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Victorian Supreme Court

Animal Liberation (Vic) Inc v Gasser
Victoria
(1991) 1 VR 51


Case Details
Printable Version
Summary:   The appellants conducted demonstrations outside of the respondent's circus. Evidence was adduced to the effect that the appellants sought to dissuade people from attending the circus. The respondent's commenced proceedings against the appellants for defamation, malicious falsehood and nuisance and sought interlocutory injunctions against the appellants publishing the words concerning the abuse of animals in the circus. The trial judge found in favour of the respondents on the injunctions and nuisance claim. On appeal, the appellants were successful in setting aside the interlocutory injunction against publishing and further demonstrations. The appellants were unsuccessful in having the nuisance by besetting claim overturned.

Judge Crockett, Fullagar and Nathan JJ (Full Court) delivered the opinion of the court.


Opinion of the Court:
[52]
 
This is an appeal as of right, commenced as long ago as 29 January 1989, from orders for interlocutory injunctions made against the defendants appellants by a judge of this court in the practice court on 12 January 1989. We were told by Mr Uren QC, who with Mr Galbally appeared for the appellants, that the appellants had sought from the listing master a speedy hearing of the appeal but had been told that no hearing could be had before now. We observe that the appellants over a period of 10 months took no steps to obtain from a judge or from the Appeal Division itself any directions for speedy hearing of the appeal.-
 
[53]

The plaintiffs respondents conduct a peripatetic circus which we gather visits Victoria in December and January of each year and which in late December and early January presents performances on parkland known as Burnley Oval in the Melbourne suburb of Richmond. It is believed, we were told by counsel, that the land is owned by the local municipality which grants some form of licence to the respondents to occupy for purposes of the circus. At all events, there is no evidence as to what interest, if any, the respondents have in land at Burnley Oval.

The circus produces a number of acts by what might be called domestic animals or animals mansuetae naturae, and also acts by wild animals, or animals ferae naturae, including exotic animals such as African lions. Doubtless, the wild animals spend most of their lives in cages when not performing.

The first appellant, which we shall occasionally call Animal Liberation, is a corporation of which the second appellant is vice president and campaign director, and he is or has been its treasurer as well. Animal Liberation and its members are strongly opposed to the use in circuses of performing animals, and especially of exotic and wild animals. Such use of animals they believe to be cruel and, by implication, unnecessarily cruel. It cannot be said that these beliefs are either obviously unfounded or completely unreasonable, and we think that this court should proceed, as we think the learned primary judge did, upon the footing that these beliefs are and have been at all material times sincerely held by the corporators of Animal Liberation including the second appellant. Similar beliefs are doubtless held by many of the demonstrators hereafter referred to. According to the affidavit of the second appellant Mr Clunies Ross, sworn 10 January last in opposition to the present application, the following are the objects of Animal Liberation:

"(i) to draw the public's attention to the lifestyle of animals in a circus environment - a lifestyle of confinement and inability to fulfil behavioural needs;

(ii) to persuade members of the public not to attend circuses which use performing animals and to support circuses which do not use performing animals, for example Circus Oz; and

(iii) ban the use of caged and performing animals in circuses."

Again according to the affidavit of Clunies Ross, the strategies employed by Animal Liberation in the course of its circus campaign are as follows:

"(i) public education - distributing literature, films and video; speaking at schools, meetings and functions; holding public protests;

(ii) political lobbying - writing to and meeting with politicians and bureaucrats and seeking the introduction of legislative reforms consistent with the first defendant's objects; and

(iii) campaigning, running campaigns against circuses to draw the public's attention to the conditions which animals must endure in a circus environment, endeavouring to persuade members of the public not to patronise circuses which use performing animals, endeavouring to persuade circus proprietors to phase out the use of performing animals and endeavouring to persuade legislators to ban the use of animals in circuses."

We draw attention to the fact that an object of the first appellant, and of its campaigns managed by the second appellant, is to persuade members of the public not to attend circuses.-

[54]

On 2 January 1989, Animal Liberation and about 40 natural persons led by the second appellant conducted a "demonstration" at Burnley Oval from about 1.30 pm until about 3.45 pm or later. At the oval, the afternoon performance of the respondents' circus was scheduled to take place from about 2 pm until about 4.30 pm or 5 pm, and it did take place within the limits of that period commencing somewhere about 2 pm

In order to obtain access to the circus, which was conducted in a large tent or marquee, customers had first to go through a door in a caravan, which was used as a ticket office, and thence it seems out an opposite door of the caravan into the tent. The learned primary judge found as follows:

". . . at about 1.30 pm the demonstrators were led by the defendant Clunies Ross to the main entrance to the circus. The demonstrators then spread out in single file on either side of the entrance where they remained until about 3.45 pm Members of the public wishing to attend the performance of the circus that afternoon were required to pass between the two rows of demonstrators to gain entry. As they passed between the two lines of demonstrators they were offered leaflets which I assume contained material designed to advance Animal Liberation's cause. From time to time the demonstrators chanted 'Ban animal acts'."The only other aspect of the demonstration I wish to refer to at this stage is the fact that some 20 police officers attended the demonstration. Doubtless this occurred because of the publicity given to the demonstration prior to 2 January."

His Honour also found, and there was no dispute about this, that the demonstration was designed to dissuade members of the public from attending the respondents' circus, that is to say, as we understand it, to dissuade those then present at the park from attending the performances that afternoon or later and, by virtue of media publicity and word of mouth, to dissuade persons not then present from attending later performances. The dissuading was not to be by quiet speeches containing reasoned argument, but by other means.

The second appellant during the course of the demonstration made statements of and concerning the respondents to the effect that:

(i) the appellants "had proof of cruelty", that is to say, one infers, of cruel acts on the part of the respondents;

(ii) the respondents had allowed a lion cub to be trampled to death at Rosebud;

(iii) the respondents had thrown a dog against a car.

On 5 January 1989, the respondents commenced by writ this action seeking, inter alia, a permanent injunction restraining the defendants from further publishing the words complained of, and a permanent injunction restraining the defendants from obstructing and interfering with patrons or prospective patrons of the circus, and damages. On the same day the respondents filed a summons for interlocutory injunctions in the same form as those claimed in the writ. The summons was heard in the practice court on 12 January 1989, and on that day the respondents produced in argument minutes of orders by which they sought an injunction against publication of the words complained of and also an injunction restraining the defendants until trial or further order from:

(i) conducting any demonstrations on or adjoining the respondents' circus premises at Burnley Oval . . . during performances of the circus or one hour before and after such performances; and

(ii) obstructing and interfering with patrons or prospective patrons of the circus business of the respondents.-

[55]

The learned judge ordered an interlocutory injunction against publishing the words complained of or any of them, or words to the like effect, and a further interlocutory injunction by which he restrained some of the defendants, including both the appellants, "from conducting any demonstrations on or adjoining the plaintiffs' circus premises at Burnley Oval Richmond, Victoria, during performances of the plaintiffs' circus or one hour before and after such performances." Notice of appeal against this decision was dated 25 January 1989 and this was served, we were told, on 29 January 1989.

The statement of claim dearly disclosed the causes of action of defamation and nuisance. The latter cause of action was pleaded by para17 of the statement of claim which is in the following terms: "Further or in the alternative on the 2nd day of January 1989 the defendant wrongfully obstructed and interfered with the passage of patrons and prospective patrons to the business of the plaintiffs and have thereby committed a nuisance." Particulars were given alleging a demonstration. It was alleged that the words complained of were published, and the nuisance was caused, maliciously and with the intention of injuring the plaintiffs in their circus business. It was contended by the plaintiffs (respondents) and accepted by the learned judge, and it was common ground before this court on appeal, that the statement of claim disclosed a cause of action in injurious falsehood. Affidavits by the defendants deposed that they believed the words complained of were true and that they intended to plead justification. Since January 1989 a defence has been delivered pleading justification.

In dealing with the application to restrain publication of the words complained of, the learned judge referred to the decision of this court in National Mutual Life Association of Australasia Ltd v GTV Corp. Pty Ltd. now reported in [1989] VR 747. He said that, as to what had been called in New South Wales the "special exception" in favour of a defendant in a defamation action, "there is no such special exception where a plaintiff's cause of action is based on injurious falsehood". His Honour held that for this reason he was in no way inhibited by the reasoning in the National Mutual Case from restraining publication of the words complained of.

We think that at this point in his reasoning his Honour was led into error. We think that the mere fact that a plaintiff pleads injurious falsehood, in addition to defamation, is not sufficient of itself to relieve the court from having to be satisfied that there is a very clear case for an injunction before restraining the repetition of defamatory words which the defendants propose to justify and which they have some real and not illusory prospect of justifying. The learned judge made no finding that the words complained of were knowingly false, or even that they were published recklessly or whether they were true or false. It is true that the appellants had what they considered strong reasons to wish to destroy the circus business of the respondents, and that at all material times they wished that the threat of such destruction would persuade the respondents to stop the use of performing animals. But his Honour said: "I am satisfied that the plaintiffs have published the words maliciously (scilicet for the purposes of that element of the cause of action known as injurious falsehood), because they were used by the defendant Clunies Ross as part of the first named defendant's campaign to drive away patrons from the plaintiff's circus." We draw attention to the expression of his Honour, "to drive away". He later said that it was "clearly arguable that the words are false" and that continued publication of the words would cause actual damage to the plaintiffs, meaning damage in respect of their circus business. He added: "In that situation I consider that, although the plaintiffs are not entitled to an interlocutory injunction related to their action for defamation, they are entitled to an injunction . . . related to their action for injurious falsehood."-

[56]

It seems clear that the learned judge refused an injunction "related to defamation" because of his conclusion that the defendants intended to justify and had a real as distinct from a merely illusory prospect of succeeding in that plea. It also seems clear that he granted an injunction against publishing the defamatory matter because the words were used by the appellants"as part of a campaign to drive patrons away from the plaintiffs' circus". One is left with the impression that the learned judge did not give proper weight to the right of the appellants to make statements, which they believed to be true, alleging conduct by the respondents of their business in a way which was cruel to animals, or alleging that one of the proprietors of the circus had committed acts of cruelty upon an animal or animals. His Honour did not say that he found, or that there was an arguable case for the conclusion, that the appellants had made the defamatory statements with knowledge of their falsity or with no belief in their truth, conclusions which would have had a bearing upon whether reliance upon the right of free speech was likely to prove spurious.

If the learned judge had found that there was an arguable case for the view that the appellants had had on the publication dates, or had by the time of the application, no genuine belief in the truth of the defamatory words and had published them (or would in the future publish them) recklessly of their truth or falsehood, and merely in order to assist their overriding objective of compelling the respondents to face the destruction of their business if they did not stop using performing animals in their circus, then in our view it would certainly have been open to him to decide that the balance of convenience did not lie on the side of free speech but on the side of stopping what was quite likely to turn out to be a malicious and injurious falsehood.

But, as we understand the reasons for judgment, his Honour made no such findings and, in relation to the defamatory words, did not appear to give appropriate weight to the right of the appellants to free speech, or to the importance to the community of exposing acts of cruelty to animals.

In these circumstances, we are of opinion that the interlocutory injunction against publishing the defamatory words cannot stand and should be set aside.-

[57]

Turning to the injunction which restrains the appellants from conducting any"demonstrations", one of the appellants' numerous criticisms of the orders, being criticisms which were not argued before the learned judge despite clear opportunity to do so, was that this injunction was too uncertain to be allowed to stand. It is a well known principle that the court should ensure that the language of any order for injunction is such as to render it quite plain what it permits and what it prohibits, especially since a breach renders the person enjoined liable to imprisonment: see, for example, as to permanent injunctions, Low v Innes (1864) 4 De GJ and Sm 286, at pp. 295-6 and 46 ER 929, at p. 933 (where, if we may say so with respect, Lord Westbury's criticisms of the orders made by Vice Chancellor Page Wood seem perhaps unduly harsh) and also Hackett v Baiss (1875) LR 20 Eq 494, at p. 499; Attorney General v Staffordshire County Council [1905] 1 Ch 336, at p. 342 and Ellerman Lines Ltd. v Read [1928] 2 KB 144. As to interim injunctions, see United Fruit Co. v Leyland and Co. (1930) 47 TLR. 33 and Thompson Schwab v Costah [1956] 1 All ER 652, at p. 655. See also Halsbury's Laws of England, 3rd ed., vol. 21, p. 420 and Spry, Equitable Remedies, 3rd ed., pp. 357-9.

We were invited to compare the injunction of the present case, prohibiting the conducting of "demonstrations", with the more limited and more precise terms of the interlocutory injunctions pronounced by Murphy J. in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, at p. 391. For a number of reasons it goes against the grain to uphold the submission that the injunction is uncertain. First, the appellants had ample opportunity to take this objection before the learned primary judge and did not do so. Secondly, this is a case where we think there would be much less uncertainty in the minds of the lay appellants than might be generated in the mind of a lawyer. Thirdly, it is quite plain that, in ordering the interlocutory injunctions, the learned judge was making procedural orders for the future course of the action by which the issues were to be finally determined at an early date, and was in a real sense endeavouring to preserve the status quo, and his wide discretion may well have justified a much wider order to the effect that none of the defendants should go or remain upon any land being part of Burnley Park during or within one hour before or after any circus performance. His Honour must have considered that going upon the land was not the nub of the matter for the appellants - rather was it necessary, in order to preserve the status quo, that the leadership, management or conducting of a "demonstration" should be prohibited.

Notwithstanding these considerations, we have concluded reluctantly that the order which prohibits the conducting of any "demonstrations" is on final analysis too uncertain to be allowed to stand, once challenged. If the challenge had been mounted before his Honour he would doubtless have made a narrower order himself. The order for that injunction should be set aside, raising the question whether this court should make any order in lieu thereof pursuant to R64.15(2) of the Rules.

Against making new injunctions in lieu of the old one, it might be said that the evidence of the present case is not as clear as it might be as to the actual acts of demonstrators which brought about the intimidation and obstruction and arguments. It could also be said that the interlocutory injunction was granted as part of a "package deal" setting out the procedure which the litigation must follow, and that the respondents plaintiffs have now allowed an unconscionable time to elapse between the making of the interlocutory order and the still pending trial, whereas the learned judge was providing for a trial calculated to take place in a few months, not later than May or June of 1989. On the other hand, Mr Uren for the appellants made it clear he did not assert that there had been any undue delay by the plaintiffs in prosecuting the action. Further, the fact is that the circus should be due in Richmond again at the month of writing this judgment, and we think that the plaintiffs should be given some further respite from arguably illegal acts for a further few months, subject to an undertaking to prosecute the action with diligence and without avoidable delay.-

[58]

The male respondent says in his affidavit: "For the people to enter the circus they had to walk past the ticket office and the 35 to 40 chanting protesters." The female respondent says in her affidavit: "The demonstrators ... were on both sides of the entrance to the circus tent which is through a caravan referred to as the ticket office. (They) were carrying placards and handing out leaflets. They were intimidating the patrons and were intent on obstrucing their entry to the circus. Some of the demonstrators engaged the patrons in discussion and I saw at least one argument. The demonstrators were aggressive in their manner and obstructed access to the circus tent by locating themselves around the ticket office."

Mr Uren, in the course of a penetrating argument, made what we think were some rather extravagant submissions about what he referred to as the right of free speech and the right to demonstrate. In our opinion he put the scope fo these rights too largely. Rights at common law, as in equity, are basically the reflection of duties owed by others, and the key to freedom as distinct from licence is that a person should be able to conduct himself as he chooses PROVIDED THAT the conduct does not injure another.

It is one thing to attempt to dissuade another from a course which he she wishes to pursue, by spoken words, and by holding up placards and signs, and or by some play acting. It is quite another thing to attempt the dissuasion by putting the other person, and or the children accompanying him her, in fear of personal safety, or by driving them away by making the surroundings intolerable, as by loud noise or unpleasant odours, or express or implied threats. If an elderly person is accompanying young children to a circus performance the attempts at dissuasion might sometimes utilise illegitimate intimidation, and effect the intimidation, by subtle means. For example, if such patrons in order to reach the ticket office, are forced to "walk the gauntlet", so to speak, between two long lines of jeering people about 10 feet or less apart, many waving placards and shouting such things as "shame, cruel, ban animal acts", and affecting at the same time a hostile mien or demeanour, that is calculated to put the children in fear, and to make the patrons fearful for the children if not for themselves, the more so if the whole scene is stage managed to include more than 20 police officers as well as television staff with television cameras. Such conduct may therefore be restrained by the courts, and an arguable case that such conduct was taking place may support interlocutory injunctions.-

[1991] 1 VR 51 at 59

Mr Uren submitted at one stage that "picketing" does not become a nuisance unless there is a besetting, and that there is not a besetting unless there is a surrounding with hostile intent. The submission employed words used by judges in applying the law to the facts of particular cases, and their words are not to be construed in the same way as words of a statute but are to be construed secundum subjectam materiam. We think it clear that a besetting is only one of the ingredients that may make a picketing into nuisance, and that a besetting may include, for example, lining up so as to compel would be patrons to "walk the gauntlet" of shouting picketers, so as to cause such patrons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their safety or fear of harmful effects upon the accompanying children. A besetting includes a surrounding with hostile demeanour so as to put in fear of safety. Compare the language of Murphy J. in the leading case of Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, at pp. 388-9. It is to be noted also that his Honour there found, at p. 390, that the defendants had committed torts of "intimidations". What may be required to deter or intimidate a grandmother and young children accompanying her may be much less than might be required in order to deter or intimidate, for example, a healthy male truck driver.

Mr Uren criticised, as unjustified by the evidence, the learned judge's finding that the patrons had to walk for some considerable distance between two roughly parallel lines of demonstrators. He suggested the evidence was consistent with the patrons passing through a line at right angles, as by"crossing the T". In our opinion, the criticism is not justified. It must be borne in mind that the predominant object of the demonstrators, as of the present appellants who organised them, was to deter patrons from attending the circus, to "drive away" the customers, and in all the circumstances there was ample justification for the learned judge to infer, on a balance of probabilities that the lines of demonstrators were roughly parallel lines constituting a lengthwise walkway through which the patrons must pass for some distance as by waLking the gauntlet. It seems highly probable that the demonstrators or most of them made clear their hostility to the customers. Patrons are not "driven away" by friendly smiles and sighs of sadness.

As we have indicated above, we have concluded that the injunction against conducting demonstrations must fall on the ground that it does not make clear enough what is permitted and what is prohibited, but we are far from concluding that his Honour's reasoning was wrong, or that more specific injunctions could have been successfully attacked on appeal.-

[59]

Mr Uren referred, of course, to the two important leading cases of Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 and the Dollar Sweets Case. Despite his arguments, we do not think that Murphy J. in the latter case, or the judges in the former case, were purporting to lay down the only circumstances which would turn lawful picketing or lawful demonstrating into a nuisance, nor do we think that they were laying down a hard and fast definition, for all nuisance cases, of what constitutes a "besetting". Far less were any of them purporting to set out the only circumstances in which an interlocutory injunction would go to prevent the commission of a nuisance constituted by picketers or so called"demonstrators".

In the Dollar Sweets Case Murphy J. said, at pp. 388-9: "Besetting is appropriately a term applied to the occupation of a roadway or passageway through which persons wish to travel, so as to cause those persons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their own safety or the safety of their property." One might add, "or for that of their children or grandchildren". And we think that besetting includes the formation of a human passageway of persons with hostile demeanour and shouting, etc., thereby forcing elderly persons and children to walk the gauntlet, and thereby putting them in fear of safety.

In the present case, the learned judge made the remarks, which we have earlier quoted, immediately after citing the well known passage from the judgment of Mason JA, as he then was, in Sid Ross Agency Pty Ltd. v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760, at p. 767, which was cited by Murphy J. in Dollar Sweets. In our opinion the learned judge was entirely correct in what he said, and what he said is neither inconsistent with the reasons of Murphy J. nor inconsistent with the reasons of Mason JA

The evidence in the present case speaks of elderly people, including"grandmothers", taking children to a circus performance. One may suppose that a group including elderly people, accompanied by young children, has to "walk the gauntlet" between two lines of demonstrators whose predominant purpose is BY THE DEMONSTRATION to deter the people from going on to the performance or, failing that, at least to persuade them never to come again. The demonstrators call out loudly in unison, "Ban all animal acts", and hold out placards and offer pamphlets which indicate, inter alia, that the people should be ashamed of themselves for taking themselves and the children to such acts of cruelty as animal circus performances. From time to time the demonstrators argue with the people and wave documents in or close to their intended path. In such circumstances one might well conclude on an interlocutory application that the intention of the demonstration arguably is to persuade the people into non attendance, not by calm and reasoned argument, but by making them feel intimidated as well as held up to ridicule and contempt, indeed by driving them away. One may well ask, how else was the demonstration to achieve the deterring? One can well imagine that the people, children included, would feel hemmed in by hostile demonstrators, that is to say, by persons whose attitude and demeanour, if not "intent", is hostile. All this is plainly calculated to put the customers and children in fear. The idea of the demonstrators is to appear hostile to those who attend the circus premises, otherwise the persuasion would be most unlikely to succeed in deterring them from attending.-

[61]

In our opinion it was open to the learned judge to consider that some such conduct had occurred and that such conduct in all the circumstances was sufficient to constitute a nuisance. Certainly he was entitled to conclude that an arguable case of nuisance had been made out. We are not satisfied that the learned judge applied any wrong test in arriving at this conclusion or that he took into account matters which he was not entitled to consider, or that he failed to consider matters which he was bound to consider.

It was argued that his Honour had failed to give any or any proper weight to a postulated "right to demonstrate", or to the "right of free speech", and that he failed to balance, on the one hand, the pros and cons of permitting some infringement of the rights of the plaintiffs by way of public nuisance in a balance against, on the other hand, the pros and cons of restricting by injunction the rights of the demonstrators to free speech.

In the first place, we think it is clear that his Honour did consider the kind of balance referred to. He expressly referred to the balance of convenience and to "the rights of persons to assemble and demonstrate lawfully". It seems unlikely in the extreme that he mentioned them without considering them, or that he considered them without balancing them against the rights of the plaintiffs.

In the second place, the able and detailed attack made by Mr Uren upon the reasons for judgment, as well as the order, of the primary judge, was of a kind more suited to an attack on the making of a final injunction than to an attack upon the making of an interlocutory injunction. The attack involved a careful analysis as to what was said to be necessary in order to turn a demonstration (an uncertain concept) into a nuisance. But it was not necessary for his Honour to do more than decide that a substantial arguable case was made out for the conclusion that a nuisance had been, or would be, caused, or both. In this connection we would refer to the important judgment of Tadgell J. in the unreported Full Court case of Lord Mayor Councillors and Citizens of Melbourne v Hamas Pty Ltd, delivered on 20 February 1987: see also Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170, especially at p. 176.

At the risk of repetition, we would say that there was before the learned primary judge evidence sufficient to support, upon an interlocutory application for injunctions, the conclusion that there was a sufficiently strong case that the demonstrators sought to deter persons (whether or not present) from , attending the circus by subjecting the persons present, including elderly people escorting young children, to intimidation constituted by accusations (some by placard and some shouted) which not merely carried the plainest of implications that the persons should be ashamed of themselves for attending, and for escorting children to, the circus, but were calculated to put children and or their escorts in fear. There was a prima facie case that the demonstrators were hostile and argumentative, and that they obstructed the patrons by, inter alia, forcing them to walk the gauntlet of shouting demonstrators who were waving placards, and by crowding around, so as to obstruct, the entrance to the ticket office. For deterrence of persons not present the demonstrators doubtless relied on word of mouth and the news media.-

[62]

The affidavit of the male respondent states that: "The protesters stood alongside the ticket office at the entrance to the tent and held placards which read 'Stop Cruelty to Animals', 'Saddest Show on Earth' and 'Animals Out People In'. For people to enter the circus they had to walk past the ticket office and the 35 to 40 chanting protesters who were present. I heard at least one argument between a member of the first named defendant and patron. Some 25 police were in attendance. As a result of the actions of the defendants I have now employed a guard to protect the assets of the circus."I heard the statements referred to in para4 and para8 of the statement of claim being made to members of the media and public by the second named defendant during the course of the demonstration . . . I further heard on the Channel HSV 7 interview the second named defendant (Mr Clunies Ross) state that 'this is only the start of demonstrations and there will be many more'."

The affidavit of the female respondent, who was not cross examined although her husband was cross examined, states, as set out earlier in these reasons:

"The demonstrators . . . were on both sides of the entrance to the circus tent which is through a caravan referred to as the ticket office. The demonstrators were carrying placards, chanting and handing out leaflets. They were intimidating the patrons and were intent on obstructing their entry to the circus. Some of the demonstrators engaged the patrons in discussion and I saw at least one argument. The demonstrators were aggressive in their manner and obstructed access to the circus tent by locating themselves around the ticket office."

In our opinion the evidence and the findings justified interlocutory injunctions.

The appeal will be allowed in part and the injunctions contained in the order of the judge made 12 January 1989 discharged. But orders will be made in lieu thereof. Upon the respondents renewing their undertaking as to damages, and upon their further undertaking to use their best endeavours to have the action set down as soon as practicable for trial not later than March 1990, the court will order, in lieu of the injunctions set side, the following orders: That the first appellant by its servants and agents, and the second appellant by himself and his agents, be restrained until 31 March 1990 or further order:

(1) from obstructing or interfering with the passage across Burnley Oval, Richmond from its boundaries to the plaintiffs' circus premises at the said oval of customers or intending customers of the plaintiffs' circus, and from anywhere inciting others to engage at the said oval in such obstructing or interfering;

(2) from forming at the said oval, and from anywhere inciting others to form at the said oval, lines of persons less than 10 metres apart between which customers or intending customers of the said circus must pass in order to obtain reasonable access to the said circus premises;

(3) from intimidating at the said oval, and from anywhere inciting others to intimidate at the said oval, customers or intending customers of the said circus by shouting or by threatening words or gestures or by waving of hands or placards or papers in the face or path of any such customers or intending customers;

(4) from jostling, or intentionally touching with the body or with documents or papers, at the said oval any customers or intending customers of the said circus, and from anywhere inciting others to engage in such conduct at the said oval.-

[63]

There should be no order in respect of costs of the appeal.


 

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