed education in 1998. It chronicles also Ms Lees' account of what happened during SSP week, the symptoms from which she thereafter suffered, their continuance or otherwise, and subsequent troubling events in her life. The doctor expressed these conclusions:

[635]

2459 The doctor opined that Ms Lees would benefit from eight weekly sessions of psychiatric or psychological treatment, and possibly from a further six consultations over a six month period. He further concluded that her prognosis had improved and that her symptoms were not associated with the same level of disability as had earlier been the case.

2460 Ms Lees did not have any psychiatric or psychological treatment between March 2001 and trial. I could not conclude that she had any intention of having such treatment thereafter.

2461 Dr Epstein's report creates many problems. Ms Lees gave the doctor a history with respect to a number of things - events and symptoms - of which Ms Lees gave no evidence. Some of the reported events could stand, however, as admissions against interest. Further, the report notes an account of events given by Ms Lees concerning SSP week which was both incomplete and, in light of conclusions which I have reached, misleading. I should explain these observations.

2462 According to the doctor's report, Ms Lees told him nothing about -

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

• Ms Calvert's invitation to protesters to leave before the picket was set up.

• The longish walk into SSP coupe which she made with Ms Dawson and Kennerson on 27 January.

• Dancing and firesticks in the protesters' camp on the night of 25 January, and dancing on the night of 27 January.

• Remaining determined on 29 January to stay at SSP unless and until the picket was lifted, and that she and others so minded sought to influence other protesters to remain.

• Attending the DNRE sit-in on the Tuesday following SSP week.

2463 I go to matters which Ms Lees reported to Dr Epstein, about which she either gave no evidence, or in a few instances gave evidence which was well short of the history provided. She described -

• Having panic attacks with shortness of breath, palpitations and light-headedness.

• A number of people arriving from East Gippsland to support the protesters on 30 January, and the occurrence of a further confrontation.

• Having gone to a protest camp in the vicinity of Riley's Ridge, staying three days, in (?) October 1999; of feeling, driving into the forest, that she had a severe panic attack; and, although there were no loggers about and no chainsaws or strong lights, of being very jumpy, on edge, and anticipating violence at any time.

• Having been involved in a major incident involving logger violence at Middlespur camp on 2 March 2000, in the course of which she was struck on the hand and had bruising; and in consequence of which five people were hospitalised.

• The occurrence of a further incident, two days after the Middlespur incident, in which 50 loggers assaulted some protesters very violently and she became distressed.

• Having attended a psychologist, Ms Cynthia Foa, for eight sessions following the Middlespur incident, those consultations beginning in April 2000.

• Having lost a stone in weight between January 1999 and June 2000, her weight having increased thereafter.

2464 I turn to matters recorded by Dr Epstein that cannot stand with conclusions which I have reached about what happened during SSP week. Ms Lees told the doctor that -

• On the night of 25 January there were floodlights, the noise of chainsaws throughout the night, and periodic episodes of people walking through the camp.

• There was heavy drinking by the loggers on 26 January.

• People continued to walk and at times run through the camp on 26 January.

• There was abuse and rock throwing towards the end of 26 January, and the continual noise of chainsaws.

• [On 26 January] she was pleading with police officers either to let them out or to get more backup.

• On 27 January a man threatened her with chainsaws - putting an operating chainsaw each side of her head, which she found very frightening.

• The episode involving Arbuthnot on 28 January was an assault on the camp in which people were running through the camp to try to dismantle it, two or three people staying to defend it.

2465 Dr Epstein was cross-examined specifically with respect to Ms Lees. He gave evidence that the types of events which she had described happening before SSP week in his experience led to depression, and less commonly anxiety. Ms Lees' description of avoidance phenomena, nightmares, flashbacks and so on suggested that a particular traumatic event had contributed thereto. The doctor agreed, however, that some symptoms are common to depression and anxiety.

2466 The one occasion on which Dr Epstein examined Ms Lees was more than two years after SSP week, more than a year after the writ was issued, and about two and a half years before trial. Further, the psychologist whom Ms Lees consulted in 2000, who might have been expected to cast some light on Ms Lees' then psychological condition, and the non-physical impact of the assault in March 2000, was not called. On the other hand, Ms Lees was examined by Dr Serry, for the defendants, in August 2003; and he was not called.

2467 The state of the evidence, I consider, is tremendously unsatisfactory. Ms Lees' evidence about what happened during SSP week was unreliable in a number of respects. Her account of symptoms after SSP week was abbreviated, and yet asserted continuing problems. Her account of what happened at SSP, as provided to Dr Epstein, was inaccurate both for what it said and what it omitted. Her account of symptoms subsequent to SSP week, as provided to Dr Epstein, differed markedly from her evidence. She told him about symptoms of which she said nothing in her evidence. She told him also - they stand as potential admissions against interest - of a confrontation on 30 January 1999, of violence done to her in March 2000, and of a troubling incident shortly following that violence. Further, as I read the history which Ms Lees gave to the doctor, she emphasised to him the occurrence of many things during SSP week which caused her to be fearful. But there was no reference in the history which she gave of sleep disturbance. In diagnosing post traumatic stress disorder, the doctor said that it is a condition "in which people must be exposed to situations which involve actual or threatened physical harm to self or others". Obviously, on the history with which he was provided, it could readily be concluded that there was actual or threatened harm. But I have concluded that there was very little logger conduct that could have or did induce any such fear.

2468 Given the very unsatisfactory state of the evidence from the plaintiff's perspective, I would not draw any inference adverse to the defendants by reason of their failure to call Dr Serry in connection with Ms Lees' claim. That is so for reasons discussed in connection with their failure to call him in Greig's case

2469 In the event, if Ms Lees' Wilkinson v Downton claim is to succeed, I think that it must do so, in a sense, despite rather than because of Dr Epstein's evidence. Looking at all the evidence, I have reached the following conclusions:

2470 First, Ms Lees' sleep was disturbed by the offending conduct on the nights of 26 and 27 January.

2471 Second, sleep disturbance probably gave rise to fatigue and, perhaps in combination with the other offending conduct, to resulting mental distress. But I could not conclude that the extent of such distress was as great as that experienced by Ms Jackson.

2472 Third, it is probable that the distress gave rise to a degree of anxiety, which manifested itself after, rather than during, SSP week.

2473 Fourth, the anxiety probably contributed to the development of psychiatric injury, which may be characterised as post traumatic stress disorder.

2474 Fifth, this condition manifested itself in a person who had probably suffered prior psychiatric disorder associated with or in consequence of earlier life experiences. Perhaps Ms Lees was in consequence more vulnerable to the impact of the offending conduct. Nonetheless, I conclude that her psychiatric illness after SSP week was sufficiently caused, in law, by the offending conduct.

2475 Sixth, the extent of the injury was nowhere near as great, or as long-lived, as Ms Lees suggested either in evidence or in consultation with Dr Epstein. From a time soon after SSP week she reinvolved herself in forest protest activity and related matters. I consider that her evidence about that involvement, and what she told Dr Epstein about it, were understatements of the true situation. Moreover, the only medical treatment which Ms Lees had for any psychological problem between January 1999 and trial followed, by her admission, a later incident in which she was assaulted. Again, it is the fact that she had successfully completed her tertiary studies in 1999 - that antedating the later assault.

2476 Seventh, taking account of conclusions already expressed, I am satisfied that Ms Lees suffered some non-disabling but occasionally troubling symptoms of post traumatic stress disorder, attributable to the defendants' conduct, up to the time when she began to substantially reinvolve herself in forest activities in late 1999. If Ms Lees did suffer any symptoms thereafter - and particularly from March 2000 - the same were more likely the consequence of later stressful episodes. I do not accept that her compensable symptoms were ever of great moment.

2477 In the event, I consider that Ms Lees should be awarded damages on the footing that her symptoms of compensable post traumatic stress disorder lasted somewhat longer than in the case of Ms Jackson's symptoms attributable to that disorder; but that they were never as intense. I consider that the amount of ordinary and aggravated compensatory damages should be the same in each case, notwithstanding that counsel for the plaintiffs proposed a greater amount of compensatory damages in the case of Ms Lees - $80,000 compared with $50,000 for Ms Jackson. The award of $30,000 in Ms Lees' favour should be made against the defendants other than Arbuthnot, Brian Wheeler and Benson.

McFadzean

2478 Asked about the impact of the week, McFadzean said that immediately after it happened it had an enormous impact on him. He experienced episodes of anxiety, depression, sleeplessness, jumpiness, nervousness. He was scared of people who were or looked like people in the logging industry or the loggers. He was obsessed with security in his home and in his vehicle. He resisted driving through the forest, particularly at night. He resisted spending time in the forest, especially at night, although on occasions he did so as part of his work. He also experienced, perhaps most severely, nightmares of his experience and other traumatic experiences before that in his life. [1304]

2479 That was the only evidence which McFadzean gave in examination in chief pertinent to psychological sequelae of the SSP incident. It was given in the past tense. Nothing was done to attach those alleged symptoms to any particular aspect of the SSP incident.

2480 Maureen McFadzean, mother of the plaintiff, gave evidence on her son's behalf, having been asked to do so, she said, only two days earlier; that is, in early December 2003, the trial having commenced on 13 October 2003. According to her evidence, her son had changed psychologically and emotionally since SSP week. He had come to live with her for a period of about a month after SSP week, and had lived with her intermittently thereafter. He had shown a fear of going to sleep; and did not sleep well. He appeared to be very stressed after the incident. He was more irritable. He was also very withdrawn. His friendships seemed to contract to people in the environment movement, particularly people who had been through a similar traumatic experience. Coming up to the trial he had been more stressed and withdrawn than previously.

2481 Cross examined, the witness gave doubtful evidence of what contact she had with her son after his return from Queensland in late 1998; and gave evidence which showed that she had had little contact with her son whilst he was in Queensland. She said that she noticed no change in her son's behaviour when he returned from the Philippines, although he told her that he knew that someone had been shot [in the course of a demonstration]. She recalled her son claiming that he had been assaulted at the Richmond Secondary College in 1994, and of him being involved in litigation thereafter. She was also aware of her son having been involved in a confrontation with police outside a DNRE office sometime between 1994 and 1996, and of believing that it went to court. She recalled him saying that he was very distressed about that incident, that he was having nightmares and flashbacks, worried about it a good deal, and was more concerned about his safety and security. She recalled her son telling her, also, of some incidents in which he had been punched and abused in forest actions in 1994 and 1995. She recalled him making a Crimes Compensation Tribunal claim. She agreed that her son had "some considerable experience in conflictual situations prior to 1999", certainly could not say that they had had no impact, but did not see any changes that she could identify. Both when he arrived back from Queensland and in the period of six months after SSP week, she said, her son had no girlfriend [1305]. She knew of her son's involvement in protests in the Otways in 2000; and, she thought, in the Central Highlands - in a media role - in 2001.

2482 Aspects of Mrs McFadzean's evidence in chief and evidence in cross-examination were not readily reconcilable. I think that she had relatively little contact with her son for a few years before January 1999. That is pertinent to her "before and after" appraisal. Further, I think there are difficulties about accepting her evidence that he was mentally unscathed, at least in large measure, by repeated incidents involving personal trauma, and in one case the death of a fellow demonstrator, yet was psychologically disturbed in an ongoing way by the events of SSP week - it involving no actual violence, and on the view I have taken, no threats of violence that could be taken seriously. In all, I think that Mrs McFadzean was an evidently proud mother who was prepared to go a fair way, being at best partly informed about pertinent matters, to assist her son.

2483 I mention next the Clinic record relating to McFadzean. It shows that he attended on 29 January at 11.30 am, and was seen by Ms Nelson.

2484 McFadzean told Dr Epstein that he attended the Clinic that day with the protester group, having met their convoy returning from SSP. It seems likely to me that his attendance that day was an evidence-gathering exercise. He reported that he was suffering from "sleep deprivation, shock, stress" from being "detained against [his] will for 4 days". One would think that he would have been more sleep deprived, shocked and stressed at the time of his arrival at Apollo Bay on 28 January. It was his evidence that he attended the Clinic that day. No record of that attendance went into evidence. Rather, the record that went in was made a day later, in the context of the mass attendance of the other protesters.

2485 Apart from the fact of his attendance on 29 January, the Clinic record shows, so far as formal examination findings are concerned, no abnormalities.

2486 Ms Nelson's note contains, on the other hand, her obligatory reference to -

[637]

for which McFadzean was being treated with eye drops.

2487 The circumstances in which McFadzean developed his conjunctivitis were the subject of considerable cross-examination [1306]. Nothing need be said about this matter, however, because as I understand the argument advanced for McFadzean - as distinct from the form of the statement of claim - it was not contended that he was entitled to Wilkinson v Downton damages for his conjunctivitis. A figure of $70,000 was advanced in respect of psychiatric injury.

2488 Attendance at the Clinic apart, McFadzean had received, so far as the evidence disclosed that situation, no medical treatment between January 1999 and the time when he gave evidence. He was, however, examined on one occasion by Dr Epstein, that being in April 2001.

2489 The doctor was given a history which included the following features: imprisonment, unsuccessful attempts to leave SSP, noise, heavy drinking by loggers, an increasing level of aggression, invasions of the protesters' camp, use of unmuffled generators, the directing of strong lights onto the camp, fear experienced by he and two women who locked themselves in his van, female protesters being followed, threats and harassment. It was a history which, by reference to conclusions which I have reached, involved profound misstatements and overstatements of what occurred during SSP week; and which omitted almost anything tending against the general thesis of imprisonment. Certainly, and understandably from his perspective, McFadzean told the doctor nothing about his intention, as I have concluded it was, on the morning of 25 January and thereafter; nor anything about Ms Calvert's invitations to protesters to leave before a picket was set up.

2490 The account which McFadzean gave to Dr Epstein of symptoms experienced since SSP week included reference to insomnia, nightmares, flashbacks, uneasiness, jumpiness, an obsession about security, fear of driving his van in the forest, problems with thinking, concentration, memory and productivity.

2491 Further in the history which he gave to Dr Epstein, McFadzean described symptoms experienced in consequence of violent incidents which had occurred before SSP week. They included being distressed, having nightmares, flashbacks and anxiety, being jumpy and on edge and being fearful of becoming involved in actions. It is very evident that McFadzean was familiar with the language of psychiatric illness, perhaps particularly post traumatic stress disorder, before SSP week. Note also that money claims of different kinds had ensued after earlier incidents; and that on two occasions at least compensation had been secured [1307].

2492 Treating McFadzean's history as being accurate - it including assertions that whilst in Queensland he was not assaulted, it was a less stressful environment and his symptoms seemed to settle completely - Dr Epstein opined that McFadzean was suffering from post traumatic stress disorder -

[639]

2493 The doctor considered that McFadzean would benefit from some psychiatric or psychological treatment - eight sessions in all. I pause to note that McFadzean has had no such treatment; and that I am confident he will not have it hereafter.

2494 The doctor finally considered that McFadzean's condition had somewhat improved, but flared again when he was in situations of potential violence; and that his prognosis was generally good.

2495 Dr Epstein was cross-examined, for the most part to underline matters of which McFadzean had not told him - such as the latter's attendance at the Parliament House counter-rally and the sit-in at the DNRE office. The doctor volunteered, incidentally, that he would have told McFadzean to do exactly those things had he been treating him. It was his impression that McFadzean had been "entirely forthcoming" about what had happened to him at SSP and shortly afterwards [1308].

2496 McFadzean was, as I have earlier noted, examined by Dr Serry, for the defendants, in late August 2003. The defendants did not call that doctor to give evidence.

2497 In order to be satisfied that McFadzean suffered the psychiatric injury diagnosed by Dr Epstein I would need to be satisfied that his evidence as to symptoms which he experienced was truthful, that those symptoms had fresh onset after SSP week, and that they represented something more than ordinary human reaction to an unpleasant event. In order to be satisfied that such psychiatric injury, assuming its existence, was compensable, I would need to be satisfied that the defendants' offending conduct was a sufficient cause thereof.

2498 McFadzean has not satisfied me, for more than one reason, that he suffered compensable psychiatric injury. So, whilst I can accept that McFadzean suffered some emotional symptoms in the immediate aftermath of SSP week, I do not accept his evidence that he suffered the gamut of symptoms upon which Dr Epstein relied in making his diagnosis. Again, I am not satisfied, if the condition diagnosed by Dr Epstein was present, that it was caused or contributed to by the offending conduct.

2499 In concluding that any symptoms experienced were very likely minor, short-lived, and not such as would support Dr Epstein's diagnosis, I note the following:

2500 First, McFadzean's evidence was unreliable in a very large number of instances - instances pertaining to things which happened and did not happen during SSP week, things which happened before and after that week. His unreliability was not, in my opinion, generally attributable to simple mistake or faulty recollection. It was rather the product of considered responses with the characteristics described at [287] of these Reasons.

2501 Second, McFadzean could not but have known that the range of symptoms which he claimed to experience after SSP week were essentially incapable of verification or disproof; for they were symptoms of feelings.

2502 Third, symptoms with which McFadzean was familiar were pertinent to a diagnosis of post traumatic stress disorder. He had, on his account, experienced them on past occasions in a compensation setting; although, fortuitously, they had wholly disappeared before SSP week. I pause to remark again that in the history which he gave to Dr Epstein, McFadzean associated the disappearance of past symptoms to a more peaceful situation in Queensland. He did not tell Dr Epstein that he had been pursued, and his associates assaulted, in the course of an incident on Hinchinbrook Island [1309].

2503 Fourth, McFadzean's attendance at the Clinic on 29 January was probably opportunistic.

2504 Fifth, whilst it might be said that McFadzean's failure to seek any medical attention after January 1999 was consistent with him not making much of real and continuing symptoms, it is consistent also with him making nothing of non-existent symptoms.

2505 Sixth, the history which McFadzean gave to Dr Epstein seems to me to have been a compilation of what he chose to tell the doctor. It was far from the case that McFadzean was "entirely forthcoming" as the doctor believed. Once conclude that there was selectivity in reporting the events giving rise to alleged symptoms, why accept that the account of the symptoms was accurate?

2506 Seventh, to my mind McFadzean's actions in the period immediately following SSP week do not bespeak a man suffering the range of symptoms of which he complained. From the time that he left SSP, he continued, uninterruptedly, his work on the political and mass media side of environmental issues; and as well attended various rallies and protest activities. He made many media contacts in the immediate aftermath of SSP week. He visited Garvey Track on 31 July whilst on his way to Melbourne from the Otways. Then, on 1 August, he attended the Parliament House counter-rally. He had a role in planning it. On the following day he attended the sit-in at the DNRE office in Ballarat. Dr Epstein gave evidence, as I have noted, that he would have advised conduct of the second and third kinds had McFadzean been his patient [1310]; but it seems to me, with respect, that such conduct was at the very least not incompatible with there being an absence of symptoms of psychiatric injury.

2507 Concerning his attendance at Garvey Track on 31 July, I should add this: Oren issued a media release about that day's planned activities. McFadzean was named as a contact. He denied that he had authorised it. I doubt his denial. It would have appeared that he was not much affected by his ordeal had he been seen to be actively involved in a further forest action in the Otways within a few days after he left SSP. But even if his denial was truthful, it was his evidence that he had quite a strong argument with Birrell about the event proceeding at all. His professed ability to engage in a strong argument with Birrell about the wisdom of forest protest activity does not bespeak a man afflicted by mental illness.

2508 Eighth, Mrs McFadzean's evidence of changes which she observed in her son's demeanour, for reasons discussed, should be viewed cautiously. Moreover, as I said a little earlier, I do not conclude that McFadzean did not experience some symptoms in the period immediately following SSP week.

2509 Ninth, McFadzean sought to minimize, in my opinion, his continued involvement in forest protest activities after SSP week. One instance was his reluctant admission of involvement in a so-called Blok 2000 weekend held in August 1999 [1311]. Other instances are what I consider were his attempts to downplay the amount of time which he spent at actions in the Otways and East Gippsland in the summer of 1999/2000; and his role therein [1312]. He sought to portray an involvement in protest activity that was different in kind after SSP week. I was unimpressed by that body of evidence.

2510 It might be argued that McFadzean's evidence about his involvement and role in protest activities after SSP week, if unreliable, would bear only upon the duration or extent of psychiatric injury; not upon the question whether there ever was such injury. But I do not consider that it would be realistic to segment McFadzean's evidence about symptoms of psychiatric injury and his evidence about their disabling consequences.

2511 Tenth, McFadzean was a man who had been involved, on his account, in a series of incidents involving actual violence, and on one occasion second-hand knowledge of a fellow demonstrator being shot, who had suffered symptoms after some of those incidents very similar to the symptoms of which he complained after SSP week, and who had got better. Yet the Court was asked to accept that the SSP incident - in which no violence was inflicted on McFadzean, which did not involve threats or conduct which could sensibly be taken to have induced fear, which took place under the eye of the police and the press, which was evidently being closely monitored by Oren, and which involved much political game-playing - so affected him as to cause psychiatric injury which persisted for years after the incident; and, on an extreme view, was still persisting at trial, more than five years thereafter - he having had no psychiatric treatment throughout that time. To my mind that was so improbable that its elements should not be accepted.

2512 I earlier expressed a conclusion that, even if McFadzean had established that he suffered psychiatric injury, I would not have been satisfied that the same was attributable to the offending conduct. That is so because Dr Epstein's opinion that such a condition existed was founded upon McFadzean's account that he was held prisoner, feared for his safety and that of others, and witnessed acts of violence. That account was very faulty. The doctor's opinion does not support a conclusion that any psychiatric injury was attributable to the defendant's offending conduct. Beyond that, whilst McFadzean gave evidence of sleep deprivation [1313], it was very overstated; and it would be speculative to conclude, in light of the burden of his evidence overall, that it was a cause of him suffering psychiatric injury.

Ms Dawson

2513 In examination in chief, Ms Dawson gave evidence that she had experienced panic attacks and anxiety problems after SSP week. The problems lasted probably a few years. Initially it was every day. Currently, it was every now and again; although as the trial approached, it had been every day or so. She described panic attacks as being scared that someone was going to think that she was a greenie, and attack her; or panic when she saw someone who looked like a logger because of a fluoro vest or flannelette clothes. She said also that she had experienced nightmares of loggers hurting or chasing her - like flashes of scenes [from SSP week] [1314]; and that she was scared to do forest actions again.

2514 When Ms Dawson attended the Clinic on 29 January she was seen by Mrs Beaumont. The latter noted complaint of a tropical ulcer on the right second toe, and that Ms Dawson was "mentally stressed". The only objective abnormality noted on formal examination was a slightly raised pulse. The observations section of the record contains matters that must have been reported by Ms Dawson - that she had been six days in the Otway forest protesting, had been harassed by loggers, had been very scared and afraid of being assaulted, and that she had a headache. Other than that, the record mentions that Ms Dawson was "tired". Whether that was an observation or a complaint, or a mixture of both, is hard to say having regard to the structure of the particular record.

2515 In all, the tropical ulcer aside, there is really nothing from which it could be concluded, by reference to the Clinic record, that Ms Dawson was then suffering physical or psychiatric injury. I note also that Mrs Beaumont assessed the case as having the lowest possible priority for medical attention, and that she did not then notify a doctor - although she did recommend that Ms Dawson see a doctor for her ulcer the next day.

2516 Attendance at the Clinic aside, it appears that Ms Dawson had no medical treatment for the asserted emotional consequences of SSP week in the nearly five years thereafter until she gave evidence. She did, however, give a history to Dr Epstein and to Dr Mendelson of having had counselling. According to Dr Epstein's report she attended a counsellor once or twice in 1999. According to Dr Mendelson's report she attended each of three counsellors, one of whom was a psychologist, on three or four occasions, in 1999 and 2000. Whichever be the true position, no such person was called at trial.

2517 Ms Dawson was interviewed by Dr Epstein on 15 October 2003. That was after the trial had commenced, but before she gave her evidence. She was interviewed by Dr Mendelson on 20 November 2003, within a few days of completing her evidence. It would be difficult, I think, to imagine more unsatisfactory times at which to attempt to assess the emotional consequence of an incident which had occurred nearly five years earlier.

2518 Putting to one side any problem that I would think was posed by the consultations taking place when they did, Dr Epstein opined that

[650]

2525 He considered that there was no indication that Ms Dawson required specific psychiatric treatment.

2526 In cross-examination, the doctor ultimately agreed that, if diagnostic criteria set out in manual were applied mechanically - the doctor described it as the "cookbook approach to diagnosis" [1315], - it was possible that Ms Dawson had suffered diagnosable psychiatric illness for a two year period after SSP week [1316]. He agreed also that various stressors to which counsel referred had been identified in situations of "torture, interrogation, kidnapping, things of that nature" [1317]. The evident intent of the latter cross-examination was to show that such stressors had been present during SSP week, which was to be relevantly equated with situations of the kind just mentioned.

2527 The history provided by Ms Dawson to Dr Epstein was considerably incomplete, muddled, and permeated by assertions of imprisonment and fear. The history provided to Dr Mendelson, she having recently given her evidence, was quite detailed, in some respects inconsistent with the history given to Dr Epstein, and also permeated by assertions of imprisonment and fear, together with an assertion of refusal of police assistance.

2528 Other aspects of the history noted by one or both of the doctors bear comment. First, I think that neither doctor was told anything about instances before SSP week when Ms Dawson had been arrested whilst undertaking protest activities, nor anything otherwise which would suggest her likely attitude so far as the police were concerned at the beginning of SSP week.

2529 Second, neither doctor was told, so far as I can see, about any occasion on which, on her account, Ms Dawson had placed herself in a situation of danger during protest activities without any reported deleterious effect upon her mental health.

2530 Third, each doctor accepted that Ms Dawson had been very fearful for her safety during SSP week. She did not tell either of them, so far as I can see, that she was one of a few protesters who abused loggers throughout SSP week; that she, Ms Lees and Kennerson had taken a longish walk into SSP coupe on 27 January; or that she wore and displayed to the loggers at times during SSP week a vest with a patch that she knew must have been very offensive to them.

2531 Fourth, Ms Dawson told the doctors about the incident involving Flannigan at Beech Forest, and that she was fearful when she saw him at SSP. But, as I have earlier pointed out, subsequent to the Beech Forest incident she returned to the Otways, went scouting, and despite the incidents on 24 January (in which she acted aggressively) and the night of 24 January stayed at SSP intersection on 25 January up to the time of the loggers' arrival, and even thereafter when there was evidently an opportunity to leave the area.

2532 Fifth, contrary to the history given by Ms Dawson to the doctors, I have concluded that other incidents during SSP week which she told them made her fearful either did not occur or did not make her fearful.

2533 Sixth, Ms Dawson's account of her attendance at the Parliament House counter-rally, as given to Dr Epstein, was, I think, misleading. She told him that she became "irrationally angry". In fact, she had abused the loggers more than most throughout SSP week. Bear in mind also her aggressive conduct and language on 24 January. I do not consider, in the event, that her language and behaviour at the Parliament House counter-rally were evidently out of character.

2534 I go to my conclusions. There are a considerable number of reasons why the pertinent evidence given by Ms Dawson, and the evidence of Dr Epstein, should be viewed with scepticism. I was, also, impressed by Dr Mendelson's evidence about the defects of the cookbook approach to diagnosis. Even so, on balance I conclude that Ms Dawson did suffer post traumatic stress disorder in consequence of mental distress arising from her experiences during SSP week.

2535 I am quite unimpressed by her evidence of being put in fear, and really discount fear as a cause of her distress and ensuing psychiatric illness. I consider, on the other hand, that a link has been established, on all the evidence, between the defendants' offending conduct, sleep disturbance of which Ms Dawson gave evidence [1318], and the mental distress which was the precursor of the psychiatric illness.

2536 I do not accept the evidence of Ms Dawson and Dr Epstein insofar as that evidence asserted a continuation of psychiatric injury at trial. I prefer the opinion of Dr Mendelson that if there was such an injury, it was spent within two years of SSP week. I consider, further, that it was for the most part spent within the first 12 months. Those conclusions seem to me to better fit the pattern of Ms Dawson's activities since January 1999, as well as with the overall thrust - though not the timing - of her evidence concerning persistence of symptoms.

2537 I further conclude that not every symptom of which Ms Dawson complained during the initial period should be attributed to post traumatic stress disorder. I think that there was much force to Dr Mendelson's warning against "medicalising" normal human response.

2538 I do not conclude that Ms Dawson was significantly disabled by psychiatric injury at any time after January 1999. It may be said that she led a somewhat nomadic existence for a period. But that fitted the pattern of her activities for a significant period before that time. Moreover, whilst I accept that she was much less involved in protest activities after January 1999 than had hitherto been the case, it seems more likely than not that she attended a forest rally (though in a city) whilst in Tasmania in 1999; and she certainly attended the Goolangook camp in East Gippsland in (?) 2000 [1319].

2539 Counsel for the plaintiffs submitted that appropriate ordinary compensatory damages for Ms Dawson's psychiatric injury would be $40,000 - that is, less than the sum which he proposed for Ms Jackson, and half the sum which he proposed for Ms Lees. I do not agree. I think that Ms Dawson's psychiatric injury was somewhat more prolonged than in either of those other cases, albeit that it was never symptomatically grave. I consider that the various matters which I have mentioned should lead to an award of compensatory damages of $37,500, including $12,500 aggravated damages. No award of exemplary damages should be made. What I said in that connection when discussing Ms Jackson's claim equally applies. The award should be made against the defendants other than Arbuthnot, Brian Wheeler and Benson. An award of aggravated damages in the amount mentioned is, I consider, appropriate for the reasons mentioned in connection with Ms Jackson's claim. The amount which I propose to award is in respect of psychiatric illness. I do not consider that Ms Dawson's tropical ulcer, assuming it became worse during SSP week, could fall within the purview of the Wilkinson v Downton claim.

Bowles

2540 Counsel for Bowles, as I have said, did not contend that his client had suffered psychiatric injury. In connection with the claim for false imprisonment he rather sought damages for psychological distress [1320].

2541 It is not clear whether counsel contended that such distress was compensable in Bowles' Wilkinson v Downton claim. But if he did, the law in that area does draw a distinction between psychiatric injury and distress; and counsel's concession, if justified, really doomed the claim. His attempt to justify a damages award in Bowles' favour for "psychological distress", if made in the context of the Wilkinson v Downton claim, could not succeed. Simply to add "psychological" to "distress" would not solve the problem of the distinction to which I referred a moment ago.

2542 In my opinion, counsel's concession was rightly made. But in any case there was a very significant evidentiary problem. Apart from the record of the Clinic, the only evidence of "injury" - giving that word its broadest meaning - lay in the evidence given by Bowles. There is nothing by way of medical evidence, directed to his case, that would enable me to conclude that his symptoms - even if I accepted that his account of them was entirely accurate - bespoke psychiatric injury, nor any medical evidence to connect them with the offending conduct - that is, as distinct from other perceptions which Bowles may have had about SSP week.

2543 It is one thing to say that the Court must consider all the evidence in coming to a conclusion about an issue. It is another thing altogether to say that a court is obliged or is able to make out a case by guesswork. To my mind that is what would be required in order to conclude that Bowles had suffered psychiatric injury by reason of the offending conduct.

2544 Having said why Bowles' Wilkinson v Downton claim must fail, I should advert briefly to his account of his symptoms. He gave evidence that he has not been able to blockade since, he is just too scared and jumpy. Sunday lawn mowers drive him nuts. He jumps if he hears a loud noise. He did return to the Otways six to 12 months later and drove down SRR. He kept looking over his shoulders and was on edge all the time. Environmental beliefs are very important to him, and he feels unable to involve himself in blockades [1321].

2545 Maybe the evidence to which I have just referred could bespeak psychiatric injury, maybe not. So, for instance, a decision not to engage in further protest activity might reflect psychiatric injury; or it might reflect a rational desire not to get into a prolonged confrontation with loggers again. But even if Bowles' evidence was accepted, and even if it bespoke psychiatric injury, it was utterly non-specific as to causation. I think it would be going too far to pick out, from the welter of evidence which Bowles gave, his evidence about the offending conduct, and sleep deprivation, and then assign a causal role to such conduct. That is the more so because I have rejected significant aspects of Bowles' evidence about the offending conduct; and his evidence about sleep deprivation interlinked with that evidence.

Fowkes

2546 I have noted that counsel made no claim for ordinary compensatory damages for Fowkes in respect of psychiatric injury. Neither did he make any claim for distress. He told me that Fowkes had given no evidence of the impact of SSP week upon him.

2547 In my opinion, counsel's concessions were rightly made. The conceded situation is one in which Fowkes could not succeed in a Wilkinson v Downton claim.

2548 It is the fact, contrary to what counsel told me, that Fowkes gave several fragments of evidence about the impact of SSP week upon him. He said that, after that week, he felt tired, depressed, confused, angry, scared, and was ashamed that he had not done something earlier to get his companions out. For two months he thought about the incident constantly, and spoke pretty much daily to Ms Colson about it [1322]. He said also that by 28 January he felt like his brains were bouncing around, he was tired, stressed, angry, confused, just emotionally broken down [1323].

2549 I would have the gravest reservations about accepting any significant part of that evidence. Quite apart of the unreliability of Fowkes' evidence generally, it would be pertinent to consider his behaviour at the Parliament House counter-rally, and his attendance at the sit-in at the DNRE office the following day. Fowkes' conduct at Parliament House, I add, was neither more nor less than I would have expected of him. He found time, when not wearing a possum suit, to shout "we won" at the attending loggers.

2550 But even if I was to accept Fowkes' evidence, and was to add it to whatever could be gleaned from the record of the Clinic, I would not conclude that it disclosed psychiatric injury. Some of the matters which Fowkes described were, I think, plainly equivocal. So, for example, his evidence that he thought about the incident constantly for two months, and talked about it with Ms Colson, might or might not bespeak psychiatric injury. I should have thought that such matters might well reflect the workings of a rational mind, unaffected by psychiatric illness, in the aftermath of an incident which, whatever its rights and wrongs, had not been inconsequential.

2551 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

2552 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.

2553 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].

2554 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.

2555 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.

2556 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.

2557 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.

2558 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.

2559 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

2560 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.

2561 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.

2562 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].

2563 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.

2564 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.

2565 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.

2566 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.

2567 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.

2568 In 1999, the witness said, his daughter returned to Deakin University. She completed that year, but not as effectively as the year before.

2569 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.

2570 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.

2571 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.

2572 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

2573 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:

[652]

2574 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.

2575 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.

2576 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.

2577 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".

2578 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.

2579 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.

2580 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.

2581 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?

2582 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.

2583 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.

2584 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.

2585 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.

2586 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.

2587 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.

2588 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.

2589 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.

2590 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.

2591 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.

2592 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.

2593 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.

2594 First, Ms Jackson did have an intention, albeit fragile, of leaving along SRR when she left the protesters' camp.

2595 Second, there was obstruction of SRR by loggers, at least one woman, and children as Ms Jackson walked north.

2596 Third, the loggers' group fell back as Ms Jackson approached; but it held position, in the sense that its members did not part.

2597 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.

2598 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.

2599 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.

2600 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.

2601 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.

2602 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.

2603 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.

2604 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.

2605 All in all, I consider that the appropriate amount of damages is $7,500.

2606 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.

2607 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.

2608 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.

2609 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

2610 I have reached these conclusions with respect to the plaintiffs' claims:

2611 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.

2612 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.

2613 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.

2614 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.

2615 Fifth, no plaintiff has established any other claim against any of the defendants.

2616 I will hear submissions, at a time convenient to counsel, as to what orders should be made.

[653]

[1] T 2641 - 2644.

[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.

[4] [1897] 2 QB 57

[5] T 5437.

[6] T 5437-9.

[7] T 5440-1.

[8] T 5436.

[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.

[10] T 5420 lines 12-20

[11] T 5420-1.

[12] T 5421.

[13] T 5422.

[14] T 5424.

[15] T 5420.

[16] T 5541.

[17] T 2673.

[18] T 5336.

[19] T 5336.

[20] T 5362-4.

[21] T 5473.

[22] See paragraphs 23, 25 and 27 of the statement of claim.

[23] A "coupe" may be broadly described as an area of forest set aside for logging.

[24] Under the Occupational Health and Safety Act 1985, s. 23.

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

[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] VicRp 97; [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.

[29] Symes v Mahon [1922] SASR 447 is an example. See per Murray CJ at 453. See also Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621 at 626 per Walsh J.

[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.

[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.

[32] Ferguson v Jensen (1920) 53 DLR 616, Alderson v Booth [1969] 2 QB 216, Garrett at 405 per Von Doussa J.

[33] Myer Stores at 611 per O'Bryan J, citing Collins v Wilcox [1984] 1 WLR 1172; see also at 632 per McDonald J.

[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] HCA 68; (1955) 94 CLR 147 at 152.

[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].

[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.

[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.

[39] [1951] HCA 23; (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] HCA 10; (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.

[41] [1987] HCA 47; (1987) 164 CLR 1 at 8

[42] [1964] UKHL 1; [1964] AC 1129.

[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].

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

[46] Supreme Court of Victoria, 15 February 1996, unreported.

[47] [1997] 1 VR 182.

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

[49] See per Ormiston JA at 208 lines 2-22, 209 lines 5-13, and 208 line 34-210 line 20.

[50] (1998) 196 CLR 1.

[51] at 9.

[52] [1985] HCA 12; (1985) 155 CLR 448 at 471.

[53] At 9.

[54] At 10.

[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.

[59] [2002] VSCA 177; (2002) 6 VR 326.

[60] At [60].

[61] At 634.

[62] See per Gibbs CJ at 460, cited by Murphy J in Myer Stores at 609.

[63] by Murphy J, particularly at 609 lines 35-45.

[64] by Winneke P at [24]-[32].

[65] [1897] 2 QB 57

[66] Fleming, citation earlier, p.38, citing Bunyan v Jordan (1936) 36 SR (NSW) 350 at 353. See also, concerning "calculated", Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474 at [25] per McPherson JA with whose reasons Moynihan J agreed; and the slightly different formulation of McMurdo P at [12]. What their Honours said reflects the approach of Ferguson J, speaking for the Court, in Johnson v The Commonwealth and ors (1927) 27 SR (NSW) 133 at 137. By analogy with the tort of misfeasance in public office it may also be the case that the intentional infliction of harm embraces conduct done with reckless indifference to the harm that is likely to ensue; see Northern Territory and ors v Mengel (1995) 185 CLR 307 at 347, cited by McPherson JA in Carrier at [23], and by Debelle J in Rowan v Cornwall and ors (No 5) [2002] SASC 160; (2002) 82 SASR 152 at [599].

[67] See Battista and ors v Cooper (1976) 14 SASR 225 at 231 per Bray CJ, albeit that this proceeding concerned a claim under statute for criminal compensation.

[68] Albeit that the claim failed.

[69] Fleming p.40, citing Bunyan v Jordon at 355, decision affirmed [1937] HCA 5; (1937) 57 CLR 1; as to "a person of normal fortitude" see also, though not in a case pleaded as an intentional tort, Midwest Radio Ltd v Arnold (Court of Appeal, Queensland, 12 February 1999, at [28]-[29] per McPherson JA and Williams J.

[70] Fleming p.40. See also Balkin & Davis, Law of Torts, 2 nd ed, p.50.

[71] T 5439.

[72] T 5440.

[73] See, for example, Harper v GN Haden & Sons Ltd [1933] Ch 298 at 304 per Lord Hanworth MR, cited by McInerney J in Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VicRp 9; [1969] VR 62 at 70; and see his Honour's formulation by the principle in the penultimate para at 72.

[74] Fleming, citation earlier, p.460; Walsh v Ervin [1952] VicLawRp 47; [1952] VLR 361 at 371 per Sholl J.

[75] At p.462.

[76] Walsh v Ervin, citation earlier, at 371.

[77] See Fleming, citation earlier, at p.493. As to aggravated damages, see the opinion of Gillard J in Stockwell v State of Victoria [2001] VSC 497 at [615], which may be compared with the opinion of Harris J in Oldham v Lawson (No 1) [1976] VicRp 69; [1976] VR 654 at 658-9. In neither of those cases did the occasion for an award of such damages arise.

[78] T 5317, 5420.

[79] Citation earlier, p.288 ff.

[80] The Koursk [1924] p.140 at 156.

[81] ibid at 159-160.

[82] pp.288-289.

[83] p.289.

[84] Joint Torts and Contributory Negligence at p.11.

[85] Fleming p.288.

[86] p.292.

[87] XL Petroleum (NSW), citation earlier; and see, in Victoria, Wrongs Act 1958, s. 24AA.

[88] See per Murphy J at 601, O'Bryan J at 617, McDonald J at 631.

[89] At 606.

[90] See at 609, line 1-610 line 2.

[91] See para 113 of these Reasons.

[92] of the statement of claim.

[93] T.5516 - 5517.

[94] T.5277ff referring to the opening at T.76 - 78, 81, 115 and 117.

[95] (1992) 26 NSWLR 738.

[96] T.77.

[97] See T.80-81.

[98] Compare the opening at T.32 and the closing address at T.5380-5385.

[99] Part exhibit 17.

[100] Part exhibit 4.

[101] Part exhibit 4.

[102] Part exhibit 17.

[103] Exhibit 34.

[104] Part exhibit 17.

[105] Part exhibit 18.

[106] Exhibit 25.

[107] Exhibit 38, page for 25 January, said by McFadzean to have been written up on 28 or 29 January.

[108] Ms Dawson at T 1670.

[109] Bowles, T 1868-9.

[110] For example, the footage of the Mt Sabine base camp recorded by Birrell on 29 January 1999, part exhibit 18.

[111] Exhibit 18

[112] T.211.

[113] T 211.

[114] His report is Exhibit AX

[115] T.212.

[116] T.212.

[117] See T.212-213.

[118] This was Ms Lees' nickname

[119] Exhibit AX p.2.

[120] T.381-382.

[121] Her father gave evidence that she was 21 or 22 in January 1999; T 580.

[122] See Dent's notes of meeting held 23 January, exhibit CB, the pertinent reference being "coffee shop."

[123] T 1008.

[124] T 623.

[125] T 616.

[126] See part exhibit BG.

[127] T 2680-1.

[128] Exhibit 2, behind tab 11.

[129] T 782.

[130] T 751.

[131] See exhibit 16; and the later concessions by the witness at T 796-7.

[132] T 793-4.

[133] Part exhibit 17.

[134] T 3873-3876.

[135] T 798-800; 805.

[136] T 806.

[137] T 751.

[138] T 1662, 1701.

[139] T 2031, 2032.

[140] T 2307-8.

[141] T 781-2; and as to the last matter, T 788-9.

[142] T 754.

[143] T 887.

[144] T 1845.

[145] T 991.

[146] T 1001-2.

[147] T 1013.

[148] Ex 25.

[149] Part Ex 17.

[150] T 1052; and see T 1047-1048.

[151] T 1054.

[152] T 1061-2.

[153] See, for example, part Ex Q at Court Book 744.

[154] Born 7 February 1971.

[155] T 1125.

[156] Ex AV, p2.

[157] T 1174.

[158] T 1352.

[159] T 1354.

[160] T 1212.

[161] T 1227.

[162] T 1229.

[163] T. 1396.

[164] T 1398.

[165] T 1421.

[166] Ex 31.

[167] In expressing this conclusion I do not rely on McFadzean's affidavit, sworn in another proceeding, in which he deposed that he had again become active in the affairs of Oren after returning to Victoria. McFadzean denied becoming so active, said he did not understand what was meant by "affairs" and ultimately said that what he had sworn to in his affidavit was not untrue. See T 1287- 8.

[168] Part Ex 38.

[169] Ex 34.

[170] Part Ex 16.

[171] Ex 28.

[172] T 1248.

[173] T 1217.

[174] T 1225-1226.

[175] T 1230.

[176] T 1245.

[177] T 1246.

[178] T 1255.

[179] See T 1410, 1436-7.

[180] See for example T 1447.

[181] T 1655-6.

[182] T 1699.

[183] T 1661.

[184] T 1662.

[185] T 1672.

[186] T 1662.

[187] T 1666.

[188] Exhibit 25.

[189] T 1578.

[190] Ex 39.

[191] T 4176.

[192] GECO was the acronym for Goongerah Environment Centre and Office, apparently a meeting place for forest protesters, although it was a considerable distance from Goolangook, which was the scene of many direct actions.

[193] T 1865.

[194] T 1845-6.

[195] T 1783.

[196] T 1813.

[197] Part Ex 17; see also the photograph, Ex 41, where once again Birrell is to be seen.

[198] Ex 42.

[199] Which could go on for hours and hours; T 1785.

[200] T 1816.

[201] A few examples are his answers to questions about use of a bath in a dragon incident T 1889; about coupes being unsafe workplaces, T 1920; and about use of marijuana during SSP week, T 1914.

[202] This was when he was being cross-examined about why a camp was set up at SSP intersection on the evening of 24 January.

[203] When he gave evidence in November 2003.

[204] T 2031.

[205] T 2031.

[206] T 2031-2.

[207] T 2033.

[208] T 2048-9.

[209] T 2257-8; 2261-2.

[210] T 2057.

[211] T 2058.

[212] T 2055.

[213] T 2084.

[214] Part Ex 49.

[215] Part Ex 49.

[216] T 1957.

[217] T 2125.

[218] Her date of birth being 24 July 1972.

[219] See, eg, at T 2307-8.

[220] T 2304.

[221] T 2306.

[222] T 2382-3; see also exhibit 28.

[223] T 2353.

[224] T 2356.

[225] T 2357.

[226] T 2394.

[227] T 2397.

[228] T 2548.

[229] T 2529.

[230] See at T 2571.

[231] Exhibit BF.

[232] Compare paragraph 4 of the defence, which is clearly wrong. Dent, Flannigan, Nemet, Nocera, Wayne McGee, Sheppard, Molloy and Wilson later joined the union - variably between 14 March 1999 and 21 February 2002. Sheppard had been a member in the past, as had Dent.

[233] As to this belief, see her evidence at T 3578-9.

[234] T3380.

[235] She had been a union official since 1988; T 3347.

[236] But not as a witness.

[237] T 3787-9.

[238] T 3942.

[239] T 3940-1.

[240] T 3941.

[241] T 3950.

[242] T 4060-1.

[243] T 4094.

[244] T 4145.

[245] T 4155.

[246] T 4152.

[247] T 4427.

[248] T 4425.

[249] In fact, she said, membership of Otways forest workers altered very little between 1995 and the end of 1998; T 3224.

[250] T 4431.

[251] T 4578.

[252] T 4640.

[253] T 4640.

[254] T 4641.

[255] T 4648.

[256] T 4734.

[257] T 4735.

[258] T 4736.

[259] I explain pertinent geography a little later in these Reasons.

[260] T 4817.

[261] T 4811.

[262] T 4814.

[263] T 4899, that evidence not being the subject of cross-examination; and see Exh AE.

[264] See her evidence at T 2471-2.

[265] T 4903.

[266] T 4903.

[267] Foreshadowed in Nocera's evidence, for instance, as to why he wanted to meet with Ms Calvert; T 3937-8.

[268] See Molloy at T 3583; and Nocera at T 3944-5.

[269] T 4096.

[270] Exhibit BH.

[271] T 3269.

[272] See paragraph 10.b of Robinson's report.

[273] As to the latter's contribution, see paragraphs numbered 6 and 7 of Robinson's report; picked up by paragraph 10 a.

[274] Exhibit D.

[275] T.3946

[276] T.3946

[277] T.4152

[278] T.4154

[279] He adhered to this evidence despite an article from the Colac Herald of 22 January being put to him. It was one of a number of articles to which defendants were taken in cross-examination, without there being any attempt, in most cases, to get the article or any part of it into evidence.

[280] See also, in that connection, Dent's day book entry, Exhibit CB

[281] Exhibit D.

[282] Other were present, but their presence seemed to have been inconsequential.

[283] T 3296-7.

[284] That was also, as to the names of protesters, Ms Calvert's evidence.

[285] T 3952.

[286] T 4103.

[287] T 4103.

[288] Exhibit CB.

[289] T 4816.

[290] In describing SSP coupe and local geography, such as roads and the like, I will use the present tense so long as I am satisfied that it accurately describes the situation as at January 1999.

[291] Exhibit 71, pages 3 and 4, each of which appear to depict SSP Track, provide some of the evidence bearing on that conclusion. The contour lines on pages 3 and 4 may be correlated with the contour lines on Exhibit A (which does not show SSP Track). When this is done, the site of SSP Track can be discerned. A similar conclusion is reached as to the distance between the two intersections.

[292] See Exhibit 3 and Exhibit JT2 thereto.

[293] Part Exhibit 77 at Court Book 1347.

[294] Also at Court Book 1347.

[295] Which I annex to these reasons as Annexure A.

[296] So does page 4.

[297] See Exhibit A; and the evidence of Flannigan at T 4189.

[298] Nocera T 3911; Flannigan T 4142.

[299] See, for example, part exhibit Q at CB 810.2.

[300] Part of exhibit 71, Annexure A to these Reasons..

[301] [1975] VicRp 89; [1975] VR 916.

[302] T 4200.

[303] T 4580.

[304] She was wrong about Bowles being in the group.

[305] She was wrong about that. He spoke by phone. I accept his evidence.

[306] T 2400.

[307] Part Exhibit CA.

[308] This must have been done when the docket was written out; because the over-writing shows up on the copy document held by DNRE, which has the weighbridge docket attached to it.

[309] T 4199-4200.

[310] T 4199-4200.

[311] See the cross-examination at T 4239-4342.

[312] As he said he did - though not to Wilson.

[313] Fowkes at T 2125, Ms Colson at T 2399.

[314] T 2397.

[315] Ms Jackson at T 212, Fowkes at T 1957, 2125.

[316] See Exhibit 72; A similar machine is more fully depicted in Exhibit 73..

[317] T 1587.

[318] T 1958.

[319] T 4259.

[320] T 4266.

[321] T 4404.

[322] T 2401.

[323] T 4212.

[324] T 4247.

[325] T 1716.

[326] T 2153.

[327] T 2404-5.

[328] T 4212.

[329] T 1959.

[330] T 2317-8.

[331] T 1600-01.

[332] T 1961.

[333] Exhibit AM, Court Book CB 668.2, 696.2, 697.2.

[334] Although the photograph at Court Book 697.2 could possibly do so.

[335] Court Book 668.2.

[336] I summarised some of Chris Wheeler's evidence about the matter in questions at T 4508-9.

[337] The photograph at CB 697.2 also suggests, I think, but less clearly, the likelihood that the defendants' account was correct.

[338] For example, T 1598, 1599.

[339] Court Book 659.2, 663.2

[340] For example, Ms Dawson at T 1602, Fowkes at T 1962.

[341] T 1602.

[342] T 1603.

[343] T 1722.

[344] T 188-9.

[345] T 256-7.

[346] T 2164-5.

[347] See the photographs, part Exhibit AN at Court Book 695.2, and unnumbered.

[348] His account of the incident, given in evidence in chief, is at T 4214-4217.

[349] T 4236.

[350] T 4237.

[351] T 4248.

[352] T 4590.

[353] Perhaps it parked for a moment, the photographs being taken then.

[354] T 1604.

[355] T 1723.

[356] T 1759-60.

[357] See part Exhibit BD.

[358] See Exhibit BA.

[359] Ms Dawson T 1606, Fowkes T 1964.

[360] Chris Wheeler T 4419; Bernard Wheeler T 4232; Wilson T 4594.

[361] See part Exhibit AN, Court Book 695.1.

[362] Exhibit 75.

[363] T 1968.

[364] See generally T 4280-2.

[365] T 2323-4.

[366] T 2182.

[367] I consider that this was the case on consideration of all the relevant evidence.

[368] That is, the vehicles of Donato, Ure, Mills, McFadzean, Ms Lees and Greig.

[369] T 192.

[370] T 296

[371] T 384.

[372] T 920.

[373] T 922-3.

[374] His report suggests that she did so.

[375] T 1028.

[376] T 1129.

[377] T 1445.

[378] T 1451-2.

[379] T 1729.

[380] T 1729.

[381] He was wrong about Mills, but nothing turns on it.

[382] Exhibit 44.

[383] See T 1905-6.

[384] T 1912.

[385] T 1912-3.

[386] T 1973.

[387] T 1975.

[388] T 2182.

[389] T 2193.

[390] T 2324.

[391] T 2412.

[392] T 2573.

[393] T 2872.

[394] As to the detail of the conversation, see T 3119-21.

[395] T 3307.

[396] T 4285.

[397] T 3906-7.

[398] T 4105-6.

[399] T 4897.

[400] T 192-3.

[401] T 1974.

[402] T 2324, 2411.

[403] T 3906, 3953; see also Chris Wheeler's evidence at T 4285.

[404] T 1963.

[405] T 310.

[406] T 194.

[407] T 295.

[408] T 686-7.

[409] T 928.

[410] T 1133.

[411] T 1674-5.

[412] T 2197.

[413] T 2528.

[414] T 2716.

[415] T 2834.

[416] T 2840.

[417] T 2808-9.

[418] Subject only to Dwan's evidence of a short trip out and back

[419] T 3907.

[420] T 3907.

[421] T 3955.

[422] T 4090.

[423] T 4107.

[424] T 4108.

[425] T 395-6.

[426] See exhibit AB.

[427] T 815.

[428] T 1026.

[429] T 1453.

[430] T 1454.

[431] T 1456-7.

[432] T 1915.

[433] Exhibit 51

[434] T 2207.

[435] T 4286-7.

[436] T 4434-5.

[437] T 1458.

[438] T 3845.

[439] T 3882.

[440] T 4287.

[441] T 3882.

[442] See T 3895.

[443] 817.

[444] See her evidence generally at T 925-6.

[445] T 1132.

[446] T 1133.

[447] T 1736-7.

[448] T 1916

[449] T 2200-1.

[450] T 2417.

[451] T 2583.

[452] T 4287-8.

[453] See cross-examination of Ms Calvert about the topic of harassment generally at T 3378-81.

[454] T 3654-5.

[455] T 3909.

[456] T 4737-8.

[457] T 4741.

[458] T 4743.

[459] T 4908.

[460] Or Senior Constable.

[461] Note also, in connection with the time of arrival of the loggers' convoy, Robinson's evidence that he telephoned Ms Calvert at 10.50 am on 25 January, and her evidence that she took the call just before arriving at Beech Forest.

[462] See Exhibit 78, the witness' notes, entry for 1130 hours. Cf his viva voce evidence at T.4513, where he said that Sergeant Merry told him, in effect, that a union and some loggers were already at SSP intersection.

[463] Part Exhibit 78

[464] T.4529

[465] Nocera's evidence to the latter effect was challenged, but the burden of the evidence was all one way: Ms Calvert T.3388, Molloy T.3616, Nocera T.3916, 4011-2.

[466] The presence increased to two policemen at any one time, it seems, sometime on 28 January.

[467] T.3709, 3753.

[468] See Nocera, at T.3910, 3981.

[469] Dwan gave evidence of leaving and returning before the loggers arrived. He said that he did so with Ms Dawson. She did not corroborate his evidence. Whether or not he did as he said does not derogate from the substance of the situation as I have described it.

[470] Note Johnson's first estimate and also the evidence of Ms Calvert at 3140. The evidence as to the number of loggers present on particular occasions varied widely. Compare, for example, the evidence of Bowles, T 1806 and Fowkes T 2005 with respect to the occasion when the Gross party arrived. Other estimates were exaggerated. See for example the evidence of Kennerson at T 2720 as to the number of loggers said by him to have been blocked Ms Jackson's path. See also, as an example of varying estimates, the different evidence of those who attended the Beech Forest meeting as to how many men were present there.

[471] Ms Calvert at T.3145, Dent T.4655.

[472] T.622.

[473] T.3049.

[474] Ms Calvert T.3162-3, Chris Wheeler T.4292-3, Dent T.4670-1.

[475] Exhibit AH.

[476] Exhibit AI. There is a serious question whether that evidence could be accepted. The document is nearly two A4 pages in length. It is dated 27 January. McFadzean said that must have been wrong. How he had the time to write the letter in the time that Ms Miller was in the area, he being involved in speaking with her, and in going for the coupe visit, is not clear to me. Note also that the letter referred to "first contact in three days".

[477] See also the evidence of Ms Calvert at T.3209-10. Compare the evidence of Bowles at T.1936.

[478] Similar allegations were undoubtedly made at times by particular protesters. So, for example, Fowkes, who had been to and from Apollo Bay two days earlier, robustly voiced the opinion on 28 January that it was false imprisonment (Exhibit 12); whilst on the same day Ms Epstein said to nearby loggers words to the effect: "Got your hard hat, got your earmuffs, I'll see you in fucking Court." (Exhibit 12). Other protesters gave evidence of using the term imprisonment (Ms Lees, T 957) or of discussing imprisonment (McFadzean, T 1505; and see his letter to Birrell and others, Exhibit AI).

[479] T 3056.

[480] T 2965-6; compare Robinson's diary entry for 26 January at 1605 hours, part exhibit 66.

[481] Diary entry, 28 January, 1335 hours, part exhibit 66.

[482] Father of Donna Gross.

[483] Dent, T 4688-9; Ms Calvert, T 3194-5.

[484] Exhibit Z.

[485] Exhibit 66, 29 January, 1420 hours.

[486] Part Exhibit 6, CB 739.1; exhibit BL.

[487] Within that question there is an issue of action in concert.

[488] And claims for aggravated and exemplary damages.

[489] T.3138

[490] That they did play cricket in the course of the day is not in doubt.

[491] The Nocera videotape, exhibit 12, appears to show Ms Jackson saying: "This is excellent. No work today. I think that's a win for us."

[492] Exhibit 12

[493] As to the latter, for example, Brian Wheeler is shown in the Nocera videotape on the periphery of the second and third conversations. On his account, which made sense, he arrived at the intersection at about 3 o'clock.

[494] ? McDonald

[495] Or "we will".

[496] See Exhibit 12, and Ms Calvert's evidence at T.3148-9.

[497] T.3149-50.

[498] T.3152-3.

[499] T 623.

[500] She said: "or Richie".

[501] Exhibit AA; see also Exhibits 14 and 79.

[502] T 3054.

[503] He did not put a name to him.

[504] T 3595.

[505] T 4801-2.

[506] Exhibit 78.

[507] T 4519-20.

[508] Exhibit 78 and T ?

[509] T 4531-2; T 4544-5; T 4546.

[510] T 4530.

[511] T 4530.

[512] T 1165.

[513] T 1165.

[514] T 1478.

[515] T 4522.

[516] T 930-1.

[517] T 1073.

[518] T 1096-7.

[519] T 1621-2.

[520] T 2840, 2844.

[521] T 2877.

[522] T 2879.

[523] T 4534-5.

[524] Exhibit BM.

[525] As to which see also his evidence at T 4544-5.

[526] T 4541.

[527] T 4543.

[528] T 4545-6.

[529] T 4548.

[530] See T 1135-7.

[531] T 1173-4.

[532] T 1180.

[533] T 1470.

[534] T 1470-1.

[535] T 1474-5.

[536] T 1475.

[537] T 932, 1073-4.

[538] T 932.

[539] T 719.

[540] T 1792.

[541] T 3013.

[542] Exhibits G and H.

[543] See, eg, T 3464.

[544] Johnson's only contribution was to say that it was a matter which the antagonists should sort out between themselves.

[545] Exhibit CD.

[546] T 862.

[547] T 3602, 3603.

[548] T 1478.

[549] T 3319.

[550] For example, with McFadzean on 27 January, see her evidence at T 3178

[551] T 3409.

[552] Exhibit H

[553] Exhibit G

[554] Paras. 481, 482

[555] Part Exhibit 66.

[556] T 3397.

[557] "Timber workers are demanding a public written commitment to place an embargo on direct action against timber workers in their workplace"; and the picket line "would remain until the environmentalists promised to cease protest blockades in the Otways".

[558] T 3165-6. An account consistent with her evidence of a conversation she had with, she believed, Merry on 28 January; see T 3187.

[559] T 3167-8.

[560] T 3659.

[561] T 3672.

[562] T 3807.

[563] T 3673.

[564] T 3802.

[565] T 3971.

[566] T 3976.

[567] T 3988.

[568] T 3992-3.

[569] T 4114.

[570] T 4115.

[571] T 4115.

[572] T 4128-9.

[573] T 4162.

[574] T. 4160.

[575] T 4160.

[576] T 4452.

[577] T 4444.

[578] T 4464-5.

[579] T 4602.

[580] T 4760.

[581] Later it emerged from his evidence that he certainly regarded the loggers' presence on SSP Track on 28 January, after the arrival of the Gross party, as a picket.

[582] T 4807.

[583] T 4809.

[584] Exhibit G.

[585] T 4909-4910.

[586] Other than Arbuthnot, Brian Wheeler and Benson, whose situations I later discuss discretely.

[587] T 195.

[588] Exhibit E.

[589] T 196.

[590] T 197.

[591] T 269.

[592] T 286-287.

[593] T 269-70.

[594] T 282.

[595] T 300-301, compare T 340-1.

[596] T 301; see also T 340-1.

[597] T 484.

[598] T 929-930.

[599] T 1468.

[600] T 1615-6.

[601] T 1789-90.

[602] T 2466-7.

[603] Exhibit 57.

[604] T 2588-2591.

[605] T 2842-3.

[606] T 3447-9.

[607] T 3601-2.

[608] T 4689-90.

[609] T 4690-1.

[610] T 4835.

[611] T 4838.

[612] Exhibit AX, p. 2.

[613] T 4666-7, see also Wilson, T 4614-5.

[614] Exhibits AA and 62.

[615] The incident involving Ms Dawson, in which she suffered minor injury, occurred on 24 January.

[616] T 301.

[617] T 304.

[618] T 304.

[619] T 311.

[620] T 312.

[621] T 341.

[622] T 312-3.

[623] T 324.

[624] Made by particular (o) to paragraph 5 and by paragraph 15 of the statement of claim.

[625] See also particular (o) to paragraph 5.

[626] Ms Gross T 603, Fowkes T 1993.

[627] T 1993.

[628] Whether they walked onto SRR at the same time is a matter requiring examination.

[629] T 2730.

[630] T 2730.

[631] T 3691-2.

[632] T 3692.

[633] T 1492.

[634] Exhibit AI; see para. 1035 and footnote 476.

[635] Exhibit AI.

[636] See also particulars (v) and (w) to paragraph 5 of the statement of claim.

[637] See generally, T 690-2.

[638] Compare the history which he gave Dr Epstein, Exhibit AY, p. 3.

[639] T 839-840.

[640] T 873.

[641] Ms Jackson, T 197, 286; Greig, T 358; Dwan, T 695-6, 856, 860; Ms Lees, T 934; Bowles, T 1790-1; Fowkes, T 1982-3; Kennerson, T 2722-3, and Ms Colson, addressing a different matter, T 2329.

[642] Exhibit AC.

[643] T 197.

[644] T 286.

[645] Exhibit 20.

[646] T 1791.

[647] T 2723.

[648] Forrester said that the group set off from Turton Track at about 3.30 pm. Each of Bill and Sarah Gross gave evidence of setting off at about 4 pm. The journey took about two hours.

[649] See, eg, Molloy at T 3633, Wayne McGee T 4842, 4845.

[650] See, eg, Nocera's reaction at T 4062-3.

[651] Forrester, for example, estimated that it lasted for about two hours.

[652] See the evidence of Ms Calvert at T 3201.

[653] Parts Exhibit 66 and BQ.

[654] For example, Greig T 335-6; Ms Gross T 612; Ms Lees T 982 (speaking of a time later in the course of the incident); Ms Dawson T 1636; Fowkes T 2008; Ms Colson T 2340; Ms Epstein T 2497-8. See also Bill Gross T 565.

[655] Dwan T 725-6; Bowles T 1807; Ms Epstein T 2497-8; Kennerson T 2749; Ms Garrett T 2859-61.

[656] Compare Nocera at T 4064 with Wayne McGee at T 4845.

[657] Paragraph 23 refers to "Thursday 26 January", but nothing turns on that.

[658] T 2006.

[659] T 2275.

[660] T 2749.

[661] He gave evidence that he had gone to Riley's Ridge coupe; and of a reason for doing so. He was cross-examined to the effect that, by reference to log dockets, the reason could be seen to have been no reason at all. Evidence was later adduced from Sheppard in an apparent attempt by defendants' counsel to restore the substance of the reason of which Wilson had given evidence.

[662] T 4572.

[663] Exhibit Z, which was evidently taken on the afternoon of 28 January; and Exhibit 54.

[664] CB 775.1, 777.2.

[665] T 3804.

[666] And that of Kennerson pertaining to Molloy.

[667] T 613-4.

[668] T 3429.

[669] See T 576-7; T 583.

[670] T 1184-5, 1199-1200.

[671] Ms Dawson T 1752, 1774; Ms Epstein T 2490, 2492.

[672] T 2853-5.

[673] T 309, 323.

[674] T 2478.

[675] See part Exhibit 7, CB 723.1, part Exhibit Q, CB 762.2.

[676] McFadzean's evidence may be compared with the broad allegations made by paragraph 33 of the statement of claim.

[677] T 1170.

[678] T 709-10.

[679] T 324.

[680] T 3410.

[681] T 4131-2.

[682] Molloy T 3200-01; Nocera T 3989-90; Flannigan T 4171; Chris Wheeler T 4470-1; Brian Wheeler T 4568; McGee T 4852; Sheppard T 4916.

[683] Ms Gross - day uncertain T 663; Dwan - Monday evening T 879; Ms Lees - Tuesday morning(?) T 941; McFadzean - Tuesday T 1489; Fowkes - Monday afternoon T 1982, Wednesday T 1998; Ms Epstein - T 2470; Kennerson - Tuesday T 2727; Molloy - Thursday afternoon T 3597, and one other day T 3632; Nocera - day uncertain T 3926.

[684] Molloy T 361, 3632; see also T 3772; Nocera T 3926.

[685] T 2732.

[686] T 2739.

[687] T 4928.

[688] T 458.

[689] T 739.

[690] T 1010-1; and also at ConFest.

[691] T 1807.

[692] T 1843-4.

[693] T 2019.

[694] T 2518-9.

[695] T 2456.

[696] T 739.

[697] T 1011.

[698] T 740-1.

[699] T 1197.

[700] T 2458.

[701] She gave evidence of seeing Sheppard, associating him with Arbuthnot, and asking him of Arbuthnot's whereabouts. He replied that Arbuthnot was in New Guinea and would be there in two days. T 2471. Sheppard gave evidence that he did not recall any such conversation, and that he did not know where Arbuthnot was in late January. T 4914-6. There is no doubt that Ms Epstein and Sheppard saw each other at Garvey Track in December 1998, albeit that I have accepted his evidence that he did not witness Arbuthnot's attack on Reece. It is certainly possibly, I think, that Ms Epstein asked the question of which she gave evidence, and that Sheppard responded as she said - regardless whether he knew of Arbuthnot's whereabouts. It is to be noted that even on Ms Epstein's account it was she who instigated mention of Arbuthnot.

[702] T 702-3.

[703] T 703-4.

[704] T 709.

[705] T 709.

[706] T 3919.

[707] T 4177.

[708] T 4059.

[709] T 4056.

[710] An example is his lurid hearsay account of the incident involving the tent of "the two Amys".

[711] An example is his shifting evidence that people were either scared of being run off the road by log trucks; or that attempts had been made to run people off the road by loggers or log trucks.

[712] T 733, 790.

[713] T 202.

[714] T 606, T 2335.

[715] T 1184.

[716] T 1997, T2259.

[717] T 310.

[718] T 2805.

[719] Save that Fowkes identified Sheppard, the latter denying the allegation.

[720] or, he and his companions; see the evidence of Chris, Bernard and Michelle Wheeler - evidence the burden of which I accept.

[721] T 556.

[722] T 2250.

[723] T 933-4; see also evidence given by Ms Jackson at T 199, and some improbable evidence given by Dwan T 696-7, compare T 873-5, the gist of which he conveyed to Ms Epstein, T 2502. Ms Garret's evidence, T 2854 did not offer substantial support for a contention that loggers spied on female protesters whilst they were toileting. See also in this connection the evidence of Ms Calvert at T 3211, Chris Wheeler T 4317, Wayne McGee T 4805 and Sheppard T 4902. In all, whilst it is clear that loggers sometimes entered the bush to the north of SSP Track during SSP week, and whilst loggers may have been in the bush at times whilst women protesters were toileting, a conclusion that such events were connected, essentially dependent upon Dwan's evidence, ought not to be reached.

[724] T 2478.

[725] T 710.

[726] T 460.

[727] T 321.

[728] T 606.

[729] T 1797-8

[730] T 1999, 2261.

[731] Second-hand, T 2336-7.

[732] T 2846.

[733] Ms Calvert T 3177, Molloy T 3631 and 3766, Nocera T 3989, Nemet T 4133, Flannigan T 4170-1.

[734] Ms Calvert T 3455-6, Molloy T 3700 and 3786, Nocera T 3989.

[735] T 4052. Apparently in the course of an abusive interchange with Fowkes.

[736] T 3628-9, 3770-1.

[737] T 2161.

[738] T 1999.

[739] T 2337.

[740] T 4806.

[741] T 2905.

[742] T 3785-6.

[743] T 460.

[744] T 953.

[745] T 1627.

[746] T 3020.

[747] T 3636.

[748] T 3410.

[749] T 205.

[750] T 596.

[751] T 597.

[752] Exhibit AA.

[753] See also exhibits 14 and 62.

[754] T 609.

[755] T 713.

[756] T 714.

[757] T 893.

[758] T 949.

[759] T 1085-6.

[760] T 1474.

[761] T 1793.

[762] T 1798.

[763] T 1999.

[764] T 2331.

[765] T 2332-3.

[766] T 2450.

[767] T 2475-6.

[768] T 3024.

[769] T 3032.

[770] T 3065.

[771] T 3146.

[772] T 3708-9.

[773] T 3709.

[774] T 3499-3500.

[775] T 4519.

[776] T 198.

[777] T 308-9.

[778] Part Exhibit F, CB 688 - the red generator.

[779] T 353.

[780] T 605.

[781] T 699.

[782] T 733.

[783] T 1178.

[784] T 1621.

[785] T 1627.

[786] T 1629.

[787] T 1793.

[788] T 1800.

[789] T 1801-2.

[790] T 1994-5.

[791] T 2258.

[792] T 2330.

[793] T 2335.

[794] T 2476-7.

[795] T 2483.

[796] Which was parked on SSP Track, near the banner.

[797] T 2744.

[798] T 3165.

[799] T 3171.

[800] T 3346.

[801] T 4015.

[802] T 4022.

[803] T 4023.

[804] T 4122-3.

[805] T 4175.

[806] T 4166.

[807] T 4460.

[808] His evidence is at T 4553, 4562, 4563, 4569.

[809] T 4672-3.

[810] T 4777-8.

[811] T 4794.

[812] T 4795.

[813] T 4796-7.

[814] T 4796.

[815] T4797.

[816] T 4818.

[817] Shown in part Exhibit F at CB 688.1.2

[818] As to the latter, see Exhibit 47, which must have been taken after the Wednesday night.

[819] Part Exhibit F.

[820] T 733.

[821] T 198-9.

[822] T 203.

[823] T 308.

[824] T 309.

[825] T 510.

[826] T 605.

[827] T 641.

[828] T 641-2.

[829] T 643.

[830] T 698-9.

[831] T 937.

[832] T 937.

[833] T 950.

[834] T 1081-2.

[835] T 1166.

[836] T 1178.

[837] T 1202.

[838] T 1184-5.

[839] T 1621.

[840] T 1629.

[841] T 1743-4.

[842] T 1794.

[843] T 1802.

[844] T 1804.

[845] Exhibit 46.

[846] T 1931.

[847] T 1984.

[848] T 2228.

[849] T 2229.

[850] T 2330.

[851] T 2335.

[852] T 2434.

[853] T 2477.

[854] T 2478.

[855] T 2491.

[856] A photograph taken on Thursday.

[857] T 2606.

[858] T 2727.

[859] Exh. BB.

[860] T 2800.

[861] T 2844-5.

[862] T 2883.

[863] T 3158.

[864] T 3171-2.

[865] T 3344.

[866] T 3605.

[867] T 3630-1.

[868] T 3686.

[869] T 3687.

[870] T 4021.

[871] T 4022.

[872] T 4121, 4123.

[873] T 4174-5.

[874] T 4460.

[875] T 4673.

[876] T 4794-5.

[877] T 4795.

[878] T 4832.

[879] Or possibly by others within their camp.

[880] Exhibit BB.

[881] Exhibits BC and 21.

[882] Exhibit 23.

[883] Exhibit P.

[884] Exhibit 46.

[885] Exhibit 80.

[886] T 202.

[887] T 309.

[888] T 341-2.

[889] T 323.

[890] T 343.

[891] Compare part exhibit F at CB 686.1 and AG with exhibit O. The day on which the photograph, exhibit O, was taken is in any event unknown.

[892] T 653.

[893] T 701.

[894] T 710-711.

[895] T 720.

[896] T 937.

[897] T 954.

[898] T 964.

[899] T 984.

[900] T 1518.

[901] T 1639.

[902] T 1934.

[903] T 1996.

[904] T 2000.

[905] T 2001.

[906] T 2226.

[907] T 2335.

[908] T 2337-8.

[909] T 2484.

[910] T 2726.

[911] T 2745.

[912] T 3387.

[913] T 3341-2.

[914] T 3613.

[915] T 3915.

[916] T 3927.

[917] T 4009.

[918] T 4011.

[919] The question about extent of noise was put and acceded to in the present tense, but I take it to have been an answer applicable to the relevant time.

[920] T 4020.

[921] T 4020.

[922] T 4166.

[923] Part Exhibit F at Court Book 775.1.

[924] T 4724.

[925] T 4725.

[926] T 4772-3.

[927] Exhibit AG.

[928] T 4776-7; see also T 4786.

[929] T 4826.

[930] T 4923.

[931] See the photograph, CB 769.2, part Exhibit F.

[932] Cf Greig at T 413.

[933] Pertinent evidence was given at least by Greig T 323, 346, 413, 506; Ms Gross T605; Dwan T 711, 721; Fowkes T 1996, 2000; Ms Colson T 2335, 2337; Ms Calvert T 3172; Molloy T 3613-4, 3675; Nocera T 4026-7; Nemet T 4123-4; and Sheppard T 4902, 4924.

[934] Particular (n).

[935] Particular (aa).

[936] Further and better particulars, paragraph 24(b), CB 62.

[937] It is clear that before 25 January DNRE officers at times recorded footage of protest action. So there went into evidence - I am concerned only to note what incidents were recorded, not what was recorded - DNRE video tapes recorded in the vicinity of Garvey Track in December 1998 (Ex 16), at Riley's Ridge in November 1998 and on 15 January 1999, at Webster Hill on 14 January 1999 (Ex 28); and as well video tapes of incidents subsequent to 29 January 1999 involving Fowkes (at Lardners Track, 15 December 1999, part Ex 55) and Ms Epstein (at Lardners Track, 10 February 2000, part Ex 55). Whilst some of the footage was evidently extensive, it is clear from the oral evidence that understandably it took time for DNRE personnel to attend protest sites - in which case the timber workers were at risk, as I have no doubt they generally perceived it, of events being recorded so as to create a false and unfavourable impression of their actions. The risk, it may be said, extended beyond timber workers to DNRE officers. See Birrell's video tape of a conversation between Dwan and Fisher of the DNRE at Riley's Ridge in January 1999, when Dwan sought assistance for a man with an allegedly broken arm, or leg; part Ex 17.

[938] Perhaps no other defendant had such an item; but that is speculation.

[939] Molloy, compare T 3645 with T 3777-8; Nocera T 3949-50.

[940] Exhibits J, AL and AO.

[941] T 928-9.

[942] T 1134.

[943] T 1622.

[944] T 1788.

[945] T 1985.

[946] T 2330-1.

[947] Exhibits AL, AO.

[948] Exhibit T.

[949] T 1985.

[950] T 2473.

[951] T 1622.

[952] T 2330-1.

[953] T 1985.

[954] T 2330-1.

[955] T 2479.

[956] T 199.

[957] T 4030. But possibly contrast his evidence at T 4049.

[958] T 1496.

[959] Part Exhibit BL.

[960] T 4030.

[961] T 307.

[962] T 351-2.

[963] T 609.

[964] T 2330-1.

[965] T 4033.

[966] Compare his evidence at T 4043 and his affidavits sworn 21 September 2003 and 16 October 2003.

[967] Compare his evidence at T 4040-4041, and his affidavits sworn 21 September 2003 and 16 October 2003.

[968] In rejecting that evidence I have focussed on evidence given by the various plaintiffs, the video tapes in fact discovered by the defendants and what those tapes recorded - so far as the parties introduced their content into evidence. There was, in addition, a good deal of evidence given by defendants, which I accept, which led to that conclusion. See, for instance, the evidence of Ms Calvert at T 3271, Molloy at T 3688, 3767-9, Nocera T 3978, T 4027-8, T 4030-4032 and Nemet T 4128.

[969] Particulars (n) and (aa).

[970] Particular (aa).

[971] T 2324.

[972] T 284.

[973] T 311.

[974] T 353.

[975] T 420.

[976] T 420.

[977] T 1180.

[978] T 1184.

[979] T 1519.

[980] T 1624.

[981] T 1802-3.

[982] T 2485.

[983] T 2850.

[984] T 2880.

[985] T 3168, 3214.

[986] T 3212.

[987] T 3928.

[988] T 4728-9.

[989] T 4311.

[990] T 605.

[991] T 720.

[992] T 1166.

[993] T 1795.

[994] T 1808.

[995] T 4674.

[996] I am not here referring to Arbuthnot, Brian Wheeler and Benson, whose cases I later deal with discretely.

[997] and putting to one side the departures of McFadzean and Ms Jackson on 28 January.

[998] T 340-1.

[999] Compare Greig's evidence at T 300-301 and T 340 - 1.

[1000] See paragraph [171] above and footnote 98.

[1001] Exhibit BM.

[1002] Ms Lees T 943; see also Robinson's evidence..

[1003] McFadzean T 1187; but he was evidently speaking of the Tuesday.

[1004] Ms Calvert T 3186.

[1005] Dwan T 880-881.

[1006] T 699-700.

[1007] T 716-7, 898.

[1008] T 714.

[1009] T 715.

[1010] T 894.

[1011] T 1083.

[1012] T 1187-8.

[1013] T 1497.

[1014] T 1498.

[1015] T 1799-1800.

[1016] T 2612.

[1017] T 2791.

[1018] T 3517.

[1019] T 3480.

[1020] T 3498.

[1021] Part Exhibit 66.

[1022] T 3480.

[1023] Part Exhibit BQ.

[1024] Part Exhibit 66.

[1025] Part Exhibit 66.

[1026] T 3536-7.

[1027] Part Exhibit 66.

[1028] Part Exhibit 66.

[1029] Part Exhibit 66.

[1030] Part Exhibit 66.

[1031] T 3497.

[1032] T 3019.

[1033] T 3060.

[1034] Part Exhibit 66.

[1035] Part Exhibit 66.

[1036] Part exhibit 66.

[1037] Part exhibit 66.

[1038] Part exhibit 66.

[1039] Part exhibit 66.

[1040] Part exhibit 66.

[1041] Part exhibit 66.

[1042] Exhibit 59.

[1043] Part exhibit 66.

[1044] T 3504.

[1045] Part exhibit 66.

[1046] Part exhibit 66.

[1047] Part exhibit BQ.

[1048] T 3481.

[1049] T 3482.

[1050] Exhibit BM.

[1051] T 3522.

[1052] T 3542.

[1053] T 3546.

[1054] T 3549.

[1055] T 3551.

[1056] T 3551.

[1057] T 3553.

[1058] T 3554.

[1059] T 3554.

[1060] T 3563.

[1061] T 3564.

[1062] T 3568-70.

[1063] T 3713.

[1064] T 3714.

[1065] T 3719-20.

[1066] Part exhibit BQ.

[1067] T 3739-40.

[1068] T 346-7.

[1069] T 326.

[1070] T 325-6.

[1071] T 725.

[1072] See his evidence at T 1184; see also evidence given by Greig at T 325-6. But other witnesses gave evidence of Tregellas being in their camp on the Wednesday night: Ms Gross, T 610-611, Ms Garrett, T 2855, Ms Dawson, T 1641-2; see also cross-examination of Robinson at T 3707.

[1073] T 347-48.

[1074] T 325-6.

[1075] T 951.

[1076] or perhaps the Wednesday and Thursday nights. T 1641-2.

[1077] T 1642.

[1078] T 1774-5.

[1079] As to the nature of the complaints I note, for instance, Ms Gross' evidence that on the Wednesday night she told him that she was feeling very nervous, he told her that he had a gun, and that she nonetheless asked him how long it would take to get back up; T 610-611.

[1080] T 1188-9.

[1081] T 1190-1192.

[1082] T 3073.

[1083] T 4314.

[1084] T 972-3.

[1085] T 1805.

[1086] T 1499-1500.

[1087] T 1633-5.

[1088] T 2747-8.

[1089] T 3189.

[1090] T 718. Compare T 806-7; and compare again T 900 - 901.

[1091] T 1088-9.

[1092] Part Exhibit 66.

[1093] T 901.

[1094] T 3721-2.

[1095] Compare Dwan's evidence at T 913.

[1096] Exhibit 65.

[1097] Ms Jackson, T 207; Ms Gross, T 610; Kennerson, T 2748, then 2789; compare Ms Lees, not an eyewitness, at T 975; Ms Dawson, T 1635; Bowles, T 1805.

[1098] Ms Calvert, T 3192; Molloy, T 3639-40; see also, non-committally, Nemet, T 4134, Chris Wheeler, T 4302, Wilson, T 4571, Wayne McGee, T 4841.

[1099] T 251.

[1100] Exhibit AX, page 2.

[1101] T 252.

[1102] T 274.

[1103] T 3635.

[1104] Dwan, T 699-700, speaking of the Monday evening; Ms Dawson, T 1627-8, speaking of the Tuesday night; Bowles, T 1800-1801 and 1932, also referring to the Tuesday night; Ms Epstein, T 2474-5, 2483, again referring to the Tuesday evening; see also a photograph, exhibit 46, probably taken on the Monday night.

[1105] T 4316; as to the use of that track, see T 4469-70.

[1106] Part exhibit 6, CB 676.1.

[1107] Ms Gross, T 614-5, not identifying Ms Calvert; but see T 647 where she did identify Ms Calvert. Dwan, T 728; Ms Lees T 986; Ms Dawson, hearsay evidence, T 1641; Bowles, T 1810, identifying either Ms Calvert or Molloy, see also T1949; Fowkes, T 2010; Ms Colson, T 2342, compare T 2442; Ms Epstein T 2499; Ms Garrett, T 2863, not identifying Ms Calvert.

[1108] Ms Gross, T 615; Dwan, T 728-9; Ms Lees, T 987; Ms Dawson, T 1646; Fowkes, T 2301-2; Ms Epstein, T 2499; Kennerson, T 2752.

[1109] T 3204-5.

[1110] See, for example, Chris Wheeler at T 4478-80.

[1111] Exhibit BL.

[1112] He cited Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at paragraphs 86-88.

[1113] T 728.

[1114] See T 1992, and a number of the photographs which went into evidence.

[1115] T 440.

[1116] T 314.

[1117] Exhibits T and BZ.

[1118] T 3679.

[1119] T 685.

[1120] T 958-9.

[1121] T 936; and see various photographs, including Part Exhibit 6 at Court Book 739.2.

[1122] See Exhibit J and AH.

[1123] T 1620.

[1124] See Exhibit 46.

[1125] T 1629-31.

[1126] T 1635.

[1127] See Exhibit 48.

[1128] T 1797.

[1129] T 1922.

[1130] Exhibit 48.

[1131] See for instance part Exhibit 6, Court Book 740.2 and Exhibit 48.

[1132] T 2510-2.

[1133] T 546.

[1134] T 669.

[1135] T 552-3.

[1136] Exhibit 68.

[1137] T 3627.

[1138] At least three and a half hours to arrive at SRR south of Turton Track, and then one to one and a half hours to reach Turton Track; T 316.

[1139] T 1990; later, three - four hours, T 2242.

[1140] According to Greig it was at about 2 pm, and according to Fowkes about 10 am.

[1141] Greig T 320, Fowkes 2251.

[1142] Who, unlike Jaskierniak and Ms Douglas, gave evidence.

[1143] T 525.

[1144] T 554, lines 17-29.

[1145] T 671 line 24; T 672 line 14.

[1146] Albeit of a kind suited to walking.

[1147] Or, in the case of Ms Jackson, that area between 25 January and her evacuation on 28 January; and in the case of Ms Gross, that area between 26-29 January.

[1148] Paragraphs 1396-7.

[1149] T197-8.

[1150] T 206, 283.

[1151] T 444.

[1152] T 317.

[1153] T 320.

[1154] T 321.

[1155] T 296.

[1156] T 455.

[1157] T 352.

[1158] T 353, 354.

[1159] T 318, 319.

[1160] Compare T 318 and T 425.

[1161] T 433.

[1162] T 434.

[1163] T 434.

[1164] T 458.

[1165] T 317.

[1166] T 662.

[1167] T 606, 607.

[1168] I think that only Ms Gross gave evidence of such a thing.

[1169] T 730, 731.

[1170] T 724.

[1171] On the Monday night - evidence given by Kennerson which I have rejected; and on the Thursday afternoon - evidence given by Bowles, Kennerson and Ms Garrett, some of which I have accepted.

[1172] And possibly Porn Star.

[1173] T 3554.

[1174] T 932-935.

[1175] T 940-2.

[1176] T 973.

[1177] T 941-2.

[1178] T 942.

[1179] T 951**.**

[1180] T 967.

[1181] T 1178.

[1182] T 1620.

[1183] T 1797.

[1184] T 1791.

[1185] T 1795-6.

[1186] T 1807-8.

[1187] T 1982-3.

[1188] T 2250.

[1189] T 2227.

[1190] T 2264-5.

[1191] T 2261.

[1192] T 2331.

[1193] T 2247-8.

[1194] That was also her evidence. T 600.

[1195] T 1991, 2253.

[1196] T 2262-3.

[1197] T 2327-9.

[1198] T 2334-5.

[1199] T 2342.

[1200] See, respectively, paragraphs [921]-[922] and [1463]-[1465], [1470]-[1473] above.

[1201] T 2510.

[1202] T 2501-2.

[1203] T 2503.

[1204] T 2614.

[1205] T 2496.

[1206] T 2750 - 1.

[1207] T2861.

[1208] T2890-1.

[1209] T1808.

[1210] T 5515-6.

[1211] T 1603; 1721.

[1212] T 2161.

[1213] CB 663.2.

[1214] Exhibits J, AL, AO. Evidence of Bowles T 1787, Ms Dawson 1585.

[1215] Exhibit BK.

[1216] T 4553.

[1217] T 4554.

[1218] T 4557.

[1219] T 4559.

[1220] T 4560.

[1221] T 4564.

[1222] T 4564.

[1223] T 4565-6.

[1224] T 4566.

[1225] T 4568.

[1226] T 4568-9.

[1227] See exhibit CA, which is compatible with allegations made by, inter alia, paragraphs 10A - 10D, 61-63, 63A-63C, 63G-63I of the Defence and Counterclaim.

[1228] T 716-7, 898.

[1229] T 1774-5.

[1230] T 3504, 3551, 3554.

[1231] T 5328.

[1232] Paragraphs [2060]-[2061] above.

[1233] T 2491, 2636.

[1234] T 465.

[1235] T 1987.

[1236] T 1993.

[1237] T 524.

[1238] T 608-9.

[1239] T 662.

[1240] T 647.

[1241] See paragraphs [1287]-[1325] above.

[1242] Paragraph [886] above.

[1243] See paragraphs [933]-[934] above.

[1244] Except for Ure, Mills and "Nick".

[1245] See paragraph [2081] above.

[1246] Media releases 25 and 26 Jan, part Exhibit BF.

[1247] I exclude Ms Garrett from this conclusion, for her role in a practical sense was largely determined by Donato's intentions and his conduct in consequence; and Ms Gross because she only arrived on 26 January.

[1248] Insofar as any such belief was founded on what any protester thought he or she saw when Ms Jackson walked north along SRR, or on what Ms Jackson said on her return, the belief was not soundly based. So far as it was founded upon what Ms Jackson said, it is very doubtful that the defendants could bear responsibility for the same.

[1249] Or perhaps it was a discussion which began on the Thursday night and which resumed the next morning.

[1250] See Exhibit 59. My conclusion involves rejection of the evidence of some protesters.

[1251] I include Jaskierniak and Ms Douglas in this connection.

[1252] See, generally, paragraphs [53]-[54] above.

[1253] See T 5437-9.

[1254] I have not hitherto dealt discretely with the broad and generalised allegation of assault raised by paragraph 11 of the statement of claim. It is an allegation of assault, though in part it alleges batteries. Presumably it is to be understood as an allegation that, in virtue of a direct threat by a defendant - or perhaps another logger acting in concert with the defendants - each plaintiff was put in reasonable apprehension of impending contact by a defendant or other logger.

Whilst the particulars to paragraph 11 direct the reader, indiscriminately, to each of the 53 particulars subjoined to paragraph 5, the flavour of the alleged threats appears within paragraph 11 itself. Thus there is reference to "punching, grabbing, manhandling, uttering threatening words, approaching close with operating chainsaws, throwing stones and other objects onto vehicles and the camp, stepping into the path of the plaintiffs, and physical intimidation, abuse and threats."

It is very clear from that compilation that paragraph 11 seeks to call in aid the variety of alleged misconduct which I have exhaustively examined in these Reasons, and which I have concluded in large part did not occur, or was not proved to have occurred. Again, it calls in aid threats which I have concluded were made, but which caused no fear, let alone fear or reasonable apprehension of impending physical contact. Further again, it refers to the throwing of stones into the camp. I have concluded that this happened. Few plaintiffs gave evidence about it. I would not conclude that such conduct caused any plaintiff to be put in fear or reasonable apprehension of impending contact by a defendant, albeit that, see later in these Reasons, I conclude that it was done to annoy or inconvenience the protesters, and was capable, insofar as it was a cause of depriving any of them of sleep, of causing alarm or fright.

Finally, I should mention evidence given by Ms Jackson that on one occasion Nocera "licked his lips and rubbed his groin in quite an intimidating way" (T 204), he then being a number of metres away and on the other side of the banner; and Ms Epstein's evidence, to which I have earlier referred, that Nocera stuck his tongue out and moved it up and down whilst he was looking at her, that happening near the banner. Nocera denied those allegations, but even if I accepted that they occurred, in the circumstances described I could not be satisfied that they caused fear of, or could have given rise to, a reasonable apprehension of, impending contact.

In all, the plea raised by paragraph 11 of the statement of claim fails.

[1255] As to chainsaws see paragraph [1735]; as to drums, see paragraphs [1736] - [1741] above.

[1256] See paragraphs [1588] - [1589] above.

[1257] See paragraphs [1392], [1379], [1399] - [1400] above.

[1258] See paragraphs [1746], [1754] above.

[1259] As to which, see paragraphs [126]-[127] above, and what follows in these Reasons.

[1260] As to which, see paragraph [2036] above.

[1261] See paragraph [2178] above.

[1262] See paragraph [365] above.

[1263] Exhibit BD and BG.

[1264] See Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317 at [5] per Gleeson CJ, [193] per Gummow and Kirby JJ, and [285] per Hayne J.

[1265] See my discussion in Aldersea and ors v Public Transport Corporation [2001] VSC 169; (2001) 3 VR 499 at [39] - [42], [44] - [45], [57].

[1266] Particularly at [285] - [294].

[1267] [2003] TASSC 149, see particularly at [27].

[1268] All that was suggested was incident debriefing.

[1269] T 2343, 2442-3.

[1270] T 1811.

[1271] T 5452.

[1272] T 5453.

[1273] T 5456.

[1274] T 5446.

[1275] T 5459.

[1276] T 5488.

[1277] Exhibit AZ.

[1278] Exhibit AW.

[1279] Exhibit AX.

[1280] Exhibit AY.

[1281] Exhibit AV.

[1282] Exhibit BA.

[1283] Exhibit 65, referred to earlier in my Reasons.

[1284] Exhibit K.

[1285] Exhibit 81.

[1286] T 2673.

[1287] T 2674.

[1288] T 2692.

[1289] T 5489.

[1290] See, for example, T 2661.

[1291] [1960] HCA 58; (1960) 108 CLR 158.

[1292] [1965] HCA 34; (1965) 114 CLR 164.

[1293] [1956] UKHL 1; [1956] AC 613 (HL).

[1294] T. 202-4.

[1295] Part exhibit M, CB 702.2.

[1296] T. 208.

[1297] See generally paragraphs [108]-[113] above.

[1298] T 364-5.

[1299] His evidence at T 605-606 was overstated in a number of respects; but that does not mean that it was wholly unreliable.

[1300] T 732-733.

[1301] T 701, 710-2.

[1302] T 954.

[1303] T 967.

[1304] T 1196.

[1305] This was a matter said by defendants' counsel to show that McFadzean had a degree of social isolation at that time; to be contrasted with his later entering into a continuing relationship - that relationship beginning at a time when, on his case, he was affected by psychiatric injury.

[1306] See T 1181-2, 1200-1203; and the evidence of Ms Lees at T 970.

[1307] See paragraphs [288]-[294] above.

[1308] T 2689.

[1309] See T 1540.

[1310] Which perhaps presupposed the presence of psychiatric injury.

[1311] See Exhibit 35.

[1312] See, for example, Exhibit 36.

[1313] T 1168, 1195.

[1314] T 1651-2.

[1315] T 4879, see also T 4891.

[1316] T 4882.

[1317] T 4886. Those were counsel's words.

[1318] T 1624, 1628-9, 1639.

[1319] And took part in a videotape in which the voice-over characterised her as "powerful warrior princess of the forests", or something to like effect; T 1770-1.

[1320] T 5453.

[1321] T 1811-1812.

[1322] T 2010-1.

[1323] T 2300.

[1324] In fact it was from December 1999.

[1325] T 2342-5.

[1326] T 2335, 2435.

[1327] T 2337.

[1328] T 2504-5.

[1329] See paragraphs [473] - [475] above.

[1330] See generally [1036] above.

[1331] Dwan, T 692-3.

[1332] I have concluded that numbers dropped off on and from 27 January; but nothing particularly turns on that.

[1333] See paragraphs [1314] - [1325] above.

[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.

Plaintiffs v Defendants

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Judgment (653 paragraphs)

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Cases Cited (19)