Climate protester Jordan Brown's lawyers opened their trial against Victoria Police on Monday, claiming officers' use of oleoresin capsicum (OC) spray on him at a mining protest was violent and excessive.
They claim it is the first class action of its kind to be brought in Australia, with the trial set to last for more than two weeks, with Mr Brown and Victoria Police members expected to give evidence.
Mr Brown is claiming damages from police after being sprayed while protesting outside the International Mining and Resources Conference at the Melbourne Exhibition Centre in October 2019.
His barrister Fiona Forsyth KC said Mr Brown was passive, unarmed and standing still with his back turned when he was sprayed.
"It's entirely objectively unreasonable to see Mr Brown as a threat in any way," she told the Supreme Court.
Videos played to the court on Monday showed two protesters climbing poles outside the exhibition centre and unfurling a banner on October 30, day three of the conference.
Mr Brown is among dozens sprayed by officers trying to disperse the crowd to arrest one of the climbers.
He claims to have suffered pain and burning to his face after being sprayed in the head and neck, before he was doused a second time while trying to run away, Ms Forsyth said.
"The use of force of any kind on Mr Brown at that time was entirely unnecessary," Ms Forsyth said.
Police can be heard saying "it had to happen, we weren't getting anywhere" and "don't f*** with us anymore" after spraying the crowd, in the footage played to court.
Officers are also heard saying "anyone affected by spray? No, thank you" and then laughing.
Ms Forsyth said an expert due to be called as a witness would discuss the dangers of using OC spray.
"She refers to quotes from a Victoria Police officer who described the pain as like two cigarette butts being jammed in your eyes," she told the court.
Ms Forsyth also accused police of committing a "series of batteries and assaults" on Mr Brown by pushing, crushing and grabbing him, which in combination with the spray was a disproportionate use of force.
He was not given any aftercare by police and claims to have suffered burning eyes and skin, causing him both physical harm and "long-term psychological damage", his barrister said.
The class action will claim officers at the protest violated Victoria Police procedures, policies, the Crimes Act and the Charter of Human Rights in their alleged use of unlawful force.
However, Victoria Police barrister Sam Hay KC argued that officers' use of force was not disproportionate and therefore lawful, as protesters were impeding police from making an arrest.
"Mr Brown and a number of people piled into that area, locked arms, stayed there, and actively resisted their attempts to apprehend the climber," he told the court.
"The scene was chaotic as protesters pushed back against police and sought to interfere with the arrest."
Outside court, Mr Brown's solicitor Grahame Best said the case was the first class action of its kind in Australia, and those signed up include every person sprayed at the protest.
"It will be novel in that sense," he told reporters.
He hoped the class action would set a precedent for how Victoria Police can use OC spray in the future.
The trial before Justice Claire Harris continues on Tuesday.
