McFadzean v CFMEU (2007) VSCA 289

False Imprisonment and the Boundaries of Reasonable Escape

Court

Victorian Court of Appeal

Judges

Warren CJ, Nettle and Redlich JJA

Citation

[2007] VSCA 289

Date

13 December 2007

Material Facts

In January 1999, the Otway Ranges became the setting for an extraordinary standoff between environmental protesters and loggers - a confrontation that would test the boundaries of false imprisonment law.

The anti-logging protesters, including Gavan McFadzean and ten others, had been disrupting logging operations for some time. On Sunday 24 January, they discovered a logger working on what should have been a day off. When they confronted him, the situation escalated. As the protesters tried to leave in their cars, loggers blocked the gate, trapping them. One protester, Dawson, was assaulted. That night, rocks were thrown through protesters' car windows.

The next day, Monday 25 January, about 60 loggers, their families, and Jane Calvert from the Construction, Forestry, Mining and Energy Union arrived at the intersection where the protesters had camped. Calvert, clearly in charge, delivered an ultimatum: "If any of you wish to leave, leave now, because you won't be permitted to leave once the picket is in place."

The protesters stayed. For the next five days, the loggers maintained their "picket" - a human blockade across Seaview Ridge Road that appeared to trap the protesters at their camp. The loggers didn't just stand there quietly. They ran chainsaws and generators near the camp, beat makeshift drums, threw stones at tents, and strung up cans on fishing lines in the bush to detect anyone trying to leave.

Police knew about the situation. Their roster instructions read: "logging contractors have blockaded the green demonstrators and set up an official picket line indicating that they will not allow the Greens to leave the area." But under orders from Chief Inspector Robinson, police would only prevent breaches of the peace, not intervene in the picket itself.

The protesters had three theoretical ways out:

Through the picket line on the road (blocked by loggers)
Asking police for help (the "police gate")
Walking through the bush to Turton Track, about 1.5km away

Two protesters, Greig and Fowkes, actually did walk out through the bush on day two - and then walked back in. Others, like Jackson (who needed psychiatric care) and McFadzean (with eye problems), were eventually allowed out for medical reasons. The rest stayed until Friday morning when the loggers finally removed their picket.

The protesters sued for false imprisonment, claiming they'd been trapped against their will. After a 63-day trial, the judge found no false imprisonment because the protesters could have left via the "police gate" or the "bush gate." The protesters appealed.

Issues

Can you falsely imprison someone if they have unreasonable or difficult means of escape available?

Sub-issues:

Does having the option to call police for help mean you're not imprisoned?
When is an escape route "reasonable"?
What if people choose to stay for their own reasons while also being prevented from leaving normally?

Key Reasoning

The Police Gate Problem

The Court of Appeal disagreed with the trial judge on a crucial point of law. The trial judge thought that if protesters could have asked police for help, they weren't truly imprisoned. The Court of Appeal said this was wrong:

"Just as an intentional wrongdoer should not be heard to defend a claim of false imprisonment on the basis that a more courageous victim might have escaped by an unreasonable means of escape, a wrongdoer should not be heard to defend a claim of false imprisonment on the basis that a more sanguine victim would have called the police."

The Court recognised that requiring someone to call police to escape wrongful detention doesn't make the detention any less wrongful. The imprisonment continues until release is actually effected.

The Bush Gate Analysis

But the Court spent considerable time analysing whether walking through the bush was a "reasonable" means of escape. They identified four factors for assessing reasonableness:

1. Threat or danger to self

2. Threat to property

3. Distance and time

4. Legality

The evidence showed the bush route was difficult - steep terrain, dense vegetation, poor visibility, requiring people to hold onto trees, taking about two hours. But critically:

Multiple protesters successfully made the journey
These were experienced environmental activists familiar with bush conditions
They had appropriate clothing and equipment
No one who attempted it suffered significant injury

The Court emphasised context: "What's reasonable for young, fit, experienced bushwalkers might not be reasonable for elderly people, parents with children, or those with disabilities."

The "Wish to Stay" Complication

Perhaps most importantly, the trial judge found the protesters didn't actually want to leave - they wanted to maintain their protest and prevent logging. Up to January 26, their "principal reason" for staying was to block work at the logging site. This created a causation problem: were they there because they were imprisoned, or because they chose to be?

The Court explained: "The fact that the defendant's conduct may have influenced the plaintiff's decision to remain is not sufficient unless the conduct has overborne the plaintiff's will."

Decision/Holding

The Court of Appeal dismissed the appeal, upholding the trial judge's finding of no false imprisonment. They held:

1. The "police gate" theory was wrong in law - ability to call police doesn't negate false imprisonment

2. BUT the "bush gate" was a reasonable means of escape for these particular protesters in these circumstances

3. Since reasonable escape was available, there was no total restraint and thus no false imprisonment

4. The protesters' own wish to maintain their protest, not just the loggers' blockade, kept them at the camp

Key Quotes

"The essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will."

On the essence of false imprisonment

"Logic and common sense suggest that, just as an intentional wrongdoer should not be heard to defend a claim of false imprisonment on the basis that a more courageous victim might have escaped by an unreasonable means of escape, a wrongdoer should not be heard to defend a claim of false imprisonment on the basis that a more sanguine victim would have called the police."

On calling police for help

"If a victim is confined to an island, and the only means of egress is by swimming through dangerous waters to the mainland, there is no reasonable means of egress and the victim's confinement to the island is likely to amount to false imprisonment."

On reasonable escape routes

"Imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him."

On partial versus total restraint

"His task was to assess the reasonableness of egress through the bush gate for this group of plaintiffs who it appeared were not unfamiliar with a bush environment and who had chosen to remain in this area of bush as their stamping ground for a protest about logging."

On context mattering

Significance

This case establishes important boundaries for false imprisonment claims:

1. Reasonable escape defeats the claim

If there's a reasonable way out, even if it's difficult or inconvenient, there's no false imprisonment. The law doesn't require your captors to make escape easy or pleasant.

2. Context is everything

What's "reasonable" depends entirely on who you are. These experienced bush protesters couldn't claim that a challenging bush walk was unreasonable for them, though it might be for others.

3. Mixed motives matter

When someone stays partly by choice (to maintain a protest) and partly due to restraint, courts will examine whether their will was truly overborne or whether they made a calculated decision to remain.

4. Police aren't a get-out-of-jail-free card

The case confirms that wrongdoers can't defend false imprisonment by saying "well, you could have called the police." But it also shows that if you have reasonable physical means of escape, you can't ignore them and claim imprisonment.

The case reminds us that false imprisonment protects against total restraint of liberty. Inconvenience, even substantial inconvenience, isn't enough. For these protesters, their commitment to their cause meant they chose to endure difficult conditions rather than take an available, albeit challenging, path to freedom. The law found that choice defeated their claim.