What should you do when a bunch of protestors is outside your business blocking customers from getting in? Any lawyer will tell you to sue the protestors. But what if the protest group is a rabble and there is no legal entity to sue? Well, that is where things get tricky.
The Fertility Control Clinic in Melbourne provides family planning and reproductive services. For decades, members of the Helpers of God’s Precious Infants group have protested outside the clinic targeting women using the clinic’s services. Rather than sue the protestors, the clinic took the Melbourne City Council to court.
In a clever argument the clinic said the Council had failed to stop the group’s intimidation of staff and patients, which amounted to a general nuisance.
In NSW and Victoria there is legislation that obligates councils to investigate and remedy all nuisances in their municipality. Where a nuisance is found to exist, the Council must take action. The Melbourne Council investigated a specific complaint made by the clinic in December 2013 but found that the actions of God’s Helpers (while annoying) did not fall within the legal definition of nuisance.
The clinic asked the Supreme Court of Victoria to compel the Council to exercise its powers and take action against the protestors.
The clinic lost the case for a legally correct but rationally weird reason. The Court said that when a decision maker like the Council is authorised by law to form its own opinion on a factual question (such as whether God's Helpers are a nuisance) as a precondition to taking action, even if its opinion is plainly wrong that's tough. The Court can't intervene.
The other interesting dimension of this case was about whether the council could declare the protestors a nuisance if that meant infringing their rights of religious expression and free speech. In a neat twist the Victorian Human Rights Commission made a submission that managed to rationalise that it was okay to infringe the rights of the protestors in circumstances where their actions were infringing the rights of others, such as the women who were trying to visit the clinic.
So as it turns out, you can be a group which is annoying (but not a legal nuisance) and councils can make bad decisions for the wrong reasons, but courts can be powerless to do anything about it. Which makes for some pretty unsatisfying law in this case.